Investigation Report N
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- Questions asked of the driver at the scene The relevant content and complaint (in italics) is: Reporter
- Actor (Police officer)
- Reporter
- Statements concerning the driver being the son of a Police officer The relevant content and complaint (in italics) is: Presenter
- EW’s father
D family lawyer: At the inquest, [GG] said that he deliberately made a decision not to lay them. This is surprising but, umm, it's what he said he did. This comment takes the evidence out of context. This evidence related only to the possible driving offences of ‘learner unaccompanied’ that occurred well prior to the incident. Again this was canvassed in closing comment by legal counsel at the inquest. The comment does not relate to any offence in respect to the deaths… Reporter: Inexplicably and without the consultation that Police require, [GG] made another surprising decision. He overturned his colleagues’ initial judgement that the incident occurred on a road related area. According to [GG], it had now happened on a private property. At paragraph 93 of [GG]’s statement the officer outlines the two schools of thought in respect to whether the area was a road related area. He does not reach a conclusion in his statement. He did not overturn any decision in respect to this issue although he did have an opinion which was given in evidence. Paragraph 93 of [GG]’s statement reads: Section 24A of the division reads ‘in this division, “accident” means an accident on a road or road related area involving a motor vehicle or other vehicle or a horse’. There is two opinions of whether this incident occurred on a road related area. The first opinion is that the location of this incident does not appear to be within the scope of a ‘road’ or ‘road related area’ and consequently that Division 4A of the Road Transport (Safety and Traffic Management) Act 1999 may have been incorrectly utilised following this incident. The second opinion is that the occupants of ‘Ridgeview’ had opened up the property to the general public and that the area in question was being used as a car park. This line of thought infers the incident location was temporarily a road related area and hence Division 4A is applicable. […]
Presenter: …The Coroner also noted that the distinction in NSW between road related offences and private property offences should be reviewed. No such distinction exists in Queensland, Victoria or South Australia. The ordinary reasonable viewer would have understood the factual assertions to be:
The facts concerning the initial decision that the scene was a road related area and that this decision was later reversed are not disputed by the complainant and are verified in the Coroner’s Report (pages 9-10). The Coroner noted that ‘without the power to test somebody driving a motor vehicle on a private property for the presence of alcohol, it follows that charges are unlikely to arise’ (page 12). In respect of the reporter’s comment that the decision to ‘overturn’ the initial determination that the scene was a road related area was made ‘inexplicably and without the consultation the Police require’, the complainant noted that ‘there are two schools of thought’ and the decision was not ‘overturned’. The ABC has submitted that:
It is an established fact that, initially, police saw the incident as occurring on a road related area. This view was subsequently changed or overturned by [GG]. Four Corners has explained: "NSW Police also failed to respond to our specific questions sent prior to broadcast: 'When did [GG] overturn Inspector [name’s] ruling and decide it wasn't a road related area? On what material was he relying on? Who did he consult before making this decision? Please provide specific date of decision and details of what consultation (as was required) and advice he sought and received'." We understand there is still no answer to this question, including in Detective [GG’s] statement. Furthermore, the program notes that Superintendent [name], in his review, clearly states that Detective [GG] did come to a conclusion on the issue of a road related area: '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.' In the context of the comments made by the W family lawyer on whether charges could be laid (see point 10 below) the ABC also submitted that: We believe it is clear that [the W family lawyer] is responding to the established evidence that [RC] was over the legal alcohol limit, as prescribed for a Learner driver. Critically, at the time [RC] was breath tested, police on the scene were operating on the basis of an initial ruling that it was a road related area. Therefore, the driving charges noted by [the W family lawyer] were open to police.
