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Investigation Report No. 3232


File no.

ACMA2014/582


Broadcaster

Australian Broadcasting Corporation


Station

ABN Sydney (ABC1)


Type of service

National broadcasting service (television)


Name of program

Four Corners


Date of broadcast

21 October 2013


Relevant code provisions

Standards 2.1, 2.2 and 4.1 of the ABC Code of Practice 2011 (revised 2013)


Date finalised

23 January 2015


Decision

No breach of standards 2.1 and 2.2 [accuracy]

No breach of standard 4.1 [impartiality]



The complaint

In July 2014, the Australian Communications and Media Authority (the ACMA) commenced an investigation into a complaint about a Four Corners segment, While they were sleeping, broadcast on 21 October 2013 by the Australian Broadcasting Corporation (the ABC) on ABC1.

The complaint was made by the Public Affairs branch of the New South Wales Police Force, and submitted that the segment breached the following standards of the ABC Code of Practice 2011 (revised 2013) (the Code):


  • 2.1 and 2.2 [factual accuracy]

  • 4.1 [impartiality].

Matters not pursued

The complaint to the ACMA also claimed a breach of standard 3.1 of the Code dealing with corrections and clarifications. As the complainant did not raise this issue in its initial complaint to the ABC as required under section 150 of the Broadcasting Services Act 1992, the ACMA has not pursued this aspect of the complaint in this investigation.

The complainant also raised issues in relation to the text that appeared in the introduction to the transcript of the segment that appeared on the Four Corners website.1 This text did not form part of the broadcast. As the ACMA does not have jurisdiction to consider on-line material within a complaint about broadcast content, this aspect of the complaint has not been investigated.

The program

Four Corners is a current affairs program broadcast on Mondays at 8.30 pm and is described on the ABC’s website as follows:

Four Corners is Australia's premier television current affairs program.

It has been part of the national story since August 1961, exposing scandals, triggering inquiries, firing debate, confronting taboos and interpreting fads, trends and sub-cultures.2

The segment was 45 minutes long. It explored the deaths of two teenagers, ‘EW’ and ‘WD’, who were run over by a utility van driven by ‘RC’ at a party in rural New South Wales. The segment reconstructed the incident and considered the related Police investigation. It featured interviews with parents and friends of the two deceased, friends of the driver of the vehicle, the paramedic who attended the scene and a number of lawyers, including ‘DW’.

A transcript of the segment is at Attachment A.



Assessment

The ACMA’s findings are based on submissions by the complainant and the ABC, and a copy of the broadcast provided to the ACMA.

The ACMA has also taken into account, where relevant, the findings of the State Coroner’s Court of New South Wales in the inquest into the deaths of EW and WD (the Coroner’s Report). The decision of Deputy State Coroner Freund of 9 October 2013 is available at:

http://www.coroners.justice.nsw.gov.au/coroners/findings.html#2013findings

Other relevant sources have been identified where used.

In assessing content against the Code, the ACMA considers the meaning conveyed by the relevant material. This is assessed according to the understanding of an ‘ordinary reasonable’ viewer.

Australian 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. 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 affairs3.

The ACMA considers the natural, ordinary meaning of the language, context, tenor, tone, visual images and any inferences that may be drawn. In the case of factual material which is presented, the ACMA will also consider relevant omissions (if any).

Once the ACMA has applied this test to ascertain the meaning of the material that was broadcast, it then assesses compliance with the Code.



Issue 1: Accuracy

Relevant Code standards

2. Accuracy

2.1 Make reasonable efforts to ensure that material facts are accurate and presented in context.

2.2 Do not present factual content in a way that will materially mislead the audience. In some cases, this may require appropriate labels or other explanatory information.

The Code requires that these standards are interpreted and applied in accordance with the relevant principles, which in this case include the following:

The ABC requires that reasonable efforts must be made to ensure accuracy in all fact-based content. The ABC gauges those efforts by reference to:

• the type, subject and nature of the content;

• the likely audience expectations of the content;

• the likely impact of reliance by the audience on the accuracy of the content; and

• the circumstances in which the content was made and presented.

The ABC accuracy standard applies to assertions of fact, not to expressions of opinion. An opinion, being a value judgement or conclusion, cannot be found to be accurate or inaccurate in the way facts can. The accuracy standard requires that opinions be conveyed accurately, in the sense that quotes should be accurate and any editing should not distort the meaning of the opinion expressed.

