[GG] produced 43 photographs in the brief of evidence. The Forensic Services Sergeant produced an additional 20. 63 in total being produced

Furthermore, Four Corners has explained that it sent NSW Police a specific question asking for reasons why [RC] was not interviewed at the time of the incident. No response was provided to the program.

We note the report goes on to immediately note that a blood alcohol sample was taken, that it was examined by a forensic pathologist, [name], and that [RC] was found to be over the legal limit for licensed drivers. 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 alcohol reading.

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

[the 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. It could have been drink driving.

REPORTER: And none of these were pursued?

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

[The D family lawyer]: At the inquest [GG] said that he deliberately made a decision not to lay them. This is surprising but, it's what he said he did.

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.'
Superintendent [name] did not "declare it was an honest oversight." The Coroner stated that Superintendent [name] surmised it was an oversight.
Four Corners has a copy of Superintendent [name’s] statement, which was reproduced in graphic and broadcast. In it, Superintendent [name] writes: '102. It would appear that the possibility that these offences were committed were not further examined and have been an oversight with the focus of the investigation being the deaths of [WD] and [EW]. I believe this was an honest oversight and nothing sinister is inferred from it." Superintendent [name] directly and clearly declares in his own document that it was 'an honest oversight'.

We are satisfied this fact was presented in context, with sufficient distinction made between the officer's focus on the incident that caused the deaths, and the earlier driving offences on the road beyond the property where the party occurred, that would have been subject to "driving offences under traffic laws";

REPORTER: The review was done by Superintendent [name] - the Commander in charge of Orange police and Detective [GG’s] boss. His review overwhelmingly supports Detective [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 Detective [GG] was focussed on the deaths of [WD] and [EW].
Detective [GG] spoke to [RC's] mother and she informed him that on legal advice any approach by the police should be directed to his lawyer. His lawyer was spoken to the same day which was in February 2010. In March 2010 the lawyer for [RC] was again spoken to. A third approach was then made to the lawyer’s office to speak with [RC]. A further approach was made to [RC’s] mother and on legal advice police were informed that [RC] would not speak with police. [RC] exercised his right of silence as provided by the Evidence Act s139.
We note the advice to Detective [GG] from [RC’s] mother, that his approaches should be directed to his lawyer. There was no editorial requirement to include that detail within the context of the reporter's brief reference to the inquest resuming and noting the fact Detective [GG] gave evidence;

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

The ABC understands that Detective [GG] first phoned [RC's] home on 26 February 2010 to obtain a statement (one month after the event); and again 'some time later' after [RC’s ] lawyer did not respond to his calls. On both occasions he spoke with [name]. Detective [GG]'s approaches to [RC’s] lawyer was not material to this aspect of the report.
Four Corners did not put all of the responses provided by the Police on their website.
Four Corners has provided the following explanation; "Four Corners placed the statement provided by the NSW Police on 18 October 2013, on its website. When checking the website, the program discovered that one of the dot points had not been included. It said "It is factually incorrect to say that the driver's father was a friend of the investigating officer. They had limited contact, worked in separate buildings in separate specialist areas and didn't socialise together." This oversight has been corrected and the full statement is now on the website.

The ABC submitted the following to the ACMA (11 September 2014):

In keeping with the Code requirements, Four Corners made reasonable efforts to ensure that material facts were accurate and presented in context. 

In relation to the statements made by [the W family lawyer] and [DW QC] and identified by ACMA [relating to whether or not a version of events had been obtained from [RC] by Police], these efforts included:

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  Reviewing the report of Magistrate [name], Deputy State Coroner, which identified as an ‘uncontroversial fact’ that ‘[RC] never provided a statement to investigating Police as to his version as to what occurred that fateful evening’.
  
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  Conducting detailed interviews with [the legal representatives of the victims’ families], both of whom had represented the families of [EW] and [WD] at the Coroner’s inquiry, and were familiar with the relevant materials.
  
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  Seeking an interview and information from the NSW Police, including asking the following questions:
  
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    Why did Police decide to send [RC] home on the morning of the incident without requesting a statement from him or an interview with him? He had a support person available.
    
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    Please list the specific dates that [GG] approached [RC] for a statement/interview.
    
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    Was there a crash scene investigation? If so, what was it, who did it, when was it done? There is confusion with the inquest evidence given by [GG] – he says Bathurst weren’t called and then said they were called. Which version is correct please?
    

In relation to the statement made by the reporter that the official Police incident report stated that there was no blood alcohol sample, the program’s review of [GG]’s report constitutes reasonable efforts to ensure accuracy. The document was shown on screen, including the relevant text: ‘Blood Alcohol Sample? N’. The complainant does not dispute that the report incorrectly stated that no blood alcohol sample was taken. The program made clear that blood alcohol samples were in fact taken. Also the program notes that in its list of questions sent to Police before the program was broadcast, they specifically asked:

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  Why did [GG] declare there was no blood sample taken from the driver in the event/incident report?
  

You have also asked that the ABC’s response specifically address the complainant’s reference to Sgt [O’s] statement.  The program has explained that two sections of the program are relevant.  In the first section, transcribed below, the program focused on a question Police asked about [RC’s] alcohol consumption at the party that night.  Based on transcripts of evidence and materials admitted in the Coronial Inquest, the program was aware that [RC] was not asked about his drinking history that night nor any particulars about his alcohol consumption. He was only asked whether he had had a drink in the 15 minutes prior to Police arriving on the scene, despite the driving incident occurring almost two hours earlier:

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.

