Statements concerning the thoroughness of the Police investigation

[…]

His photos show the ground is scattered with empty rum cans and beer bottles. [WD] and [EW]'s swag is up close next to the railing of the sheep pen, well away from the rows of parked cars. Next to it, [WD’s] Australia Day sombrero hat. [EW]'s rubber thongs. The swag wasn't forensically examined.

[GG] took only three photos of the car. Two of them show a white esky sitting in the tray. But [GG] didn't venture any closer, choosing not to look inside.

Instead of examining the car and its contents, according to his handwritten notes, [GG] took a handful of witness names and phone numbers before leaving the scene. Over the coming weeks, Police took statements from only a quarter of the partygoers.

Beyond that, there was no forensic investigation.

The detective in charge, [GG], then sent [RC] home.

[…]

[…]

[…]

[…]

[…]
EW’s father: After a long period of time, in March the following year, we get a letter from the Office of the DPP.

As the day wore on, there was one person the families wanted to hear from most. The driver, [RC]. But he maintained his silence; he didn't give evidence. [RC], then 17, now 21, rejected all our requests for an interview. His lawyer told us that [RC] could still be charged with manslaughter.

[GG], [name] from Four Corners how are you? We would just like to ask you some questions now the inquest is over?

[…]

The ABC’s submissions on these matters are set out at Attachment B.

In the context of the segment in its entirety (including the matters set out at points 2, 5 and 6 above) the ordinary reasonable viewer would have understood the factual assertions in the above material to be:

• 
  RC had obtained alcohol and driven to the party unaccompanied which could have given rise to charges
  
• 
  at the scene, RC was not formally interviewed to obtain a full version of events from him
  
• 
  at the scene, the Police believed the incident had occurred on a road related area, enabling him to be charged with driving offences
  
• 
  at the scene, enquiries were not made and procedures were not followed in order to obtain evidence sufficient to charge the driver with indictable offences or driving offences under traffic laws
  
• 
  RC was not questioned about his consumption of alcohol during the night of the party and enquiries and observations were not made that would have confirmed that he had been drinking, despite the presence of an esky in the back of his ute which might, given the circumstances, have been found to contain alcohol if it had been opened by Police, and internet photos showing RC consuming alcohol
  
• 
  3 hours later a blood and alcohol sample was taken at the hospital, giving a positive result but RC was not detained for questioning and was sent home
  
• 
  RC subsequently declined to be interviewed by the Police or to give evidence at the inquest because he was advised that he could still be charged with manslaughter
  
• 
  in view of the lack of evidence the DPP decided that no charges would be laid.
  

The ABC submissions show that it relied on evidence and materials presented at the Inquest and information from the NSW Police’s Director of Investigations and Field Services. Some of the ABC’s enquiries to the Police were not answered.

The Coroner’s report verifies that:

• 
  RC had obtained alcohol and driven to the party unaccompanied, which could have given rise to charges
  
• 
  he had been drinking at the scene ‘to some unknown extent’
  
• 
  he was breath tested at the scene and the alcolizer registered zero
  
• 
  at the time of the incident RC was arrested and conveyed to a hospital for blood and urine testing giving a level 0.039g/100mL of alcohol at 7.40 am on the morning of the accident
  
• 
  RC did not provide a statement to investigating Police as to his version of what occurred and was not charged with any offences under the Road Transport legislation
  
• 
  the Coroner suspended the Inquest having formed the view that the evidence she had heard was capable of satisfying a jury beyond reasonable doubt that the driver was guilty of the indictable offence of ‘drive in a manner dangerous causing death’
  
• 
  the DPP, despite additional submissions from the families of EW and WD, declined to prosecute.
  

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

The reporter stated that the unlicensed driver had ‘illegally’ driven his car on the highway and had been drinking, and the segment featured DW QC describing his examination of the police investigation of the case, in which he states that questions of driving in a manner dangerous to the public or failure to assist were not ‘the subject of the level or inquiry that I would expect from seasoned police officers where you have two young people dead’. This is followed by the discussion of whether the accident occurred on a road related area (see point 5 above) which indicates that at the scene the Police considered it was open to them to lay charges.

