BRIAN MCDONALD AGAINST THE PRESS

Case Number: 2328

Council Meeting: MAY 2013

Verdict: Not Upheld

Publication: The Press

Ruling Categories: Comment and Fact
Balance, Lack Of
Accuracy
Unfair Coverage

Brian McDonald complains against a column in The Press on December 13, 2013 written by Martin van Beynen. The column was headed Compensation for Bain would be ‘a travesty’. The grounds for the complaint are that it infringes the Council’s Statement of Principles relating to Accuracy, Fairness and Balance (Principle 1) and Comment and Fact (Principle 4).
The complaint is not upheld.
The Column
The first three paragraphs of the column read:
OPINION: I can understand how it might be thought David Bain’s lawyers raised the necessary reasonable doubt at his Christchurch retrial in May-June 2009 to get him off the five charges of murder.
Reasonable doubt is the test and although, having sat through the 58-day trial, I reached the view he was guilty, the jury, for all its faults, and there were many, had the unenviable prerogative.
What I have greater difficulty with, however, is how any independent and astute person could read all the material on the trial and interview witnesses and come out thinking Bain is probably innocent, and therefore entitled to compensation.
By way of background, the column appeared just before the Binnie report was released by the Minister of Justice. It had been widely stated that Justice Binnie had found David Bain innocent of the murders of his family members. Mr van Beynen referred to police botch-ups and referred to an earlier column where he had itemised 24 pieces of evidence that formed the basis of the evidence against David Bain and which had been challenged on the grounds every one had an innocent explanation. He opined that on reading the 24 points, the most that could be said, in his view, was that it put the prosecution and defence on an even keel.
Mr van Beynen then set out five points which were to him powerful indicators of David Bain’s guilt. He stated his opinion when he said that how anybody could look at all the factors and say David Bain was probably innocent was beyond him.
He then set out what he saw as nine inconvenient questions surrounding the defence’s theory that Robin Bain was the killer. He concluded by saying:
On the basis of these points, compensation for David Bain would be a travesty.
The Complaint
In his complaint to the editor, Mr McDonald claimed that Mr van Beynen had an obsessive type interest in the case which had resulted in not presenting both sides of the evidence. He alleged that the column was unbalanced. He commented on each of the five points which Mr van Beynen gave as powerful indicators of David Bain’s guilt and gave possible answers to these indicators. In respect of the nine reasons which Mr van Beynen gave for his opinion that Robin Bain was not the killer, he alleged that they were flawed compared to the evidence at the time and certainly not balanced.
In his complaint to the Council he cited from a High Court case which stated well-known law that an honest opinion must be based on true facts stated or referred to in the material complained of. His submission was that many of the facts upon which Mr van Beynen relied were not true facts because they did not give a balanced view of those facts because other material at the trial was not referred to. His position is that “balance” and “impartiality” are essential. He referred to the grave responsibility of balance in a column such as this, alleged that Mr van Beynen had avoided “true facts” and that the “opinion” was personalized and subject to bias.
Mr McDonald referred to previous articles by Mr van Beynen and some previous conduct which, in the Council’s view are not relevant to this complaint.
The Press’ Response
The Press noted that the column was published before the publication of the Binnie report advising on whether David Bain could qualify for compensation. To so qualify the judge essentially had to find that David Bain was, on the balance of probabilities, innocent of the murders for which he was imprisoned. There had been reports that the Binnie report would indeed find David Bain innocent and it was in response to this probable finding that the article was written. The Press acknowledged that it was Mr van Beynen’s view after sitting through practically the entire trial, that contrary to the finding of the jury, the Crown had proved its case. In the column he restated his reasons for reaching that view but also acknowledged that it was perfectly possible to believe, as the jury did, that the Crown had not in fact proved its case beyond reasonable doubt, the standard required for a finding of guilt in criminal cases.
In the column Mr van Beynen was expressing his opinion that after a review of all the evidence it was difficult to see how a judge could have arrived at the conclusion that David Bain was innocent on the balance of probabilities. It was impossible in an article of 800 or so words to state all the evidence before the trial which lasted three months and all the arguments for and against.
It is The Press’ position that the column was based on facts fairly and accurately stated.
Discussion
Mr McDonald is incorrect when he states that an opinion piece must be balanced and impartial. That balance and impartiality are unnecessary in an opinion has been consistently stated by the Council (see Cases 901, 964 and 1023). A column writer is not presenting an impartial news item. An opinion can be extreme or emotive provided that the opinion is recognisable as a comment rather than a statement of fact.
The only requirement on Mr van Beynen in this case was that his opinion was based on material facts which were accurate. It is possible for a columnist to present views that have a reasonable basis in fact provided there is a proper distinction between the reporting of facts and the passing of comment on those facts (see Case 1082). Opinions are matters of evaluation and not necessarily the truth. A reader can decide whether or not the reader agrees with the opinion given.
It has been stated that an opinion must be:
(a) clearly a comment;
(b) based on provable facts set out or referred to in the opinion; and
(c) honestly believed by the columnist.
The column in question clearly challenged David Bain’s entitlement to compensation. If the Binnie report was to recommend compensation, the test was that on the balance of probabilities Binnie J had to find David Bain innocent. David Bain always had a presumption of innocence until proven guilty and the jury verdict determined that the jury was not satisfied beyond reasonable doubt that he was guilty. In the compensation matter the onus moves to the claimant to establish on the balance of probabilities that he was innocent.
Mr van Beynen clearly states that in his opinion it would be a travesty to grant compensation. This clearly carries the inference that it was his opinion that David Bain could not discharge the onus on him to succeed in the compensation claim.
In coming to his opinion Mr van Beynen gave what to him were five powerful indicators of David Bain’s guilt and nine inconvenient questions which would have to be answered if Robin Bain was found to be the killer.
Mr McDonald in his complaint sought to answer the five powerful indicators as well as the nine inconvenient questions. He does not state that any of the powerful indicators were wrong except he noted that no particulars were given of the statement that there were inconsistencies in David Bain’s various accounts.
The nub of Mr McDonald’s complaint is that Mr van Beynen had an obligation to give the other side of the story in respect of the powerful indicators and the inconvenient questions.
To impose such an obligation on a columnist would in the Council’s view require a columnist to be balanced. Provided the facts upon which the opinion is based are accurately stated, it is not in the Council’s view necessary to raise the contrary arguments. Mr van Beynen, as is well-known from earlier articles, believes David Bain is guilty. He refers to the evidence on which he formed this view. In doing so he refers to evidence which he claims implicated David Bain and evidence which he claims exonerates Robin Bain. That is his opinion.
It is for the reader to determine whether or not it agrees with Mr van Beynen’s opinions. He is entitled to express them provided they are based on provable facts. The Council has no evidence that they were not.
For the above reasons, the complaint is not upheld.
Press Council members considering this complaint were Barry Paterson, Tim Beaglehole, Liz Brown, Pip Bruce Ferguson, Kate Coughlan, Chris Darlow, Sandy Gill, Penny Harding, John Roughan and Stephen Stewart.

Clive Lind took no part in the consideration of this complaint.