The ACMA has no material before it to determine whether the decision to reverse the initial assessment that the incident occurred on a road related area was, in fact, inexplicable or conducted without consultation. Accordingly, the ACMA must consider whether the ABC made reasonable efforts to ensure that material facts were accurate and presented in context. It is clear from the complainant and the ABC’s submissions that the decision as to whether the scene was a road related area is a matter of judgement, there are two ‘schools of thought’ on the issue, and the assessment will depend on the facts and circumstances of an incident. From the complainant’s submissions it is also apparent that in this case, the initial decision was open but the decision to change the initial determination was made on review and supported by case law. However, the ABC’s questions to the Police concerning the basis for that change, and whether consultation as apparently required under the Police Handbook Guidelines was undertaken, were not answered and the reasoning was not explained for the purposes of the broadcast. In all these circumstances, the ACMA considers that:
The relevant content and complaint (in italics) is: Reporter: …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]. Actor (Police officer): Have you had a drink in the last 15 minutes? Reporter: Did Police ask, at that moment, did they ask the driver [RC]: ‘Have you been drinking?’ D family lawyer: I think the question that they asked him from memory is, ‘have you had a drink in the last 15 minutes’, rather than ‘have you been drinking’. The Police ask this question to determine the possibility of mouth alcohol. Any alcohol consumed within 15 minutes of a breath test will give a false high reading. It is an important and necessary question. Any question in relation to a ‘drinking history’ requires a caution to be administered and if a juvenile in the presence of an adult as previously outlined. Reporter: We're talking about a potential double fatality here at the moment─ D family lawyer: Correct. Reporter: ─Police arrive. D family lawyer: Correct. Reporter: And the only question they ask of the driver─ D family lawyer: ─is: ‘Have you been drinking in the last 15 minutes’. Reporter: 15 minutes. D family lawyer: And umm that, that's correct. This is not correct. Paragraph 10 of [Policeman’s] statement outlines the conversation. They ask for his details, if his parents were present, if there was an adult present who could act as a support person – this is answered in the negative, he admits to being the driver, that he does not have a licence and has not consumed alcohol in the last 15 minutes. He is asked ‘What happened’ he provided the version that ‘I just ran over them. I didn’t see them. Their swags were the same colour as the grass’. The Police identify he is very upset. [The Policeman] speaks to others and a short time later informs [RC] that he is under arrest for the purpose of a blood and urine test. Any further conversation had with this person would have been inadmissible due to no caution and the lack of presence of an adult of [RC’s] choosing. The ABC’s submission is that the D family’s lawyer is responding to specific questioning from the reporter regarding what Police on the scene asked the driver about his alcohol consumption. The ABC submitted that this was clear from the context in which the questions and answers were presented in the broadcast. Further, at the scene the Police were acting on the initial determination that the scene was a road related area, and proceeded to breath test the driver. Based on briefs of evidence, statements and transcripts submitted during the Coronial Inquest, the ABC submitted the driver was not asked whether he had been drinking at the party. The content was preceded by the reconstruction of the scene of the accident, the parents’ accounts of the advice that alcohol had not been a factor, and interviews with other party-goers and WD’s mother, who described the scene of the Australia Day party as having been attended by 100 guests aged between 15 and 20 years old who were expected to camp on the property for the night because they would be over legal limits of alcohol for drinking and driving. This established a context in which, despite advice to WD’s mother, it was likely that RC had been drinking in the hours before the accident and that alcohol was likely to have been a factor in the accident. The facts that RC had been drinking on the night of the party to some unknown extent was accepted as an uncontroversial fact in the Coroner’s Report (page 3). The ACMA considers that the statement ‘the only question they ask the driver’ could have been interpreted as meaning that he was asked only that single question at the scene, rather than as meaning it was the only question asked about his alcohol consumption. However as it is preceded by statements of the reporter and family lawyer that he was not asked ‘have you been drinking’, it was more likely from the surrounding language and the previous scenes that the question would have been understood as being the only question asked about his consumption of alcohol from the time of his arrival at the party. In the context of the segment in its entirety (including the matters at point 5 above), the ordinary reasonable viewer would have understood the factual assertions to be:
This was factual material; it was specific, unequivocal and capable of independent verification. The ACMA acknowledges the complainant’s submission that as the driver was a juvenile he could not be interviewed in detail without the presence of a guardian or support person. However, that submission does not explain why RC was not asked further questions about his alcohol consumption in the presence of a guardian or support person. Regardless, the complainant’s submission does not dispute the key assertion that RC was not asked at the scene about his alcohol consumption, other than whether he had consumed alcohol in the previous 15 minutes. The ACMA also notes that the officers apparently asked RC some brief questions at the scene, in addition to the question about whether he had consumed alcohol in the previous 15 minutes. However, the ACMA considers that, in context, it was sufficiently clear that the reference to that being the ‘only’ question asked at the scene actually conveys that the question was the ‘only’ question asked about alcohol consumption at that time. That is an accurate factual assertion, and not disputed. The factual assertions concerning the questions asked at the scene about RC’s alcohol consumption were therefore factually accurate. Accordingly, it is concluded that the ABC made reasonable efforts to ensure that the material facts were accurate and presented in context.