The relevant content also included further statements by parties including the parents, their lawyers and DW QC that were critical of the Police investigation. For example:

• 
  Reporter: And whose responsibility was it to gather that evidence?’
  

Reporter: And had they not?

EW’s father: Not in my mind.

• 
  DW QC: It makes one wonder whether or not that rigorous independent assessment that ought to have been applied to this case, was in fact brought to bear, and simply put I don't think it was.
  
• 
  Reporter: What is this sort of investigation?
  

In these statements it was made clear through the use of language such as, ’Not the subject of the level of inquiry that I would expect’, ‘Not in my mind’, ‘It makes one wonder’, ‘I think it fails’ that the interviewee is expressing an opinion. The ordinary reasonable viewer would have understood that these views were of an inherently judgmental, subjective or contestable nature. Therefore, they were not factual content covered by the obligations set out at standard 2.1 of the Code.

9. 
   Information provided about the blood alcohol sample taken from RC
   

Did they tell you they had taken a blood sample from him?

[WD’s mother] quickly discovered from a friend that wasn't true.

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

The ABC submitted that it was given the document provided to WD’s mother showing a ‘No’ for a blood sample being taken; the Police advised this was an error but did not respond to the ABC’s questions in relation to this issue; the segment accurately conveys WD’s mother’s attempts to investigate her suspicions that RC had been drinking, her discovery that a blood sample had been taken and her request that it be tested; and the segment quoted directly from the pathologist’s report on the results. The ABC said:

We are satisfied that this is an accurate version of events, that the program made reasonable efforts to seek an explanation from Police for inclusion in the report, and that it was made clear to the audience that [RC] had indeed been tested for his blood and alcohol reading.

In the context of the segment in its entirety (including the matters at points 2 and 6 above), the ordinary reasonable viewer would have understood the factual assertions to be:

• 
  WD’s mother had been unaware that a blood sample was taken from RC, and had been assured by police that alcohol was not a factor in the accident
  
• 
  she obtained a copy of a Police incident report which stated there was no blood alcohol sample
  
• 
  she discovered this was untrue and obtained the results of the blood sample indicating at the time of the accident RC’s blood alcohol would have been over the legal limit for an L-plater.
  

The material facts were that WD’s mother was told by the Police that alcohol was not a factor but that, through making her own enquiries, she discovered that RC had been drinking and blood and urine tests revealed positive alcohol readings for RC. These were material facts in the context of the broadcast.

There is nothing before the ACMA to contradict these facts. As noted above, the Coroner’s Report verifies that blood samples were taken and that RC’s blood was found to contain alcohol. The ACMA accepts that the ABC’s figures came from the pathologist’s report which provided a possible range for alcohol levels at the time of the accident, including the ‘most likely’ figure of 0.079.

The relevant incident report does indicate an ‘N’ [no] for the blood sample:

However, the later narrative section of the incident report describes RC as having submitted to a breath test which returned a negative result, before being arrested and taken to hospital where blood and urine samples were taken. The report, on its face, is ambiguous. The ACMA accepts the ABC’s submissions that Police did not respond to its questions about this issue.

The statements concerning WD’s mother’s recollection of the information given to her that a sample was not collected would be understood to be her subjective account of events. In any event, the factual statements concerning Police statements that alcohol was not a factor are supported by the matters considered at point 2 above.

It was made clear in the segment that a blood sample was taken at the hospital some hours after the accident. This aspect was accurately reported.

The material facts were therefore accurately reported.

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

10. 
    Whether charges could have been laid against RC in relation to the incident
    

…

Reporter: An Inquest was called in May 2011. The Coroner's office requested a review of the Police investigation, to determine how thorough it was. The review was done by Superintendent [name] - the Commander in charge of Orange Police and [Police officer 3]’s boss. His review overwhelmingly supports [GG]’s investigation, except for his failure to consider charging [RC] with any driving offences under traffic laws. Superintendent [name] declared it was ‘an honest oversight’, because [GG] was focussed on the deaths of [WD] and [EW].

