Investigation Report 2498

File Nos. / ACMA2010/2029
Broadcaster / Prime Television (Victoria) Pty Ltd
Station / AMV
Type of service / Commercial television broadcasting service
Name and date of program / The Suspects: True Australian Killers21 July 2010
Relevant Code / Clause1.9.1 of the Commercial Television Industry Code of Practice 2010
Date Finalised / 21 December 2010
Decision / No breach of clause 1.9.1 (simulation of news or events)

The complaint

The ACMA received a complaint about the program The Suspects: True Australian Killersbroadcast by Prime Television Victoria Pty Ltd, the licensee of AMV, on 21 July 2010.

The complainant submitted that the program breached clause 1.9.1 of the Code in that it simulated events in such a way as to mislead and alarm viewers.

The program

The first series of The Suspects: True Australian Thrillerswas broadcast at 9.30 pm on Wednesdays from 21 July 2010.The media release[1] for the program describes it as follows:

Case files of some of this country’s most fascinating crimes are blown wide open, allowing you at home to see exactly how each investigation unfolded. Produced in-house, THE SUSPECTS: TRUE AUSTRALIAN THRILLERS will feature never before seen police interviews and surveillance tapes, dramatized re-enactments and news reports.

The segment complained of involved a 22 year old man (referred to here as X) who staged the kidnapping of his girlfriend (referred to here as Y) andeventually confessed to the crime. The complainant is X’s mother.

The program depicted the circumstances surrounding the kidnapping through:dramatic re-enactments, real audio and video police footage of interviews with X and Y, real photographs of X and Y, interviews with threepolicemen and a narration.

A summary of the re-enactments and a list of the actual police material are at Attachment A.

Assessment

This investigation is based on submissions from the complainant and the licensee and a copy of the broadcast provided to the ACMA by the licensee. Other sources used have been identified where relevant.

Issue 1: Simulation of events

Relevant code clause

The relevant clause of the Code is clause 1.9.1:

Proscribed Material

1.9A licensee may not broadcast a program … which is likely, in all the circumstances, to:

1.9.1simulate news or events in such a way as to mislead or alarm viewers.

In assessing compliance with clause 1.9.1 of the Code, the ACMA has considered what the ‘ordinary, reasonable viewer’ would have understood the program concerned to have conveyed. Courts have considered an ordinary, reasonable viewer to be:

A person of fair average intelligence, who is neither perverse, nor morbid or suspicious of mind, nor avid for scandal. An ordinary, reasonable viewer 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.[2]

Complainant’s submissions

The complainantsubmitted, in her letter to the licensee, that:

I wish to lodge a complaint about broadcasting this show, which infringed the 2010 Commercial Television Industry Code of Practice, clause 1.9.1, which is “simulate news or events in such a way as to mislead or alarm viewers”. You have done exactly that.

My son [X’s] life was placed in danger by your program simulating the events inaccurately in such a way as to mislead and alarm viewers which was evidence by the feedback we received.

The Deputy Commissioner of Corrections Victoria, while watching your program, was so alarmed that he immediately called the prison and directed the Officer in Charge to immediately remove my son from his unit and place him in Solitary Confinement to ensure his safety.

Even after moving him to a Maximum Security Prison, [X’s] life was threatened and he had to be placed in Solitary Confinement again as your program had kindled prisoner’s anger against my son. Adjectives used in the show regarding my son were: “sadistic, callous, sordid, demented, cruel”.

The misleading and inaccurate events as portrayed in your program “The Suspects” are as follows:

