The New Zealand Press Council has not upheld complaints that the New Zealand Herald had shown a lack of balance in its reporting and that it acted improperly in using for news purposes information contained in death notices submitted to it for publication.

The Press Council considered the complaints against the background of events stemming from an incident on 2 September 1996 when Ken Heard was killed by a gunshot wound to the head. On 7 September his father died and members of the Heard family decided that their funerals should be combined. To let friends know of this, the family lodged funeral notices with the Herald on Sunday 8 September so that they would appear publicly next morning. Next day the Herald published the notice together with a front page news item which drew on information in the notice and linked the two deaths. On 17 September Dennis Fitchett was arrested and charged with Ken Heard’s murder. A depositions hearing was heard on 19 March this year and was reported in the Herald. At the time of the Press Council hearing Dennis Fitchett had not yet come to trial.

On 30 March this year, Ken Heard’s brother Lt Colonel James Heard opened a series of exchanges with the Herald on its use of information contained in the funeral notices and over what he saw as a lack of balance in the newspaper’s descriptions of Ken Heard and Dennis Fitchett.

In support of his complaint about the Herald’s use of the funeral notices, Lt Colonel Heard said that in with-holding the notices until the last safe time for publication, his family had balanced the wish to inform friends against the wish to retain privacy. They were aggrieved that the Herald had used information for other than the purposes for which it was supplied. In particular, despite specific objection, the Herald had published a news item drawing directly on the death notices.

The editor replied that privacy matters did not arise, since the intention to publish an advertisement in a daily newspaper waived any privacy considerations. The Herald’s action accorded with established practice and was in no way unethical.

In subsequent exchanges their conflicting positions were developed in greater detail.

According to Lt Colonel Heard, the paper was wrong in contending that an unpublished advertisement placed the copy in the public domain. He expressed surprise that industry practices should support what he characterised as rifling paid advertising copy for news leads. And he suggested that if that were established practice, there should be a prominent declaration to that effect.

According to the editor it was indeed widely established practice within newspapers everywhere to check birth and death notices before publication so as to provide material for news items. Information so gathered would be published simultaneously with the public notice. He said that the family’s objections were not initially expressed as clearly as was later claimed. And he contended that in any case such objections were not a reason against publishing a report that was in the general interest.

In support of his second complaint that the Herald’s reports lacked balance, Lt Colonel Heard said that the paper had chosen to “image” Ken Heard in a way disparaging to him. Thus he was described as a gang associate whose death was an execution. This approach, he said, differed markedly by the way in which the accused man Dennis Fitchett was described, even though as fathers and beneficiaries, the two men had common features. Thus one was described as a gang associate, the other as a solo father. It seemed therefore that the Herald exercised caution in respect of someone accused of murder, but was at liberty to brand the deceased. Imposing a brand on Ken Heard could influence prospective jurors away from a position of neutrality. The effect of the Herald’s reporting, he said, had been to give the accused man a comparatively favourable position. The approach had therefore lacked balance.

This was denied by the editor. The description given Ken Heard repeated information provided by the police. The Herald did not consider the term inappropriate and if they were now to attempt to correct or to go further in dealing with the background of the accused, they would risk the consequences Lt Colonel Heard identified. When the case came to trial, the facts would emerge and be reported.

Although the Press Council was impressed by the vigour and obvious sincerity of Lt Colonel Heard’s representations, it did not uphold either of the complaints. The family’s concern over the use to which the funeral notices were put was understandable. But the Press Council did not consider that the Herald had acted unethically or in breach of accepted journalistic standards in simultaneously publishing the death notices and a news item elaborating upon them, especially since it was conceded by Lt Colonel Heard that the deaths and funerals were of public interest.

Nor did the Council find any substantial ground for accepting that, in its descriptions of the victim and the accused, the Herald had shown a lack of balance capable of swaying the judgment of potential jurors. The Herald was entitled to repeat police information about Ken Heard. And the caution it had shown in characterising the accused, was natural enough since his case had not yet come to trial.


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