Case Number: 2690

Council Meeting: JULY 2018

Decision: Not Upheld

Publication: New Zealand Herald

Ruling Categories: Behaviour of Journalists
Unfair Coverage


On May 18, 2018, the New Zealand Herald published an article ‘Grade One Tosser: Sensible Sentencing Trust lawyer David Garrett’s tirade and claims ‘tough on crime works’.The article reports a text message exchange between David Garrett andNew Zealand Herald reporter, David Fisher, about the three strikes legislation and evidence as to its effectiveness.Mr Garrett complains about a paragraph in the article that refers to his arrest following his use of a dead child’s identity to obtain a passport.

The Complaint

Mr Garrett complains about the penultimate paragraph of the article which states “Garrett left Parliament in 2010 after it emerged that, in 1984, he had stolen the identity of a dead child to get a passport after reading Frederick Forsyth’s The Day of the Jackal.He was arrested 21 years later during a review of passports”.

Mr Garrett notes that the Broadcasting Standards Authority (BSA) partly upheld a complaint against TV 3’s AM Show on the grounds that referring to his distant past was unfair and gratuitous.Mr Garrett also points out that theHerald article he is complaining about is ‘different from the piece on TV 3’s AM Show – Fisher was accurate whereas TV 3 was not’.

In his complaint, Mr Garrett raises issues about the behaviour of Mr Fisher.He claims Mr Fisher is a ‘well known vehement opponent of SST [Sensible Sentencing Trust]’ and that he came to his house when he was an MP and attempted to speak and photograph his son.He claims that his then wife had to order Mr Fisher off the property twice.He states that “Mr Fisher and I have a personal history”.

Mr Garrett argues that including the reference to his past crimes is ‘a vindictive and vicious attempt to re-open wounds that go back to 1984’ and that Mr Fisher should be well-versed in the on-going mental health issues Mr Garrett suffers.

The Response

Ashleigh Cropp, Legal Counsel for the New Zealand Herald, responded by acknowledging three aspects of Mr Garrett’s complaint: that the addition of the paragraph about the passport issue was gratuitous, unnecessary and irrelevant; the second more general complaint about the balance and behaviour of Mr Fisher’s reporting and the third complaint that his mental health issues are well known and Mr Fisher should have known this.

In regard, to the first aspect of the complaint, Ms Cropp refers to the BSA ruling that included reference to the BSA fairness standard - ‘a person’s past should be left in the past, and where that person should be allowed to get on with his or her life’.However, the BSA ruling also stated that ‘we acknowledge that there was relevance in referring to Mr Garrett in the context of discussion whether the ‘three strikes’ legislation had been effective.Given that the so-called identity theft had occurred more than 30 years earlier and that Mr Garrett had been discharged without conviction, some broadcasters may not have thought it reasonable to raise that matter again.Had it been raised accurately and moderately we could not have found it to be a breach of standards but here that is not what happened.It was raised inaccurately and excessively’.Ms Cropp argues that, unlike the AM Show, theHerald reference was stated moderately and accurately and without malice.

In regard, to the second aspect of Mr Garrett’s complaint – Mr Fisher’s reporting – Ms Cropp argues that he has been balanced in his reporting.She points out that Mr Fisher has reported quotes from the Trust without commentary on a number of criminal justice issues over a number of years.She also notes that the founder of the Sensible Sentencing Trust, Garth McVicar, has said to Mr Fisher that he has been a ‘straight up, honest journalist’.Ms Cropp advises that Mr Fisher does recall visiting Mr Garrett’s house seeking comment on another story but was asked to leave and did so.

In regard to the third aspect of Mr Garrett’s complaint, Ms Cropp disputes that Mr Garrett’s breakdown and subsequent on-going mental health issues are well known and disputes that Mr Fisher’s reporting was intended to exacerbate Mr Garrett’s health issues.Ms Cropp points out that the article in question was based on a series of text messages on the effectiveness of the three strikes law.

The Discussion

The New Zealand Media Council bases its decisions on a set of publically available principles.While the complaint was not lodged under any of these principles, the principle of Privacy is the most relevant for this complaint.

The Privacy Principle states ‘Everyone is normally entitled to privacy of person, space and personal information, and these rights should be respected by publications. Nevertheless the right of privacy should not interfere with publication of significant matters of public record or public interest…. Those suffering from trauma or grief call for special consideration.’

Under this Principle the point for decision is whether the inclusion of a paragraph outlining a previous conviction is a breach of Mr Garrett’s privacy or part of the public record or public interest.While Mr Garrett makes the point that the identity theft occurred in 1984, it was not detected until more recently.Mr Garrett, himself, makes the point that he can see that his more recent offences that were reported in another paragraph are not subject to his complaint.

Mr Garrett states that ‘I myself can see the irony in a ‘tough on crime’ advocate himself having relatively recent convictions’.The Media Council considers his recently discovered identity theft in a similar light.

In this regard, the Media Council is in line with the judgment from the BSA.If reporting of a person’s history is accurate and moderate and relevant to the story at hand, then it should be part of the public record and of interest to the public.

In regard to issues of the balance of Mr Fisher’s reporting, the Media Council focuses on the complaint and article at hand.The Council considers the article in question to be balanced and initiated by a series of text messages from Mr Garrett to a reporter.

Similarly, in regard to issue of Mr Garrett’s mental health, the Council can see no evidence that the reporter actively sought to disturb Mr Garrett.Indeed, the article is a result of communication from the complainant to a reporter.

The complaint is not upheld.

Media Council members considering the complaint were Sir John Hansen, Liz Brown, Jo Cribb, Chris Darlow, Tiumalu Peter Fa’afiu, Jenny Farrell, Hank Schouten, Christina Tay, Tim Watkin and Tracy Watkins.


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