Investigation Report No. 2623
File No. / ACMA2011/1257Licensee / TCN Channel Nine Pty Ltd
Station / TCN Sydney
Type of Service / Commercial television
Name of Program / 60 Minutes
Dates of Broadcast / 5 June 2011 and 12 June 2011
Relevant Code / Commercial Television Industry Code of Practice 2010
Clauses 4.3.1, 4.3.3 and 4.3.4
Date Finalised / 1 March 2012
Decision / Breach of clause 4.3.3 (regard to feelings of relatives)
Breach of clause 4.3.4 (provide warning)
No breach of clause 4.3.1 (accuracy and viewpoints)
The complaints
The Australian Communications and Media Authority (the ACMA) received two complaints about a segment of the program 60 Minutes, broadcast by TCN Channel Nine Pty Ltd, the licensee of TCN, on 5 June 2011. The first complainant also complained about a subsequent follow-up in the ‘Mailbag’ segment of the program the following week.
The segments dealt with the case of a man who will be referred to in this report as A, who has been convicted of the murder of his fiancée, who will be referred to in this report as B. The first complainant alleged that the segment broadcast on 5 June 2011 was neither ‘materially correct [n]or representative of opposing viewpoints fairly’. This complainant was also concerned about vision of B’s body broadcast on both 5 and 12 June. He alleged that the vision shocked and upset B’s relatives and that many viewers would have found it inappropriate. (The complainant is B’s brother.)
The second complaint was about vision of the corpse of a baby, displayed during the segment broadcast on 5 June 2011.
The complaints have been investigated in relation to clauses 4.3.1, 4.3.3 and 4.3.4 of the Commercial Television Industry Code of Practice 2010.
Matters not pursued
The first complainant alleged that the segment broadcast on 5 June 2011 was ‘anything but balanced’. Neither fairness nor balance is a code requirement for current affairs programs on commercial television. Such programs may take a stance and favour a particular point of view, as long as the material does not breach code requirements, most pertinently the requirements in clause 4.3.1 to present factual material accurately and represent viewpoints fairly. Relevant considerations in the complaint have been assessed against these requirements.
This complainant also expressed concerns about the provenance of the photographs of B’sbody. This is not a matter which raises issues in relation to the licensee’s compliance with the Broadcasting Services Act 1992, licence conditions or the code of practice. As such, the matter is not within the ACMA’s jurisdiction to investigate.
The program and the segments
The program 60 Minutes is a current affairs program broadcast on a weekly basis.
The segment broadcast on 5 June 2011 was entitled ‘Reasonable Doubt’. The reporter stated in his introduction to the segment:
REPORTER
He was portrayed as a greedy, cold-blooded killer. And for almost 16 years [A] has languished in prison for his crime. [A] was found guilty of drowning his fiancée in the bath just weeks before their wedding day. He’s always claimed he’s innocent. Of course, a lot of inmates say that. But, as I’ve discovered, the case against [A] may well have been flawed from the start.
The broadcast largely focused on the forensic evidence in the case. A law professor, who will be referred to in this report as Professor C, gave his views on the subject and there was an interview with the pathologist who had conducted the autopsy, who will be referred to in this report as Dr D. The broadcast showed a crime scene photograph apparently taken shortly after B’s body was discovered, and autopsy photographs of B’s shins. It also showed a still colour photograph of a baby’s corpse, which was on-screen for most of the following commentary about Dr D:
REPORTER
The jury never heard that he’d previously botched autopsies into the deaths of three babies. Despite severe injuries suggesting child abuse, like the horrific bruising on this little boy, [Dr D] made a finding of natural causes. So no assault charges could be laid.
The ‘60 Minutes Mailbag’ segment broadcast on 12 June 2011 presented viewers’ reactions to ‘Reasonable Doubt’. In the course of summarising the issues involved, the broadcast displayed two of the photographs of B’s body which had been shown during the broadcast the week before (the crime scene photograph and one of the autopsy photographs).
‘Ordinary reasonable listener/viewer’
In assessing content against a code, the ACMA considers the meaning conveyed by the relevant material. This is assessed according to the understanding of an ‘ordinary reasonable listener/viewer’.