The ABC submitted that the segment makes it clear that the W family lawyer, in his comments above, was responding to the established evidence that RC was over the legal limit of alcohol for L drivers and, at the time RC was being breath tested, Police believed the scene was a road related area and therefore it was open to them to lay charges. Further,

In respect of the comments by the D family’s lawyer, the ABC submitted that the context makes it clear that he is discussing his recollection of answers at the Inquest and the comment does not relate to any offence in respect to the deaths of WD and EW.

On the references to the Police investigation which supported GG’s investigation (except for the failure to consider charging RC with a driving offence concerning his driving to the party unaccompanied), as set out at paragraphs 101 and 102 quoted above, the ABC submitted that the fact was presented in context, with sufficient distinction made between the officer’s focus on the incident that caused the deaths, and the earlier offence on the road related area.

The ACMA also notes that the Coroner initially suspended the Inquest having formed a view that the evidence she had heard was capable of satisfying a jury beyond reasonable doubt that the driver was guilty of an indictable offence, but the DPP declined to prosecute (see Coroner’s Report page 4).

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

• 
  RC was over the legal limit of alcohol for a learner driver at the time of the accident,
  
• 
  he could have been charged with certain offences
  
• 
  a decision was made not to lay charges, even minor charges
  
• 
  the decision not to charge RC with available road related offences was determined on review to be an oversight
  
• 
  DW QC considered this to be a simplistic response.
  

There were two references by the reporter which reinforced earlier content making it clear that driving offences could only arise from incidents occurring on a road related area: references to the change in determination that the scene was a road related area (with the result that as the incident occurred on private property ‘RC won’t be charged with anything’) and the Superintendent’s review finding that the failure to charge RC with driving offences occurring prior to the party was an oversight.

The segment had also made it clear that RC had driven unaccompanied to the party, which was a road related offence for which he could have been charged (see points 3 and 8 above).

Although it might have been possible to infer from the W family’s lawyer’s statements that the decision to lay charges referred to the incidents relating to WD and EW’s deaths as opposed to the more minor offences mentioned above, in the context of the segment in its entirety, sufficient explanatory background material was presented to convey that no charges could have been laid against RC for driving offences at the party, once the scene of the incident had been determined not to be a road or road related area.

The material facts are verified by the Coroner’s Report (pages 3, 8-9).

The material facts were therefore accurately reported.

Accordingly, it is concluded that the ABC made reasonable efforts to ensure that the material facts were accurate and presented in context, in accordance with standard 2.1 of the Code.

Presentation of factual content

The ACMA has also considered the obligation at standard 2.2 not to present factual content in a way that will materially mislead the audience.

Here, the ACMA has found that the specific matters complained of (set out above) were not likely to mislead an ordinary reasonable viewer of the program. The matters themselves were factually accurate, or the ABC made reasonable efforts to ensure their accuracy at the time of broadcast. Where views were expressed on matters of a judgmental, subjective or contestable nature, this was sufficiently signalled to viewers.

However, even where (individual) material facts are presented accurately and in context, it is still possible for an audience to be materially misled – including through problematic framing and emphasis.

For this reason, the ACMA has considered whether the general framing of the program might have so coloured the ordinary reasonably viewer’s perceptions that he or she was misled on the matters complained of. 

The ACMA considers that an ordinary reasonably viewer would have taken from the segment that it had adopted a probing standpoint which queried aspects of the police investigation and explored the potential conflict of interest arising from the fact that the driver of the vehicle was the son of a Police officer stationed with investigating officers. 

However, the segment also included statements such as:

Reporter: Inside court, [GG] gave evidence. He denied there was ever a conflict of interest. He didn't work with [RC]’s father. [GG] also said he did attempt to interview [RC]. He phoned his home twice.

As the day wore on, there was one person the families wanted to hear from most. The driver, [RC]. But he maintained his silence; he didn't give evidence. [RC], then 17, now 21, rejected all our requests for an interview. His lawyer told us that [RC] could still be charged with manslaughter.

The ordinary reasonable viewer would have understood from these statements that claims of a conflict of interest had been considered by the Coroner and denied by the Police. Further, RC had not been interviewed by the Police because he had maintained his right to silence while charges for indictable offences (as distinct from road related offences) remained possible.