  1. The dramatisation showed the girl screaming. Wrong: According to the Police brief the girl said that she made no sound during the kidnapping. She never screamed.
  2. Sergeant [G] says in your show that the symbol on the letters is used by the satanic cult ‘Order of the Nine Angels’. Then a dramatisation of some satanic meeting follows.
  3. Why have a satanic meeting dramatised in connection which [sic] my son? This created an emotion against my son.
  4. Having created this emotion, it is then said that such a group does not exist in Australia.
  5. Sergeant [G’s] statement was very confusing and wrong. The symbol on the letters is NOT used by the ‘Order of the Nine Angels’. They have a different symbol than that on the letters. The symbol on the letters is known to stand for ‘Anarchy.
  6. The narrator of the show said that my son lied to the girl by saying that there was a deer carcass. Wrong. There was a deer SKIN on the side of the road, which both saw.
  7. According to the girl, the kidnapper wore a bone coloured zip up jacket. The show showed my son preparing for the kidnapping by just putting on a balaclava.
  8. In the show, the girl was gagged. It was said that she had duct tape all over her face. Wrong: That never happened. She had duct tape over her eyes only.
  9. The narrator said that the police was in the area before my son and the girl were brought back there. Wrong: Police did not know where the dumping site of the two was and had to be led there.
  10. The narrator said that the girl was tortured. Wrong: My Collins Concise dictionary says that torture is to “cause extreme physical pain to esp. to extract information”. I could not find any reference to torture in all the police transcripts. The girl never claimed that she was tortured.
  11. It was said that my son abducted the girl for sex. Wrong. There was no sexual charge at all, therefore he was NOT charged with ABDUCTION.
  12. It was said that my son was charged with ENDANGERING LIFE. Wrong. My son was not charged with that at all.

All the mentioned inaccuracies as well as the adjectives used in regards to my son such as before mentioned, “sadistic, callous, sordid, demented, cruel” guided the viewer into emotions of enragement against my son...

Licensee’s submissions

The licensee submitted, in its response to the complainant, that:

Clause 1.9.1 of the Code states that a licensee may not broadcast a program which is likely to simulate news or events in such a way as to mislead or alarm viewers.

The material that you have referred to in your correspondence does not have the appearance of news or events in accordance with clause 1.9.1, Viewers would understand from the context of the program and the distinctive style of key scenes that these scenes were re-enactments. Furthermore, all recreations contained the superimposed text, “Re-enactment” clearly identifying the nature of these scenes.

Detective [G] did provide police information about the events that had already occurred as a voiceover or “narration” during the program.

After reviewing the material we consider that this program did not at any time simulate news or events in such a way as to mislead or alarm viewers, and that the program remained within the requirements of the Code at all times...

Finding

The licenseedid not breach clause 1.9.1 of the Code.

Assessment

The Code prohibits commercial television licensees from broadcasting a program, which is likely in all the circumstances, to simulate events in such a way as to mislead or alarm viewers.

The Macquarie Dictionary (Fifth Edition)[3]relevantly defines the words ‘simulate’, ‘mislead’ and ‘alarm’ as follows:

Simulateverb 1. to make pretence.

2. to assume or have the appearance of.

Mislead verb1. to lead or guide wrongly; lead astray.

2. to lead into error of conduct, thought, or judgement

Alarm verb7. to surprise with apprehension of danger; disturb with sudden fear.

Use of the words ‘likely in all the circumstances’ imposes an objective test[4]and implies a real and not remote possibility; something which is probable.[5]

The complainant has submitted that various aspects of the dramatisation of events in the program of her son kidnapping Y were inaccurate, including the use of various adjectives to describe her son. It is important to note that clause 1.9.1 does not deal with inaccurate factual content. The primary purpose of the clause is to ensure that viewers are not misled or alarmed in such a way as to believe that a simulated event is an actual event.

In this case, the issue therefore to determine is whether there was a real possibility that an ordinary, reasonable viewer would have been misled or alarmed in such a way as to believe that the re-enactments of the kidnapping broadcast in the program were actual events.

Simulate events

It is not in dispute that the program contained staged dramatisations of the kidnapping.

Mislead or alarm viewers

As indicated above, the depiction of the circumstances surrounding the kidnapping included dramatic re-enactments, real audio and video police footage of interviews with X and Y and real photographs of X and Y.