Australian courts have considered an ‘ordinary reasonable reader’ (or listener to viewer)’ to be:
A person of fair average intelligence, who is neither perverse, nor morbid or suspicious of mind, nor avid for scandal. That person does not live in an ivory tower, but can and does read between the lines in the light of that person’s general knowledge and experience of worldly affairs.[1]
The ACMA asks, what would the ‘ordinary reasonable listener/viewer’ have understood this program to have conveyed? It considers the natural, ordinary meaning of the language, context, tenor, tone, inferences that may be drawn, and in the case of factual material, relevant omissions (if any).
Once this test has been applied to ascertain the meaning of the broadcast material, it is for the ACMA to determine whether the material has breached the code.
Assessment
This investigation is based on submissions from the complainants and the licensee and a copy of the broadcast provided to the ACMA by the licensee.[2] Other sources used have been identified where relevant.
Issue 1: Broadcast of factual material
Relevant code clause
Commercial Television Industry Code of Practice 2010
News and Current Affairs Programs
4.3 In broadcasting news and current affairs programs, licensees:
4.3.1 must broadcast factual material accurately …, having regard to the circumstances at the time of preparing and broadcasting the program.
Considerations generally applied by the ACMA in assessing whether material complained of was subject to, and/or compliant with, the obligation to present factual material accurately are at Appendix 1 to this report.
Complainant’s submissions
The complaint to the licensee relevantly included:
I do not believe that the 60 Minutes broadcast was … materially correct … It was sadly devoid of material facts that brought about [A]’s conviction …
60 Minutes further perpetuated this grossly inaccurate portrayal of the case by failing to mention, despite presumed research, that these forensic evidence issues have been the subject of investigations by the Solicitor General on behalf of the Attorney General following a Petition for Mercy lodged by [A] with the South Australian Governor, as well as complaints to the South Australian Medical Board lodged by [A] against both Dr [C] and his deputy, [name], which led to action in the Supreme Court of South Australia, culminating in both an appeal to the Full Court of the Supreme Court in South Australia and an application to seek leave to appeal in the High Court of Australia. All of which were unsuccessful.
It is this deliberate deception by 60 Minutes in withholding material facts surrounding the case that I wish to complain about.
Finding
The licensee did not breach clause 4.3.1 of the code in relation to broadcast of factual material in the broadcast of 5 June 2011.
Reasons
From the complaint, the complainant’s concern is with omissions in the presentation of factual material. Licensees are not required to present all factual material available to them. The omission of some factual material will only result in a breach of clause 4.3.1 if the omission means that the factual material actually broadcast is not presented accurately.
It is accepted that the broadcast did not include specifics of the investigations, petition, complaints, action, appeals and application detailed by the complainant. However, the broadcast did include information that since A’s conviction there have been at least one appeal; three ‘hearings’; and three attempts to ‘have [Dr D]’s vital evidence re-examined’:
PROFESSOR C
By the time the appeal came up, he had this finding against him.
[4:38 minutes into the segment]
REPORTER
In three separate hearings since the trial, Dr [D] has changed his story.
[10:10 minutes into the segment]
REPORTER
[A’s daughter] and her Dad’s defence team have tried three times to have [Dr D]’s vital evidence re-examined. They have now mounted a fourth appeal.
[11:59 minutes into the segment]
Accordingly, an ordinary, reasonable viewer would have understood that A’s trial has not been the only occasion on which the forensic evidence had been presented and considered. Since the broadcast also included the information that A has been in jail for ‘almost 16 years’, such a viewer would also have understood that these further appeals and hearings have confirmed the original verdict.
As such, the omission of the material referred to by the complainant did not result in inaccuracy in the material that was actually broadcast.
Issue 2: Representation of viewpoints
Relevant code clause
Commercial Television Industry Code of Practice 2010
News and Current Affairs Programs
4.3 In broadcasting news and current affairs programs, licensees:
4.3.1 must … represent viewpoints fairly, having regard to the circumstances at the time of preparing and broadcasting the program.
Complainant’s submissions
The complaint to the licensee relevantly included:
I do not believe that the 60 Minutes broadcast was … representative of opposing viewpoints fairly.
Finding
The licensee did not breach clause 4.3.1 of the code in relation to representation of viewpoints in the broadcast of 5 June 2011.
