BERNHARDT BENTINCK AGAINST THE PRESS

Case Number: 2608

Council Meeting: SEPTEMBER 2017

Verdict: Not Upheld

Publication: The Press

Ruling Categories: Privacy

Overview

1. The complainant makes wide-ranging allegations against The Press and one of its reporters in relation to his tenancy of a property at 50 Banks Avenue, Christchurch. Only one of these complaints falls within the jurisdiction of the Press Council, and our decision is limited to that. That is the complaint relating to an alleged breach of privacy.

Background

2. The complainant leased the property at 50 Banks Avenue from a Ms Morgan (the registered owner may well have been a corporate entity but nothing turns on that). He apparently told her he was involved in traffic engineering and transportation matters, and wanted the property for himself, his wife and his children, and that he was earning $170,000 per year.

3. The owner was alerted by neighbours that a great many people seemed to be coming and going from the property. As a consequence, the owner, along with the reporter, visited the property.

4. We note for the sake of completeness that the complainant has gone to the Tenancy Tribunal alleging breach of the lease, and states he has made a complaint of criminal trespass against the reporter concerned.

The Article

5. As noted already the article related to the complainant's tenancy of the property. In it the owner alleges she was misled by the complainant and this led to a lease being granted. Despite a limitation on the number of tenants she stated the complainant allowed many more people to stay at the property essentially running it as a backpackers. The article points out that the complainant, under a different name had behaved in this fashion previously. The complainant's convictions and the numerous names he has used over the years were also featured.

The Complaint

6. The complainant states that his privacy was breached because the reporter entered the house, took photos of the interior, and failed to leave when he instructed him to do so. The complainant said the owner had no authority to invite the reporter inside the property, and nor did a person called Hendrik, who appears to have been one of the occupants of the house. In correspondence, the complainant acknowledges his background, which we will turn to in our decision.

The Response

7. The Press’s position is that the reporter was invited into the property by the owner. In any event, the editor states that given the complainant’s background, which he acknowledges, the public interest outweighs his privacy considerations.

The Decision

8. The Principle Privacy reads, where relevant, as follows:

"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."

9. In our opinion, the background of the complainant is relevant to the complaint before us. The complainant goes by many names and aliases. He has been known as Wayne Eaglesome, as well as Richard Mountjoy, Ari Ben Yitzhak, Bernhardt Augustus Longwater, Alexander De Villiers amongst others. It appears from the material before the Council that he currently holds a passport in the name of the complainant, which we can only assume came about by way of a change of name by deed poll. In 2006, as Alexander De Villiers, he was jailed for five years for sexually violating and indecently assaulting an 18 year old backpacker and indecently assaulting another youth. While in prison, he was apparently reprimanded for impersonating a corrections officer. In 2012 he was jailed for three years for various fraud offences. Earlier, in 2003, he was jailed for fraud offences, including impersonating a priest named Father Anthony Garibaldi. A report from the parole board in August 2013 said a psychologist found Eaglesome was at medium to high risk of sexual offending, and at high risk of general reoffending, particularly fraud.

10. The Press also states he has been imprisoned in the USA, which he does not deny.

11. The Press revealed last year that the complainant was operating several hostels for backpackers and temporary workers under the name Richard Mountjoy.

12. At the time of the alleged breach of privacy, it appears the complainant was in Thailand, which he confirmed by telephone call to the Council’s executive director, who documented the conversation. He says he was alerted by a fellow “flatmate” by phone that a reporter was on the premises. It appears this is when he alleges he ordered the reporter to leave.

13. As noted, he also alleges that neither the owner nor one of the occupants (Hendrik) had any lawful authority to enter the property.

14. The complainant stated that he had a number of witnesses to his version of events, but we have no such material before us. Nor has he supplied us with a copy of the lease. While it is impossible for us to rule definitively, it would seem to us highly likely that an owner of a property would have a right of inspection as well as a right to enter where there was a serious breach of the terms of the lease. The owner, in the article, states the lease limited the occupancy to the complainant and 4 others. Apparently this is not denied.

15. The complainant also maintains that no-one has found he breached Christchurch city bylaws or has run a “doss house”. However, the Press Council has been supplied with documentation from the Christchurch City Council to the owner of the property (as noted the actual registered owner may well be a corporate entity, but that Ms Morgan is undoubtedly the beneficial owner). In a letter, the compliance officer for the CCC states that there was an inspection of the property on 13 July, when it was established that the complainant, i.e. the tenant, was providing accommodation to 19 persons, with higher numbers of guests on weekends. It was pointed out that this was in breach of the District Plan, and a contravention of the Resource Management Act 1991 (RMA) as a non-compliant activity. The owner was therefore told to cease the non-compliance or apply for an obtain a resource consent for the non-compliant activity. The letter was accompanied by the necessary RMA direction. 

The statement that he has not been found to have breached CCC by laws etc is strictly true. However, it is quite misleading. The breach, occasioned by his actions, has, of course, been visited on the owner.

16. The complainant maintains this has nothing to do with the breach of his privacy. Again, we are hampered by not seeing the lease. But any lease could not contract out of the provisions of the RMA. And a tenant breaching the provisions of the Act would clearly be in breach of the lease, which would likely entitle the owner to enter and investigate.

17. The complainant alleges that he made no money from this operation and it was not a backpackers or “doss house”. He said the people occupying it were merely flatmates who contributed to the running costs of the house. One of the occupants was spoken to the by The Press, and his response clearly contradict this. The photographs also illustrate the accuracy ofThe Press report and we consider the use of the colloquialism “doss house” is appropriate.

18. In the circumstances, particularly the absence of the lease, it is impossible for the Council to definitively determine whether or not the reporter had a right to be in the house. In any event, the complainant has made allegations of criminal trespass in that regard, and that is the appropriate forum. However, it does seem to us likely that the owner was entitled to invite the reporter into the house. Furthermore, in the light of that invitation it is understandable that the reporter considered he had a legal right to be there.

19. The other problem with the complaint is that it is unclear exactly how the complainant’s privacy was breached. At the time, he was in Thailand, so his personal privacy could not have been breached. There is nothing to suggest that any of the occupants of the premises who were present considered their privacy was breached, and in any event there is no such complaint for the Council to consider. In fact, given that the complainant also rents another property in Christchurch, it has not been established that he was actually a resident of this property. On balance, we find no breach of his privacy has been established.

20 More importantly is the second sentence of our principle, set out above, that we must consider. The complainant, under various names and aliases, has a considerable criminal record for fraud and has also been convicted of sexual offending against backpackers. The parole board report states that a psychologist suggests that he is at high risk of future fraudulent offending. It appears he obtained the lease of this property by telling the leasing agent an untrue story. He does not deny that he told the leasing agent, that the property was for himself, his wife and family. The photographs illustrate the state of the house, which clearly breaches the provisions of the Christchurch District Plan, as established by the matters we referred to previously. The comments from one of the occupants, and the photographs, also suggest an exploitation of backpackers. This appears to be a continuation of the complainant’s past behaviour, and we are satisfied that there are significant matters of public interest contained in this story which the public should be made aware of and in our view they outweigh the complainant’s right to privacy. Indeed, we consider the publication of this story was responsible and very much in the public interest.

21. The complaint is not upheld.

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