SHARYN GREEN AGAINST WAIKATO TIMES

Case Number: 2534

Council Meeting: SEPTEMBER 2016

Verdict: Not Upheld

Publication: Waikato Times

Ruling Categories: Accuracy
Balance, Lack Of
Comment and Fact
Photographs

Overview

1. Sharyn Green, defence counsel for a young man convicted of rape, complained that theWaikato Times’ report of his sentencing was inaccurate, unbalanced, mixed comment and fact, and included an insensitive photograph needlessly large. The complaint was not upheld.

The Article

2. The crime had not had the usual coverage that would emerge from a trial, since the accused man pleaded guilty before the trial was due. The newspaper, therefore, used the sentencing to tell the story of what had happened. It did so on the front page of its Saturday edition, taking up most of the page with a photo of the offender and a story headed, “Rapist terrorises disabled women in own home”.

3. The story was a strongly written account of an appalling ordeal for two young women who suffered from an intellectual disability and had been living independently for just nine months. They were in bed in separate rooms the night their home was invaded. Neither had any previous sexual experience. The report was written from their point of view. It used the police summary of facts at the sentencing to report the sickening sequence of events and it included quotes from their victim impact statements.

4. It quoted the sentencing judge’s praise for their courage in going to the police despite the rapist’s threats to kill them if they did. The newspaper made their courage the theme of its story.

The Complaint

5. Sharyn Green complained the report was not accurate and balanced because it used only the Crown’s recital of facts and the victim impact statements and not her submissions for the offender, Te Anga Tipene. It failed to include “a sincere apology and complete remorse” that she had offered to the victims on Tipene’s behalf.

6. She believed the apology was accepted by the court and reflected in the sentence set. The tone of the article, Ms Green complained, would lead readers to believe this was the most serious offending of its kind, which it was not, as reflected in the sentence (11 years in prison).

7. “Comment and fact” were inaccurate. It was reported that either or both women suffered from physical disabilities. This was never expressed in court.

8. The size of the photograph was gratuitous. Mr Tipene was grief-stricken throughout the sentencing but the photograph used by the newspaper simply depicted a young man, very likely Maori or Polynesian. It may be that the seeing such a large photograph was insensitive to his victims.

9. The purpose of her complaint was to prompt the editor and reporters to reflect upon the principles of good, investigative journalism rather than sensational and inaccurate reporting. There was “a more fundamental and important” story within this tragic event. It is about binge drinking among youth and the shortage of forensic doctors in New Zealand’s justice system, which Radio NZ had reported.

The Response

10. The Editor in Chief, Jonathan MacKenzie, argued newspapers are not obliged to report a sentencing with the same balance they must report a trial. TheWaikato Times decided the angle and thrust of the story based on what it fairly believed to be of most interest to readers.

11. Having read the judge’s sentencing notes, Mr MacKenzie believed the report did Ms Green’s client a service by leaving out the most horrific details of his offences. He challenged her claim that her client’s remorse was accepted by the court, noting the judge had said to Tipene, “You have not taken any steps to show your remorse,”

12. The facts alone showed this was a serious offence of its kind. He argued it was not inaccurate to say the girls had a physical disability. They suffered from autism and a neurological disorder called dyspraxia that could affect their coordination in the way brain messages were transmitted to the body.

13. The use of a large photo was not unusual to illustrate a story on the front page. It did not convey whether a person was guilty or not, Tipene had done that with his admission of guilt. As for being Maori or Polynesian, the image would have been the same size if the offender had been any other ethnicity. It was not insensitive to the victims. The mother had thanked the newspaper for focusing on the bravery.

The Decision

14. The complaint cited the Press Council’s principles of accuracy and balance, comment and fact, and the use of photographs, but the crux of the complaint was the question of balance.

15. The alleged inaccuracies — whether the victims’ disabilities were physical as well as intellectual, and the relative seriousness of the offence — were debatable rather than inaccurate.

16. The need to distinguish comment from fact applies where readers might be confused. Readers of this report would be in no doubt they were being offered factual material, albeit with comments that arose from the facts.

17. The use of photographs in situations of grief and shock should be handled with sensitivity to those affected. The Council had no evidence the victims of this crime found the photograph insensitive. The editor said the mother appreciated the newspaper’s handling of the story.

18. Turning to the question of balance, the complainant told the Council in response to the editor’s submission she was surprised that he did not consider a sentencing should be reported with the same balance required when reporting a trial. She believed the story should have made mention of the remorse she expressed on Tipene’s behalf. She said she had read to the court part of a letter he had written to the victims that expressed sorrow and bewilderment that he could have committed such crimes, and expressed his realisation that his actions would affect both women for a very long time.

19. Newspapers are aware that both sides of a defended hearing must be covered and reports must be limited to what is said and done in court. Nothing extraneous must be written that could prejudice a fair trial. But it is the news media’s understanding that once a trial has concluded, prejudicial considerations no longer apply. It is not unusual for the report of a sentencing to focus on the crime to the exclusion of pleas in mitigation, and often a great deal of additional material, gathered independently of the court, is published at that stage.

20. The requirements of balance will sometimes include a reference to points made on behalf of a convicted person at the sentencing but that is not required in this case.

21. The complainant has supplied the Council with the judge’s sentencing notes to support her view that remorse was taken into account, but they do not support that view. Justice Duffy says (para 33), “I understand you were willing to undertake a restorative justice process with the victims. However, that process did not move forward and until Ms Green read out excerpts from your letter to the court today you have not taken any other steps to show your remorse. I do not consider an additional discount is appropriate in this case.”

22. The judge was not sufficiently convinced of the claimed remorse to include it in her sentencing calculations and there was no need for it to intrude on a report of what these women suffered. The complaint on grounds of balance therefore is also not upheld.

Press Council members considering this complaint were Sir John Hansen, Liz Brown, Chris Darlow, Peter Fa’afiu, Sandy Gill, John Roughan, Vernon Small, Mark Stevens, and Tim Watkin.