The efforts reasonably required to ensure accuracy will depend on the circumstances. Sources with relevant expertise may be relied on more heavily than those without. Eyewitness testimony usually carries more weight than second-hand accounts. The passage of time or the inaccessibility of locations or sources can affect the standard of verification reasonably required.

The ABC should make reasonable efforts, appropriate in the context, to signal to audiences gradations in accuracy, for example by querying interviewees, qualifying bald assertions, supplementing the partly right and correcting the plainly wrong.



Complainant’s submissions

The complaint to the ABC was that the segment was not fair and impartial and that the story was sensational, misleading and ignored ‘the vast majority of evidence and findings of the seven day coronial inquest’. It also claimed that the only suggestion of Police impropriety, or the investigation being ‘conflicted’, has come from Four Corners and that ‘the most rigorous and public examination of the facts and evidence clearly found that it was an open, transparent and thorough examination’.

The complainant attached an annotated version of the transcript highlighting its accuracy concerns. These are extracted with surrounding contextual material below.

Broadcaster’s submissions

Extracts from the ABC’s response to the complainant and submissions to the ACMA are at Attachment B.



Findings

The ABC did not breach standards 2.1 and 2.2 of the Code.



Reasons

In applying standard 2.1 of the Code, the ACMA usually adopts the following approach:



  • Was the particular material (the subject of the complaint) factual in character?

  • Did it convey a ‘material’ fact or facts in the context of the relevant broadcast?

  • If so, were those facts accurate?

  • If a material fact was not accurate (or its accuracy cannot be determined), did the ABC make reasonable efforts to ensure that the ‘material’ fact was accurate and presented in context?

In applying standard 2.2 of the Code, the ACMA usually adopts the following approach:

  • Was the particular material (the subject of the complaint) factual in character?

  • Was that factual content presented in a way that would materially (i.e. in a significant respect) mislead the audience?

The considerations the ACMA uses in assessing whether or not broadcast material is factual in character are set out at Attachment C.

Based on the complainant’s annotations of the transcript of material that was broadcast, the ACMA has considered the statements below against standards 2.1 and 2.2 of the Code. As noted above, material on the ABC website has not been investigated by the ACMA.



  1. Statements concerning justice being done

The relevant content and complaint (in italics) is:

Presenter:…The parents of [EW] and [WD] believe justice has not been well served. But senior Police, the Coroner and the Director of Public Prosecutions all disagree.

No comment or opinion has ever been publically made by the Coroner, DPP or Police that justice has been well served.

The statement concerning the parents’ beliefs would not have been understood by the ordinary reasonable viewer as factual material but as viewpoint or opinion.

In the context of the segment in its entirety, the statement about the views of senior Police, the Coroner and the Director of Public Prosecutions (DPP) would have been understood as references to the Police and the Coroner’s findings that the Police investigation had not been compromised, and that the DPP had declined to prosecute RC, rather than to comments by them on their findings.

To the extent that the statements concerning the Police, the Coroner and the DPP are factual, they are verified by the Coroner’s Report, which noted that ‘the Director of Public Prosecutions, despite additional submissions from the families of both [EW] and [WD], declined to prosecute’ (page 4), and which stated that the Police’s report on the investigation ‘was not critical of the investigation’, save for some exceptions discussed below.

The relevant material facts were therefore accurate.

Accordingly, it is concluded that the ABC made reasonable efforts to ensure that the material facts were accurate and presented in context.



  1. Statements concerning whether alcohol was a factor in the accident

The relevant content and complaint (in italics) is:

Reporter: The [W family] don't notice the local Police arrive and breathalyse the driver. At Orange Hospital, [WD]’s mother [name] is waiting for her son.

(Semantics however ‘breath test’ is the correct terminology).

[…]


EW’s father: All we were hearing was that a swag had been run over and that it was a terrible accident. We couldn't understand why [WD] and [EW] would put a swag behind, or next to, a ute as we were hearing.

WD’s mother: I was constantly told, in ICU, no alcohol involved; it's all just a terrible accident. There was no irresponsible behaviour, there was no irresponsible driving; no alcohol; we're not going to lie to you. One detective kept saying to me over and over again, we're not going to lie to you.