Also, the Presenter’s final statement concerning the perceived conflict of interest repeated the Coroner’s finding:

For these reasons, the ACMA considers that the audience would not have been materially misled on this matter.

Accordingly it is concluded that the ABC did not present factual content in a way that would have materially misled the audience and complied with standard 2.2 of the Code.

Issue 2: Impartiality

Relevant Code provisions

4. Impartiality and diversity of perspectives

4.1 Gather and present news and information with due impartiality.

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

Judgements about whether impartiality was achieved in any given circumstances can vary among individuals according to their personal and subjective view of any given matter of contention. Acknowledging this fact of life does not change the ABC’s obligation to apply its impartiality standard as objectively as possible. In doing so, the ABC is guided by these hallmarks of impartiality:

• 
  a balance that follows the weight of evidence;
  
• 
  fair treatment;
  
• 
  open-mindedness; and
  
• 
  opportunities over time for principal relevant perspectives on matters of contention to be expressed.
  

Impartiality does not require that every perspective receives equal time, nor that every facet of every argument is presented.

Assessing the impartiality due in given circumstances requires consideration in context of all relevant factors including:

• 
  the type, subject and nature of the content;
  
• 
  the circumstances in which the content is made and presented;
  
• 
  the likely audience expectations of the content;
  
• 
  the degree to which the matter to which the content relates is contentious;
  
• 
  the range of principal relevant perspectives on the matter of contention; and
  
• 
  the timeframe within which it would be appropriate for the ABC to provide opportunities for the principal relevant perspectives to be expressed, having regard to the public importance of the matter of contention and the extent to which it is the subject of current debate.
  

The complaint to the ABC was that the segment was not fair and impartial and that the story was sensational, misleading and ignored the evidence.

The complaint to the ACMA was that the ABC ‘all but ignored the facts and evidence presented to the Coronial Inquest which examined in detail, the questions raised by the Four Corners program. It therefore did not adequately equip audiences to make up their own minds consistent with the public service character of the ABC.’

Broadcaster’s submissions

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

The ABC did not breach standard 4.1 of the Code.

The complainant’s concerns about impartiality largely arise from alleged inaccuracies in the program. The ACMA has found at Issue 1 that the segment presented factual material and opinions accurately, and that in many respects, factual assertions in the program were verified from the Coroner’s Report.

The ABC submitted that the segment displayed the hallmarks of impartiality and that the NSW Police were given repeated opportunities to express their perspective, but did not give responses to all the ABC’s questions. As well, to the extent that the NSW Police set out their perspective in the written statement provided, the key elements were incorporated into the program.

The relevant provisions require the ABC to ‘gather and present news and information with due impartiality’ [emphases added]. Inclusion of the word ‘due’ indicates an element of flexibility depending on the particular context.

Achieving impartiality requires a broadcaster to present content in a way which avoids conveying a prejudgment, or giving effect to the affections or enmities of the presenter or reporter, who play a key role in setting the tone of the program, through their style and choice of language.

A program that presents a perspective that is opposed by a particular person or group is not inherently partial. As noted by the ABC in its submissions, impartiality does not require that every perspective receives equal time, or that every facet of every issue is presented. Whether a breach of the Code has occurred will depend on the themes in the program, any editorial comment, the overall presentation of the story and the circumstances in which the program was prepared and broadcast.

The ABC is entitled to explore controversial issues that are newsworthy and of public interest, as long as the hallmarks of impartiality are met; namely, that there is a balance that follows the weight of evidence; fair treatment; open mindedness; and opportunities over time for principal relevant perspectives on matters of contention to be expressed.

Context will be relevant. In this case, the context for the segment was established in the presenter’s opening statements:

Therefore, it was clear from the outset that the segment was to explore the viewpoints of the parents of EW and WD. Further, it was established their views were contentious and not supported by the Police, the Coroner and DPP.

