X AGAINST THE PRESS / STUFF
Case Number: 2765
Council Meeting: MARCH 2019
Decision: Upheld with Dissent
Publication: The Press
Balance, Lack Of
Comment and Fact
Headlines and Captions
On 31 January, Stuff published an article titled “Christchurch soldier found not guilty of rape”.The article starts by stating Tyler Ashley Harding was acquitted of charges of sexual violation after a jury trial in the Christchurch District Court.It then goes on to report some details of the case, including the location and that alcohol was involved.Harding’s view is then reported – that the sex was consensual. Harding’s defence lawyer was then quoted as saying the complainant was not reliable.
The report then quotes from the defence lawyer stating that the complainant was not sure if the perpetrator was Harding but then told someone else it was.The defence lawyer is also quoted saying that the complainant did not want to call the police as she was worried her boyfriend would not forgive her.
The following two paragraphs report quotes from the Crown prosecutor, stating that the complainant could not consent because she was asleep and had no opportunity for consent and that she did not want to contact police because she did not think she would be strong enough for the court process.
A complaint is lodged by one of the witnesses in the trial who we will call ‘X’.X complains that the article misrepresented the facts of the case, cast the victim in a negative light, and inappropriately paraphrased the complainant’s words.
X immediately pointed out to Stuff inaccuracies in the report such as the word ‘friends’ used to describe acquaintances.This was made clear during the court proceedings but misreported in the original article.X also points out that the evidence and questioning of the complainant occurred in a closed court so the reporter was not privy to the complainant’s version of events.X argues that the reporter should have made some attempt to understand and given due weight to the complainant’s views in his article.
X also points out that the tagline ‘a jury accepted a woman consented to sex after drinking and going to bed to sleep’ is inaccurate because the jury did not accept this.They accepted that they could not be satisfied beyond reasonable doubt that the defendant did not have a reasonable belief to her consenting.
X states that the article focuses on irrelevant details in the case, such as the complainant initially not wanting to speak to the police (as this is often the case in sexual assault cases); and inconsistencies in the complainant’s testimony, but none of the inconsistencies in the defendant’s testimony.The defence lawyer’s comments are used to represent the views of the complainant and are presented as factual rather than the conjecture of a defence lawyer whose role it is to undermine the reliability of the complainant.The actual details of the case, X argues, were not reported on – that is, the level of intoxication of the complainant and her ability or not to consent.
X asks that reporters understand cases in their entirety, present a balanced view of sexual assault trials and accurately present the nuances of what a guilty verdict actually means.
Kamala Hayman responds for Stuff.She addressed the complaint under three Media Council principles.
First, Principle 1 Accuracy, Fairness and Balance. Hayman argues that the headline caption and main body of the article are an accurate account of the summing up put by both lawyers in the final days of a rape trial.She states that their reporter was only present for the summing up by both lawyers.
Given the not guilty verdict, she argues that the story did give priority to the defence case and sought to explain why the jury did not reach a guilty verdict. She defends that story by saying ‘a single court story can never be a comprehensive account of a trial and this was a particularly brief story’.
She accepted there were errors in the initial story.The initial reference to evidence from two ‘friends’ was incorrect and once X had pointed this out it was changed to ‘witnesses’.She also acknowledges and deeply regrets the ‘more significant’ error in the tagline and states ‘it was wrong to state that a not guilty verdict meant that the jury necessarily accepted the woman had consented’.She states that this was removed and can only be accessed now through limited means.
This correction falls under the second Media Council principle to be enacted: Principle 6: Headlines and Captions.
For the complaint under the third principle – Principle four: Comment and Fact – Hayman states that the article is an account of statements made in court by the defence and prosecuting lawyers.Hayman states that ‘four paragraphs are given to the summing up of the defence case by lawyer Simon Shamy.These are attributed to him at the beginning and end of his statements as is usual practice’.She states that no editorial comment is included in the article.
Principle Six: Headlines and Captions states that headlines, sub-headings, and captions should accurately and fairly convey the substance or a key element of the report they are designed to cover. X alerted Stuff to the inaccurate tagline for this article.By Stuff’s own admission it breached this principle.
Principle Four: Comment and Fact states that a clear distinction should be drawn between factual information and comment or opinion. At question here is: is what could reasonably be taken as fact, actually comment?The focus here is on paragraph seven which presents information about what the complainant told police about identifying Harding.