The phrase: ‘not going to lie to you’ is a regular expression that particular officer uses in normal conversation.

[…]


News reporter 1: Police are investigating the incident at a party on [road] near Molong yesterday, they've ruled out alcohol as a factor. The 19 year olds were with a group of 30 others. Police say it's a tragic accident.

News reporter 2: The 17 year old driver of the utility is cooperating with Police.

Reporter: The following day, the local Police in Orange went public. Explaining what happened, one statement stood out.

Police spokesman: Police are making a number of investigations, we don't believe alcohol is a factor in this accident.

Due to the negative breath test it is a reasonable inference that [the Policeman in question] drew when he conducted a stand up with the media that he didn’t believe alcohol to be a factor. Note that he used the word ‘believe’, and that at the time he had no reason to doubt the accuracy of the alcolizer.

Reporter: When Inspector [name] told the nation that this was nothing more than a tragic accident at a party of about 30 campers, and that alcohol wasn't a factor, the community trusted that this was the case. But in reality, the truth was very different.

Note the above. The reporter has changed the officer’s statement that he believed alcohol not to be a factor to that it was not a factor.

[…]


Reporter: The Police didn't ask [RC] if he'd been drinking at the party. And that morning [RC] blew zero. According to the breathalyser he didn't have a drop of alcohol in his blood. But the reading was false. We now know the Police were using a broken breathalyser - this document shows it wasn't detecting any alcohol at all. It was sent off for repair one week after the incident.

WD’s mother: The alcolizer, the machine that was used was faulty and had to be sent away for repair and recalibration, that it wasn't just a little bit out.

In the context of the segment in its entirety, the ordinary reasonable viewer would have understood that:



  • the Police breath tested the driver at the scene resulting in a nil reading for alcohol levels

  • the reason for this result was that the alcolizer was faulty

  • the Police formed the view that alcohol was not involved in the incident (at least initially)

  • the parents and public were advised by the Police that alcohol was not a factor.

This was factual material; it was specific, unequivocal and capable of independent verification.

The facts are verified by the Coroner’s Report (pages 3-4 and 7).

The issues mentioned in the complaint, namely whether or not the correct terminology for a breath test was used, the assertion that the officer’s statement to WD’s mother that he ‘would not lie to her’ is a term he uses in conversation, and that the Police stated they ‘believed’ alcohol not to be a factor, rather than it was not a factor, were peripheral or incidental to the above factual assertions. To the extent that these were factual assertions, they were not material facts and would not have materially misled the audience.

The main assertions were that the Police advised the parents and the public that alcohol was not a factor. This point is not in dispute, nor is the fact that the Police formed their initial view because the alcolizer was faulty and it gave a false negative reading.

The relevant material facts were therefore accurate.

Accordingly, it is concluded that the ABC made reasonable efforts to ensure that the material facts were accurate and presented in context.



  1. The views of JB

The relevant content and complaint (in italics) is:

JB: Basically all I was told was he wanted to leave early because he didn't want to get caught by the Police, and it was that, that either because he was A, drink driving or B, underage. He didn't want to get caught driving on his L’s, so he wanted to get home before the Police were patrolling the roads.

It should be noted that [JB] was not present at the party and that from an evidentiary point of view this is all hearsay. This information is what he has been told with no source identified.

The hearsay rule does not apply in broadcasting.

This comment would have been interpreted by the ordinary, reasonable viewer as JB’s subjective third person account. The fact that JB opened his comments with the words ‘basically all I was told was…’ makes this point clear.

There is no allegation that JB was misquoted or his views distorted.

The Coroner’s Report states that it was uncontroversial that, at the time of the incident, RC was the holder of a learner’s licence, was unaccompanied when driving the vehicle and he had been drinking on the night of the party to some unknown extent (page 3).

To the extent that JB’s account is separately asserted or reinforced by the reporter so that it could be considered a separate factual assertion, the relevant material facts were accurate.

Accordingly, it is concluded that the ABC made reasonable efforts to ensure that the material facts were accurate and presented in context.


  1. The colour of the tyre marks on the swag

The relevant content and complaint (in italics) is:

Reporter: Police photos show the swag was covered in thick, black tyre marks.

The photograph shown on the program shows darker marks than the photo contained in the Police brief. One must question whether the photograph has been altered.

The photographs conveyed a fact concerning the tyre marks. It was specific, unequivocal and capable of independent verification. The factual content was a material fact in the context of the broadcast.