The delegate considers that the staged dramatisations of the kidnapping were clearly distinguishable from the actualpolice footage. In this regard, it is noted that:

  • The ordinary, reasonable viewer would have been aware that the actors in the re-enactments were different people from the real footage and photographs of X and Y;
  • The dramatisations of the police interviews with X and Y included the word “Re-enactment” on screen;
  • Many of the dramatisations were shown side by side with the actual police footage, thus differentiating the simulations from the real events; and
  • The dramatisations included two versions of the kidnapping, pre and post X’s confession, thus reinforcing the notion of the simulated footage.

Although the delegate appreciates that the complainant was distressed by the program, the delegate finds that the segment was not ‘likely, in all the circumstances’ to have simulated events in such a way as to mislead or alarm viewers in terms of clause 1.9.1 for the reasons outlined above.

Attachment A

Re-enactmentof the kidnapping depicted in The Suspects – True Australian Killers– 21 July 2010

The re-enactment of the kidnapping included the following scenes:

  • X and Y setting off in the car to a picnic at a family farm;
  • X’s mother findinga kidnap note in her gate with an occult symbol on it;
  • police searching for X and Y and meeting with their parents;
  • X’s father showing the police where he found a similar note;
  • a satanic meeting in front of an open fire;
  • the local church praying for X and Y;
  • the police interviewing the pastor of the church;
  • X and Y driving to their picnic;
  • a depiction of the emblem of the satanic cult;
  • police searching for X and Y;
  • X and Y flagging down a car to pick them up on a country road; and
  • the police interviewing X and Y at the police station recounting their attack, kidnap and escape (the word RE-ENACTMENT is shown onscreen).

The re-enactment continued with X and Y’s explanation to the police of how they were kidnapped:

  • X and Y stopping their car on the road and X getting out to check a ‘deer carcass’;
  • X being hit over the head;
  • a kidnapper wearing a balaclava pulling Y from the car screaming and tying her hands and duct taping her mouth and eyes;
  • Y being placed in the back seat of a car with a blanket covering her and the car driving away;
  • the car stopping and the kidnapper taking Y out of the car. The kidnapper digging a hole;
  • the kidnapper cutting off Y’s clothes and Y lying on the ground naked and bound praying;
  • the kidnapper running away;
  • X lying next to Y naked. X cutting the rope tied around Y and they run away wandering in the bush;
  • X leaving Y and returning with their clothes. They get dressed, walk out of the bush and flag down a car;
  • X and Y returning to the kidnapping site with the police to explain what happened (the word RE-ENACTMENT is shown onscreen);
  • X being interviewed by the police at the kidnapping site (the word RE-ENACTMENT is shown onscreen)

After X had confessed to the kidnapping, the following re-enactments were broadcast:

  • X leaving a note at his parent’s house;
  • X and Y stopping their car on the road and X getting out to check a ‘deer carcass’;
  • X putting a balaclava over his head, pulling Y from the car and tying her hands and duct taping her mouth and eyes;
  • X placing Y in the back seat of a car with a blanket covering her;
  • X digging a hole;
  • X cutting off Y’s clothes and Y lying on the ground naked and bound praying;
  • X taking off his own clothes and binding his hands behind his back and lying next to Y; and
  • X and Y walking through the bush and then sitting on the ground talking.

Actual police material included in The Suspects – True Australian Killers– 21 July 2010

  • photographs of X and Y sunburnt and injured from the kidnapping;
  • audio footage of X’s interview with the police;
  • a voiceover of Y’s interview transcript;
  • video footage of X at the kidnapping scene with the police;
  • photographs of materials used by X in the kidnapping;
  • video footage of X admitting to the kidnapping of Y;
  • video footage of X showing police where he hid materials used in the kidnapping;
  • a photograph of Y’s face;
  • audio footage of X being interviewed by police; and
  • video footage of X being arrested.

ACMA Investigation Report 2498 – The Suspects – AMV –21/7/101

[1]

[2]Amalgamated Television Services Pty Limited v Marsden (1998) 43 NSWLR 158 at pp.164-167

[3] Online edition at

[4]Creek v Cairns Post Pty Ltd (2001)112 FCR 352 at 12.

[5]See discussion in Re Vulcan Australia Pty Ltd and Comptroller-General of Customs (1994) 34 ALD 773 at 778-779.