This paragraph, Stuff states, was taken from the closing statement from the defence lawyer.It is, as such, the defence lawyer’s interpretation of events and facts but is not the facts themselves.To the reasonable reader however, it is not obvious that this is the view of the defence lawyer, and that the complainant and prosecutor may have a different view of events.Stuff states that this paragraph should be read in the context of the previous and following ones and be seen as one continuous quote from the defence lawyer.The majority of the Media Council does not accept that this is an acceptable presentation of comment and finds that the paragraph could reasonably be read as fact.It does not look like a submission from the defence lawyer.
Craig Cooper and Tim Watkin dissented from the majority decision on Principle 4. They noted:As far as we know the reporter was accurately reporting what the lawyer said. The reporter’s job is to report accurately, not to determine whether the content is fact or not. It is not at all unusual for articles to assume attributed reported speech continues in paragraphs that sit between others where the speaker is named. So our concern is with the application of Principle 4 in this instance.
Principle One Accuracy, Fairness and Balance states that publications should be bound at all times by accuracy, fairness and balance, and should not deliberately mislead or misinform readers by commission or omission. In articles of controversy or disagreement, a fair voice must be given to the opposition view.
In terms of balance and fairness, the principle states that in articles where there is disagreement, a fair voice must be given to the opposition view.The bulk of the article (5 paragraphs) reports the defence lawyer’s closing statement and the defendant’s point of view.Stuff states that this is acceptable because they sought to explain why the jury did not reach a guilty verdict.The Media Council does not accept this as a valid argument.The view of the complainant is important to include to ensure balance and was not given fair weight in this story.
The case turned on the level of intoxication of the complainant and whether consent was given.The story did not cover this angle.By omission, it can be argued as inaccurate. Further, the identity of Harding was not disputed, nor was that intercourse between him and the complainant took place.However, the story stated ‘the complainant told the police she was not certain it was Harding because she could not open her eyes but told one of the partygoers she did not see his face because it was too dark’.By relying on the defence lawyer’s closing statement, rather than the full evidence, Harding’s involvement was inaccurately questioned.
Stuff defends that story by saying ‘a single court story can never be a comprehensive account of a trial and this was a particularly brief story’.The Media Council disagrees.Brevity (which is the choice and fully under the control of the publication) cannot be used as an excuse for not accurately portraying both sides of a ‘disagreement’.
In terms of accuracy, the story relied on the closing statements of a court case.In doing so, it is based on the opinion and arguments of the respective lawyers.This is not evidence.By not clearly stating that this is the source of this article, Stuff is misleading readers.To present an accurate report of the trial, the reporter must understand the evidence presented. Court transcripts are readily available for them to do so if they are not to be present for the whole trial.
This is not the first time the Media Council has considered a complaint against Stuff where they have relied on counsels’ closing addresses as the sole source of their court reporting.InMeredith Connell against Stuff, the Media Council stated:
“Even a very junior court reporter would understand that counsels’ closing addresses are not evidence”.
Yet what Stuff has done is report matters from the closing in the headline and the first sentence of the original story as evidence. It is not qualified by stating it was part of defence counsel’s closing which is quite a different matter from evidence. Furthermore, as we noted at  of our decision quotes appear in the story as if they came from the evidence. The only other source would have been the witnesses themselves and there is no suggestion the reporter spoke to them.
If Stuff wished to rely on closings ... they needed to make it clear in the story that the source of what they were reporting was defence or prosecution’s closing (as the case may be) not evidence. Stuff failed to do that …
As we noted in the main decision apparently Stuff lacks the resources to have reporters in all court rooms. We can well understand that. If later it is decided that the public interest requires a court case to be reported in such circumstances the only way that can ensure the story is accurate, fair and balanced is if the reporter has access to the evidence.
We repeat it is court reporting 101 to clearly distinguish between counsels’ closings and evidence. The former are not evidence.”
We reiterate our concerns and the Media Council was unanimous in upholding the complaint under this Principle.
Media Council members considering this complaint were Sir John Hansen, Liz Brown, Craig Cooper, Jo Cribb, Tiumalu Peter Fa’afiu, Marie Shroff, Hank Schouten, Christina Tay, Tim Watkin and Tracy Watkins.