Investigation Report 2348
File Nos. / ACMA2010/206Broadcaster / Channel Seven Sydney Ltd
Station / ATN
Type of service / Commercial television broadcasting service
Names and dates of programs / Channel Seven News 13 December 2009
Sunrise 14 December 2009
Relevant code provisions / Clauses 4.3.1, 1.5.2 and 1.6 of the Commercial Television Industry Code of Practice 2004
Date finalised / 27 July 2010
Decision / Channel Seven News 13 December 2009:
1 breach of clause 4.3.1 (factual accuracy)
1 breach of clause 1.6 (remedy failure to comply)
Sunrise 14 December 2009:
1 breach of clause 4.3.1 (factual accuracy)
The complaint
The complaint is about an item concerning an assault broadcast by Channel Seven Sydney Pty Ltd, the licensee of ATN, on Channel Seven News on 13 December 2009 and the program Sunrise broadcast on 14December 2009.[1] The complainants allege that statements made in the programs were inaccurate.
The complaint has been investigated against clause 4.3.1 of the Commercial Television Industry Code of Practice 2004 (the code). Clauses 1.5.2 and 1.6 of the code are also relevant to the investigation.
Matters not pursued
The complainants also complained that the licensee had refused to provide them with a copy of the broadcasts; that the content of the broadcasts was damaging and prejudicial to a possible eventual appeal against a conviction by a person who will be referred to in this report asX; and that the broadcasts may have compromised X’s safety and that of his family. These are matters not covered by the code and accordingly they have not been pursued in this investigation.[2]
The complainants have also complained to the ACMA about other matters in the program and the program promotions which they consider inaccurate, but which they did not include in their initial complaint to the licensee. While these matters are covered by the code, inrelation to code matters the process requires that these matters be first raised with the licensee concerned. Accordingly, this investigation does not examine those matters of complaint which were not first made to the licensee. If the complainants make a complaint to the licensee concerning these matters, the ACMA can investigate them under section 149 of the Broadcasting Services Act 1992 if section 148 is satisfied. That is, if the complainants do not receive a response within 60 days after making a complaint, or receive a response but consider that response to be inadequate.[3]
Background
On 17 June 2005, a woman (who will be referred to in this report as A) was assaulted in her home by a young man who, she said, was dressed in the uniform of a local high school.[4]
On 4 July 2005, A took part in an identification procedure and viewed photographs of students from that school. She identified either two, or four, boys as possible perpetrators of the assault.[5]
On 19 July 2005, A’s daughter, Tania Renee Burgess, was attacked and killed in a car park while walking home from school. According to bystanders who came to her assistance, Taniaspoke X’s name as she lay dying from multiple stab wounds. Xwas arrested the same day.[6]
Some time later, A saw X in court. She gasped and said ‘That was him that attacked me’.[7]
On 14 September 2005, A attended her local police station and made a statement in which she identified X as the person who had attacked her on 17 June and asserted that the boys she had identified on 4 July 2005 were not responsible.[8]
X’s trial for the murder of Tania Burgess took place in March 2008. He pled not guilty. He was convicted of murder on 27 March 2008. During the trial, his Defence Counsel put forward that Tania had believed that X was responsible for the attack on her mother, and that this accounted for her naming of him as she lay dying. (The Defence Counsel similarly suggested that there was dispute over what Tania Burgess had said as she lay dying and which questions she was answering.)[9]
Neither X, nor anybody else, has been charged over the assault on A on 17 June 2005.
Assessment
This investigation is based on submissions from the complainant and the licensee[10] and copies of broadcasts provided to the ACMA by the licensee.
Other sources used have been identified where relevant.
Channel Seven News, 13 December 2009
The program and the item
Channel Seven News is a news program and is therefore subject to the factual accuracy requirements at clause 4.3.1 of the code.
Following is a transcript of the news item which is the subject of the complaint:
PRESENTER
The mother of a [geographical place name] girl stabbed 48 times wants an inquiry into why her teenage killer wasn’t arrested before the murder. The teenager had attacked Tania Burgess’s mother weeks earlier and she says police didn’t do enough to investigate why.
REPORTER (voice-over – vision: Tania Burgess’s parents at home; then murder scene)
Every day [Tania Burgess’s parents] live with the image inside their heads of their daughter Tania’s blood. Her dying breaths. She’d been stabbed 48 times just metres from their [geographical place name] home.
TANIA BURGESS’S FATHER
It was a horrifying thing to see. To see your own child on the ground.
REPORTER (voice-over – vision: police car)
When [A] saw the killer in court she gasped.
A
That was him that attacked me.
REPORTER (voice-over – vision: Tania Burgess as young girl on slippery-slide)
It happened four weeks before Tania was murdered, when [A] found the 16-year-old wandering around their house.
A
He kept staring and then he said, ‘I’m looking for somebody’.
REPORTER (voice-over – vision: A demonstrating how attack happened)
Then without warning and for no apparent reason, he attacked, brutally.
REPORTER (to A)
Did he say anything?
A
No, he said nothing; he just kept bashing me and bashing me.
REPORTER (voice-over – vision: people attending court, then photo of Tania Burgess)
[A] identified the boy as one of four possible suspects when police showed her school photos two weeks later. Time wasted, she says, on an incident so much more than a run-of-the-mill assault case.
REPORTER (to camera, outside police station)
The teenager was brazen enough to be identifiable in school uniform. He was in somebody’s house in the middle of the day. He was ready to attack a woman he had never even met. He had no apparent motive. He stole nothing. Forensic psychologists have told Seven News alarm bells should have been ringing. Police say they are desperately sorry for the family but they had no way of knowing the boy would turn out to be a killer.