Reasons
The broadcast included the viewpoints of Professor C, Dr D and A’s adult daughter. Of these, only Dr D’s could be regarded as an ‘opposing’ viewpoint, since both Professor C and A’s daughter were of similar opinions as the reporter in respect of the evidence in the case against A.
There is no evidence to indicate that Dr D’s viewpoint was not represented fairly, eg by editing material so that important comments of his were omitted, or answers that he gave to one question were presented as though they were answers to another. Accordingly, there is no basis for a finding that the licensee breached the requirement at clause 4.3.1 of the code to represent viewpoints fairly.
Issue 3: Regard to feelings of relatives
Relevant code clause
Commercial Television Industry Code of Practice 2010
News and Current Affairs Programs
4.3 In broadcasting news and current affairs programs, licensees:
4.3.3 should have appropriate regard to the feelings of relatives … when including images of dead or seriously wounded people.
Relevant material
The relevant material comprised the following vision items:
Duration of vision / Vision / Contextual audio[3]‘REASONABLE DOUBT’ BROADCAST 5/6/11
5 seconds / Crime scene photograph: B’s body on floor covered by a sheet. Legs and one arm visible. Lower part of face briefly visible before camera zooms in (camera zooms in slightly on photograph while it is on-screen). Yellowish stain visible on sheet. / REPORTER: The [A] case had the fascination of a Hollywood whodunit. 38-year-old [A], the handsome divorced financier; his glamorous lawyer fiancée [B]; and a plot of murderous greed. [Music]
10 seconds / 2 black-and-white autopsy photographs:
1) B’s shins seen from left of body; camera zooms in on image slightly.
2) One shin in close-up. / REPORTER: It is the evidence Dr [D] didn’t tell the jury that is in dispute. The bruises he said were grip marks, here and here [points to left shin on actress playing B in re-enactment of bath scene]. They were barely visible in photographs, particularly the thumb print right here [points to inner left shin]. Standard practice is to take a section of that bruise and analyse it under a microscope. Dr [D] did that; it came back negative. No bruise. [Music] But Dr [D] never told the jury those results.
PROFESSOR C: Bruising’s not been established. The one tissue slide which could have presented clear evidence of bruising actually showed there wasn’t any evidence of bruising. And that wasn’t disclosed at the time of the trial.
12 seconds / 2 more black-and-white autopsy photographs:
1) B’s shins and feet, seen from right of body.
2) B’s shins seen from right, with area on inner left shin circled in red. / REPORTER: Bruises, presented to the jury as evidence of a struggle, could actually have been older injuries. Another detail Dr [D] neglected to mention.
4 seconds / Crime scene photograph again, this time without the zoom-in. / REPORTER: [A’s daughter] and her Dad’s defence team have tried three times to have [Dr D]’s vital evidence re-examined.
‘60 MINUTES MAILBAG’ BROADCAST 12/6/11
3 seconds / Black-and-white autopsy photograph: B’s shins seen from left. / PRESENTER: A key piece of evidence against [A] was a bruise on the woman’s body.
3 seconds / Crime scene photograph (no zoom) / PRESENTER: At [A]’s trial, forensic scientist Dr [D] said it was caused by someone gripping the woman and drowning her.
Complainant’s submissions
The complaint to the licensee relevantly included:
The story contained both crime scene photographs of the dead body of my sister lying on the ground at the murder scene partially covered by a stained sheet as well as photographs taken at the autopsy depicting her legs. Until the 5th June these crime scene photos had never been publicly broadcast in the last 17 years since her murder.
Whilst the autopsy photographs had been broadcast before by [another station] against strong objection from our family, the crime scene images of my sister’s body had understandably not been seen by any of [B]’s relatives who were shocked and upset to see these images broadcast on national television.
As you are aware I contacted you by both phone and email on Monday the 6th June to complain about the content of the program.[4] You were also contacted by my solicitor regarding this issue. My main concern was the publication of the crime scene photograph I referred to earlier and I expressed to you how shocked our family was at the use of such an image …
Unfortunately, that was not to deter 60 Minutes when the crime scene photographs were again broadcast in the ‘Mailbag’ section of 60 Minutes a week later. What is also disconcerting is … that 60 Minutes would again broadcast that image after contact from both myself and my solicitor expressing the distress of the family …