There is nothing before the ACMA to determine the accuracy of the content, so it has assessed whether the ABC made reasonable efforts to ensure that the material fact was accurate and presented in context.

The ABC has submitted that:



Four Corners has confirmed this was an official Police photograph which was not manipulated or altered in any way. The executive producer has explained that all Four Corners programs are graded, or colour corrected, which lifts the contrast of every shot in the broadcast.

The ACMA accepts the photo was sourced from the Police, and that despite the alleged difference in the appearance of the photo when broadcast, the photo was not altered for false effect. Therefore, the ABC made reasonable efforts to ensure that material facts were accurate and presented in context.



  1. Whether or not the scene was a road related area

The relevant content and complaint (in italics) is:

DW QC: I considered whether or not a question of driving in a manner dangerous to the public, provided an appropriate investigation was conducted, or failure to assist. But it appeared to me that none of these matters were the subject of the level of inquiry that I would expect from seasoned Police officers where you have two young people dead. It can't get much worse than that, and they are killed by a motor car driven by somebody who shouldn't be driving.

For the offence of driving in a manner dangerous to the public the offence must occur on a road or road related area. The offence of ‘failing to assist’ also requires that the incident occur on a ‘road or road related area’. The issue of ‘road or road related area’ was heavily considered in the review of the investigation. Case law was cited and the relevant case law attached to the statement of [the Superintendent]. Police expressed their opinion on the issue and commented that others may disagree with that view, however ultimately it was a matter for the court.

Reporter: At 6am, the first Police officers from Orange arrived on the scene. They knew there was a possible double fatality. Problem was, it had happened on private property. Under NSW traffic legislation, driving offences can only be pursued by Police if they occur on a road related area or a public road.

DW QC: It does seem somewhat paradoxical that the presence of a boundary fence can make such a difference in outcome. It's difficult to see why it should be less offensive to cause death on a private property than it is on the other side of the fence on the road.

Reporter: In NSW, it's up to Police on the scene to decide whether or not it's a road related area.

This is true in the first instance but ultimately it is a question of fact to be determined on each occasion by the court.

W family lawyer: The objective factors are it was…a farm but it, the area that was being used at the time was being used as a carpark. And the test is whether the carpark was open to or being used by the public.

The issue was highlighted in the statement of [the Superintendent] and [GG]. A copy of the case law R v Abrahams was cited, in particular the salient sections and a copy of the whole judgement was annexed to the statement of [the Superintendent].

Reporter: The Police counted up to 60 cars and the gates were open. They quickly decided the location resembled a public car park, and treated it as a road related area.

For Police to exercise breath test powers they require reasonable cause to believe that the person was the driver of a motor vehicle upon a road.

This meant they could pursue driving offences and legally breath-test the driver. By now, nearly two hours have passed since [RC] ran over [WD] and [EW].

[…]

Reporter: He was well over the legal limit for a licenced driver, let alone the limit of zero for an L-plater.

W family lawyer: As soon as that occurs, it's a standard drink driving charge. The charges could have been as simple as neg drive [negligent driving]. It could have been drink driving.

To prefer the charges as outlined by [the W family lawyer] the incident needs to occur on a road or road related area. Again this was canvassed during final submissions.

Reporter: And none of these were pursued?

W family lawyer: No, no, not even the simplest of charges.

They couldn’t be due to the issue of road and road related area. The coroner commented that the view of the Police that it was a road related area ‘waned’.

Paragraphs 88 and 104 of [the Superintendent]’s statement make reference to the case law R v Abrahams [1984] 1 NSWLR 491. A full copy of the judgement was annexed to the statement and supplied to the court. [The Superintendent] outlined at paragraph 104:

In respect to the issue of the incident occurring on a ‘road related area’ the investigator came to the conclusion that it was not a road related area. I agree with that determination in this circumstance. Although others may differ in that view. I do not believe it was open to the public without discrimination nor that the invitation to the selected class of the public was significant enough to make it open to the public however the nature of the invitation could have made it so’.



This is reflective of the rationale of the decision in Abrahams case.

Note that the promotion on the 4 Corners website outlines ‘it was meant to be a day of fun. An Australia Day paddock party, a reunion for a group of 19-year-old school friends before they went their separate ways, to university and work’.



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