The relevant content and complaint (in italics) is: Presenter: Welcome to Four Corners. Tonight’s story …about rite of passage in the bush; about a paddock party on Australia Day three years ago that went horribly awry. Leaving two young adults dead, after being run over in their sleeping bag by a utility. The driver was the son of a Policeman. 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… […]
Reporter: [Police officer 1] and [Police officer 2] arrived on the scene. They were told to take the driver to hospital for a blood and urine test. They recognised the name [RC]. [RC] was the son of one of their own. […]
D family lawyer: [Police officer 2] was the officer on duty. [Police officer 2] recognised him, asked him if his father was [name]. And when he was then, [Police officer 2] gave him the phone, said: ‘Look you better ring your father’. Reporter: [RC]'s father [name], a senior highway patrol officer at Orange Police for three years - a close colleague and friend of [Police officer 1 and Police officer 2] - was stationed six hours away, on the NSW mid north coast. The NSW Police Force Code of Practice for Crime states: ‘When you arrest a child take reasonable steps to tell the parents or guardian immediately’. A copy of this section of the Code of Practice for Crime was referenced in the statement of [the Superintendent] and a copy annexed to his statement. Inside the Police car, using [Police officer 2]’s own mobile phone, 17 year old [RC] had a private conversation with his dad. Reporter: What was discussed in that conversation? D family lawyer: Well, umm, I don't know. The─ we were never told what was discussed. The program by absence of reference to the above ‘Code of practice for Crime’ infers impropriety, when in fact the officers were discharging their obligations. In accordance with the code, officers are also required to consider the child’s welfare. A copy of this section of the code was references [sic] in the statement of [the Superintendent] and copy annexed to the statement. W family lawyer: There is always a need for transparency and clarity, and what they should have done was demonstrate that transparency and clarity by referring the investigation to somebody who had nothing to do with the Police officer whose son was involved in this accident, or the officers who knew that Police officer. […]
Reporter: The next day, the day after his daughter died, a grieving [EW’s father] was called in to Orange Police station. Police specifically advised the parents of the deceased that [RC] was the son of a Police officer who used to be stationed at Orange and to allay concerns. Police were of the view that they should be told by Police and not hear it from [a] different source. […]
EW’s father: They told me that the driver of the car was a son of a Policeman, who had been formerly stationed at Orange Police Station. Reporter: Was that a conflict of interest to you? EW’s father: They declared it as a conflict of interest, they, they used that terminology, and so I was led to be, led to understand that there would be a, a very different way that the investigation would be carried out, that it would be carried out appropriately. […]
Reporter: Inside court, [DG] gave evidence. He denied there was ever a conflict of interest. He didn't work with [RC]’s father… […]
Presenter: The Coroner has since reported that she was satisfied that Police investigations were thorough and adequate, and not compromised by the fact that [RC] is the son of a Police officer who was formerly stationed at Orange… The complainant also submitted that the fact that RC was the son of a Police officer formerly stationed at Orange did not complicate matters as suggested in the segment and that the issue had no bearing on the investigation. The ABC submitted that this was newsworthy and a matter of public interest, and was presented in context. EW’s father stated in the segment that he had been advised of the conflict of interest and that the investigation would be carried out appropriately, and the Coroner noted detailed submissions from the family that revolved around the perception of a conflict of interest in the investigation of the deaths of EW and WD. In response to the complainant’s statement ‘that the only suggestion of the Police investigation into the incident being “conflicted” came from Four Corners’, the ABC submitted that it ‘understands this concern is in fact held by the families of the deceased persons, their lawyers and the respected QC, [DW] who independently examined the investigation’. The ordinary reasonable viewer would have understood the relevant factual assertions to be that:
This was factual material; the assertions were specific, unequivocal and capable of independent verification, and each was a material fact in the context of the broadcast. It is not disputed that RC was the son of a Police officer. The Coroner’s Report finds this is an uncontroversial fact and also verifies that the central theme of the submissions of the families at the Inquest revolved around the perception of a conflict of interest in relation to the Police investigation. After considering the relevant issues, the Coroner’s Report states ‘I am satisfied on the balance of probabilities that the investigation in the circumstances was thorough and adequate and was not compromised by the fact that RC is the son of a Police officer who was formerly stationed at Orange’ (page 19 - emphasis included in report). It was made clear in the segment that the parents of EW and WD believed that the fact that the driver of the vehicle was the son of a Police officer stationed at Orange resulted in the investigation into the deaths of their children being compromised, and justice not having being done. This is established in the introduction with the presenter’s words: Leaving two young adults dead, after being run over in their sleeping bag by a utility. The driver was the son of a Policeman. The parents of [EW] and [WD] believe justice has not been well served. Through the juxtaposition in the segment of references to RC being the son of a police officer with interviews with the parents and their representatives, their belief that the investigation had been compromised by a conflict of interest was reinforced by the presenter and the reporter. References included:
This material preceded the Presenter’s conclusion in which he reported on the Coroner’s finding that the Police investigation had not been compromised. However, any perceived conflict of interest was not presented as incontrovertible fact. Although this was a strong theme in the segment, in the context of the segment in its entirety, the ordinary reasonable viewer would have understood that the parents’ views were of an inherently judgmental, subjective or contestable nature. Further, in the closing statement by the Presenter, which directly reiterated the Coroner’s finding that the investigation was not compromised, it was made clear that this view had not been accepted by the Coroner and by Police on review of the case. These various opinions were not factual content covered by the obligations set out at Standard 2.1 of the Code. In the context of the segment in its entirety, it was also made clear that the outcomes of the Police investigation at the scene, and on review, turned on the fact that the scene was declared private property which meant that road related offences were not available. 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.
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