The program continued with a reconstruction of the events surrounding the deaths of EW and WD and was followed by interviews with their parents and their lawyers in which they presented their perspectives and opinions on the Police investigation. It is undisputed that the driver was the son of a Police officer formerly stationed with Police officers who initially attended the scene. Critical issues were whether alcohol was a factor in the incident; whether a proper level of inquiry occurred at the scene; whether the investigation was compromised by the fact that RC was the son of a police officer; and whether driving offences could have been pursued (a point that was dependent on whether the incident occurred on a road related area).

The segment concluded with the following statement:

In this case, the program explored the circumstances surrounding the deaths of WD and EW who were run over by a learner driver on private property, focussing on the concerns of their parents over the Police investigation into the incident and their perception that it was compromised by the fact that the driver was the son of a Police officer.

As noted at Issue 1, above, the perspectives of the parents and their legal representatives were accurately presented as their viewpoints. Factual assertions were verified from the Coroner’s Report or reasonable efforts were taken to ensure accuracy.

Fair treatment

While the views of the parents and their representatives were the main focus of the segment, the Police were given opportunities to address and clarify factual issues raised by the ABC but did not respond fully. The ABC relied on evidence provided at the Inquest. The Coroner’s findings that the Police investigation was not compromised were clearly stated at the close of the segment. The opening made it clear that the Police, the DPP and Coroner did not accept the parents’ contention that the Police investigation was compromised because RC was the son of a Police officer formerly stationed with investigating officers.

It was also made clear during the segment that GG stated that he ‘didn’t work with [RC]’s father’. The fact that he had denied a conflict of interest was also mentioned. The segment mentioned that GG had stated before the Inquest that he had ‘[attempted] to interview [RC]’ and had ‘phoned his home twice’, thereby making it clear that he had made efforts to obtain a statement from RC. The segment clearly outlined the fact the RC was breath tested by Police at the scene of the incident, but that the alcolizer used in doing so was subsequently found to have been defective. Accordingly, the audience could deduce that the initial assumption by Police that alcohol had not been a factor in the incident was a reasonable one. The NSW legal distinction between a road or road related area and private property, and the charges that can be pursued in each instance, were also articulated sufficiently in the segment.

Open mindedness

While the segment featured many viewpoints that were critical of the Police investigation into the incident, as noted above, it also made it clear that the Coroner had found that the Police investigation was not compromised by a conflict of interest. The segment as a whole did not convey a prejudgement on the issues.

As noted above and in the segment, the Police were given the opportunity to contest the views put. The segment also made it clear to the ordinary reasonable viewer that issues concerning the incident had been contested and determined by the Coroner. Opposing viewpoints were explored in sufficient depth to ensure that viewers were left free to make up their own minds in relation to the key issues such as the adequacy of the Police investigation.

Opportunities over time for principal relevant perspectives of contention to be expressed

The ACMA also notes that principal relevant perspectives on matters of contention were presented in the segment.

For example, the segment established the basis of the parents’ concerns over the Police investigation and made it clear that contentious issues had been considered by the Coroner who found that the Police investigation had not been compromised. It mentioned that the Police review ordered by the Coroner ‘overwhelmingly supported GG’s investigation’ (other than his failure to place minor charges); and it referred to the fact that RC ‘maintained his silence’ and ‘didn’t give evidence’ at the Inquest, indicating that he had exercised a right of silence.

Conclusion

In terms of the overall presentation of the segment, the ACMA makes the following observations:

• 
  The reporter maintained a relatively neutral tone throughout the broadcast and did not use sustained emotive or colourful language. The ACMA considers that the language and tone did not convey any prejudgment, nor did it appear to give effect to any affections or enmities of the reporter or presenter.
  
• 
  The segment made it very clear that there were opposing views. As indicated in the Code’s Principles above, impartiality does not require that every perspective receives equal time, nor that every facet of every argument is presented.
  
• 
  While the majority of those interviewed in the segment supported the parents’ views, the reporter made it clear that they were contestable and had been considered by the Coroner who found the Police inquiry was not compromised.
  
• 
  The fact that equal time was not allocated to each perspective does not indicate that the broadcast was biased. The ACMA considers that viewers would have been aware that there were conflicting views.
  

Accordingly, the ABC did not breach standard 4.1 of the Code.