POLICE OFFICER
We can always do things better in hindsight. There’s always areas that could be touched on that possibly weren’t.
REPORTER (voice-over – vision: Tania Burgess’s parents at home)
[Tania Burgess’s parents] want an inquiry into how the police prioritise their cases.
A
I think there’s a good chance, though, that she would be alive today.
REPORTER (voice-over – vision: Tania Burgess’s parents at home, then photos of Tania Burgess)
And the family wants an apology, something lawyers acting for the NSW police would never allow.
The item was two minutes and five seconds in duration.
Issues for investigation
From the complaint to the licensee, the following matters have been identified in which the complainants have expressed concerns about inaccuracy in this broadcast:
a) statements to the effect that X had attacked A; and
b) a statement that A had identified X as a suspect two weeks after that assault.
The relevant clause of the code for accuracy concerns is clause 4.3.1:
News and Current Affairs Programs
4.3 In broadcasting news and current affairs programs, licensees:
4.3.1 must present factual material accurately and represent viewpoints fairly, having regard to the circumstances at the time of preparing and broadcasting the program.
Clause 4.3.1 of the code therefore obliges the accurate presentation of factual material and the fair representation of viewpoints.
In relation to the latter element, it is noted that viewpoints were expressed in the item by Tania Burgess’s parents and a police officer. TheACMA has not been provided with any information to suggest that these viewpoints were not fairly represented in the broadcast. Accordingly, an examination of the program’s compliance with clause 4.3.1 insofar as it relates to the obligation to represent viewpoints fairly has not been pursued further.
Issue 1: Factual accuracy of statements to the effect that X had attackedA
Relevant code clause
News and Current Affairs Programs
4.3 In broadcasting news and current affairs programs, licensees:
4.3.1 must present factual material accurately and represent viewpoints fairly, having regard to the circumstances at the time of preparing and broadcasting the program.
Considerations which the ACMA generally applies in determining whether material complained of was subject to, and/or compliant with, the obligation to present factual material accurately are at Appendix 1.
Relevant material[11]
The relevant material comprises the following statements:
PRESENTER
The teenager had attacked Tania Burgess’s mother weeks earlier.
REPORTER
It happened four weeks before Tania was murdered when [A] found the 16-year-old wandering around the house.
REPORTER
He attacked, brutally.
Complainants’ submission
The complainants relevantly submitted that X has never been charged with the assault on A, declared a suspect in relation to it or questioned about it.
Licensee’s submission
The licensee relevantly submitted:
Seven presented the factual material that was provided by those who were shown being interviewed in the report – [A] and the police – accurately. The statements referred to … relate to information which was provided to Seven at the time of preparing the report by both the police and [A], the mother of Tania Burgess who died after being stabbed 48 times by her killer.
As is shown in the report, [A] is commenting on her own experiences, as she was the person attacked in her own home, and she provided the information directly to Seven’s reporter [name]. [The reporter] is Seven’s specialist crime and Court reporter. He has many years of experience as a senior reporter and is highly regarded in his field.
In the report, [A] comments on the assault in her home in her own words. Referring to the individual convicted for her daughter’s death, she stated: ‘That was him that attacked me’. In regard to the invasion of her home she stated: ‘He kept staring and he said “I’m looking for somebody” ’; and ‘He just kept bashing me and bashing me’. This is [A’s] own account of what happened to her. There is no doubt that [A] identified the individual convicted of killing her daughter as the person who earlier had entered her home and attacked her, albeit that [A] did not know who the person was at the time he entered her home which is why the report stated ‘when [A] saw the killer in court, she gasped’.
…
As Seven has been provided with information directly from the relevant witness in a criminal investigation we do not believe it is necessary to provide additional evidence, however it was reported, as follows, that the serious attack on [A] in her home was referred to and confirmed during the trial…[12]
These reports confirm [A]’s information provided to Seven concerning the attack by a schoolboy she suffered in her own home. [A]’s evidence that she did not know who attacked her relates to her state of mind at the time of the attack at [sic] the individual was unknown to her. As is clear from Seven’s report, subsequent to the death of her daughter she recognised the individual convicted of killing her daughter as the person who attacked her. We also note that, according to the reports, Defence Counsel submitted that ‘evidence was expected to emerge that Tania believed the accused was responsible’, although it was [A] who was the only witness to the attack not Tania.
The reporter has also confirmed that he put [A]’s account of her attack and her dealings with police to sources close to the police who verified what [A] had told the reporter. In accordance with the established conventions of confidentiality of sources [the reporter] is unable to disclose his sources. However we reiterate our response to the complainant that the police, whose public representative was included in the report, did not in any way suggest that the matters being reported were inaccurate. The police representative stated in the report ‘We can always do things better in hindsight. There’s always areas that could be touched on that possibly weren’t’. It is evident from the police’s participation and statements in the report that the key matters reported are not disputed by police.
Finding
The licensee breached clause 4.3.1 of the code by presenting factual material inaccurately in broadcasting statements that X had attacked A.
Reasons
Was the material ‘factual material’?
The first issue to be determined is whether the statements under examination constituted ‘factual material’. The licensee suggests, in part, that it considers the statements to be, rather, a viewpoint expressed by A (‘This is [A]’s own account of what happened to her’). The broadcast did include A’s viewpoint. However, the statements under examination were spoken by the presenter and the reporter respectively and did not contain any elements (such as ‘[A] says …’ or ‘According to A …’) to suggest that the speaker was relating A’s viewpoint or version of events. Further, the statements were presented in an unequivocal and unquestioning manner. Accordingly, an ordinary reasonable viewer would have understood the statements under consideration to be factual material.