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?

[The D family lawyer]: I think the question that they asked him from memory is, have you had a drink in the last fifteen minutes, rather than have you been drinking.

REPORTER: We're talking about a potential double fatality here at the moment...

[The D family lawyer]: Correct.

REPORTER: ...Police arrive.

[The D family lawyer]: Correct.

REPORTER: And the only question they ask of the driver...

[The D family lawyer]: Is have you been drinking in the last fifteen minutes.

REPORTER: Fifteen minutes.

[The D family lawyer]: And um that, that's correct.

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.

(Sound of breathalyser beep)

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.

In the next relevant section, Four Corners examines what happened during and after [RC] was taken to the hospital for a blood and urine sample, not what questions were asked at the scene of the incident on the property in Molong. The program had moved further along in time, chronologically, and had left the scene of the incident:

REPORTER: Senior Constables [names] arrived on the scene. They were told to take the driver to hospital for a blood and urine test.

…

REPORTER: At 7:00am, as Constables [names] left Ridgeview with [RC], the detective in charge, Senior Constable [GG], arrived and began to document the area. His photos show the ground is scattered with empty rum cans and beer bottles.

[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.

W family lawyer: If it had happened on a highway with two people dead and it was on the front page of every of paper and on the national news, there would have been Police investigators crawling all over it. There would have been photographs, measurements, reconstructions, they would have obtained a, at least some version of events from the driver.

REPORTER: But they didn't. Almost three hours after the incident, a blood and urine sample was taken.

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

DW: 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. The material ought to have been put to the young driver. He was asked nothing about the circumstances. I don't think he was asked a question about the circumstances of the accident, and to me that seems to be extraordinary.

The program was now at a time some three hours after [EW] and [WD] had been run over. Both [the W family lawyer] and [DW QC] are discussing what they would expect of a Police investigation in circumstances where two people had been critically injured.  These are clearly the opinions of [the W family lawyer] and [DW QC]: expectations about what could have or should have happened are quite distinct from statements about what did happen.  An ordinary reasonable viewer would not confuse a contributor’s expectation with a statement of fact.  [The W family lawyer] said he would expect detailed forensic investigation and a version of events to be taken from the driver.  [DW QC] said that he would expect rigorous independent assessment of the circumstances, with material collected from that assessment to be put to the driver for his response.  We note that [DW QC’s] language – ‘I don’t think he was asked a question…’ - signals to viewers that he is conveying his opinion.  As it happened, [RC] was not asked further questions by the officers who took him to hospital.  No Police interview was conducted with him after he had provided blood and alcohol samples.  Instead, he was sent home.  The posing of a single question hours earlier at the scene of the incident – ‘What happened?’ – and acceptance of the brief response – ‘I didn’t see them’ – falls well short of the kind of investigation contemplated by [The W family lawyer] and [DW QC].   It was not materially misleading for the program to omit reference to it.

Impartiality

The Four Corners program displays the hallmarks of impartiality: fair treatment, open mindedness, and a balance that followed the weight of evidence.  NSW Police were given repeated opportunities to express their perspective.  These opportunities were largely declined.  To the extent that NSW Police set out its perspective in the written statement provided, the key elements were incorporated into the program.  In particular, the program noted: ‘The Coroner has since reported that she was satisfied that Police investigators 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.’

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  In practice, distinguishing between factual material and other material, such as opinion, can be a matter of fine judgement.
  
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  The ACMA will have regard to all contextual indications (including subject, language, tenor and tone and inferences that may be drawn) in making its assessment.
  
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  The ACMA will first look to the natural and ordinary meaning of the language used.
  
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  Factual material will usually be specific, unequivocal and capable of independent verification.
  
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  The use of language such as ‘it seems to me’ or ‘we consider/think/believe’ will tend to indicate that the content is contestable and presented as an expression of opinion or personal judgement. However, a common sense judgement is required and the form of words introducing the relevant content is not conclusive.
  
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  Statements in the nature of predictions as to future events will rarely be characterised as factual material.
  
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  Statements containing hyperbole will rarely be characterised as factual material.
  
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  The identity of the person making a statement (whether as interviewer or interviewee) will often be relevant but not determinative of whether a statement is factual material.
  
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  Where it is clear in the broadcast that an interviewee’s account is subjective and contestable, and it is not endorsed or corroborated, their allegations will not be considered as factual assertions.
  
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  Where an interviewee’s stance is separately asserted or reinforced by the reporter or presenter, or proof of an allegation is offered so that it becomes the foundation on which a program or a critical element of the program is built, it may be considered a factual assertion.⁴
  
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  Sources with expertise may be relied on more heavily than those without, in determining whether material is factual, but this will depend on:
  
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    whether the statements are merely corroborative of ‘lay’ accounts given by other interviewees,
    
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    the qualifications of the expert,
    
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    whether their statements are described as opinion,
    
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    whether their statements concern past or future events⁵ and
    
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    whether they are simply comments made on another person’s account of events or a separate assertion about matters within their expertise.