6th March 2013
 Expressions of honest opinion must be based on true facts stated or referred
to in the material complained of, or notorious, in the sense that they are generally
known. The material identified by a defendant as the relevant facts will assist the
Court in determining both whether the imputation is an opinion and in determining
whether, under s 10(2)(b)(ii), there was reasonable cause to believe that the opinion
was not the genuine opinion of the author.
MVB doesn’t have a commonplace understanding of the Bain case. He in fact is considered by The Press and others to be an expert on the Bain case and it is often quoted that he sat through nearly the entire trial. His own editor submits that he has published over 70 articles on the Bain case and claims that in the reading of them it would be shown that many of them are ‘fair’ in David’s favour – a claim which I certainly can’t confirm and which would be irrelevant anyway to the tone of the specific article which is the subject of my complaint.
As the foregoing Judgement shows in respect of defamatory statements (and therefore any statements) argued to be opinions, that such opinions must be based on ‘true facts.’ Clearly then the test of true facts must apply to all published opinion pieces not withstanding anything, and certainly so when endorsed by both the writer and publisher of the credibility of the status of the writer as an expert.
Before dealing with specific areas of my complaint, I point out that I, as an informed reader, was aware that MVB’s opinion piece was factually wrong in several areas, and consequently it did not comply with a basis of either ‘true facts’ or indeed ‘balance.’ I anticipate that if each of the specific areas of my complaint were balanced by information known to an expert on the case, I would have no complaint with the issue of whether they were true facts or not because as a reader I would have been offered a ‘balanced’ view, material from the trial and limited research and be able to make up my own mind on the ‘opinion’ of MVB, MVB established neither measure, neither with ‘true facts’ nor with a balance to purported ‘true facts.’
When considering ‘balance’ and ‘impartiality’ it is important to look at whether the writer has established that impartiality and balance not only in the piece written but by prior conduct, and in this case prior reporting.
1/MVB attacked the credibility of the Christchurch jury in the 2009 Bain retrial. He complained about them in an ‘opinion’ piece where he accused the Jury of misconduct. Yet, he, as he has claimed sat through an entire trial and never brought that alleged behaviour to Court officials, instead deciding to write about it after the trial and clearly purport that he was the only person who witnessed the examples of his ‘complaint’ and that a Judge, Counsel, court staff simply ignored it. The ‘facts’ claimed in his attack on the Court and the Jury have never been sustained.
2/MVB was warned by the Ministry to stop harassing a Juror, a published event.
3/ MVB asked David Bain at a Perth Justice Conference why he had said he hated his father, when in fact that statement by David Bain, to police, was correctly that ‘if’ his father had killed the family he would hate him.
It is submitted that these 3 examples show that MVB has a clear bias against David Bain and his ‘opinion’ piece is misleading and not balanced with counter facts against the allegations made by MVB.
Furthermore: MVB has not declared his potential conflicts of interests in this case: that his brother is a senior police officer, thus allowing any reader to determine for them if MVB’s opinion might therefore be biased by that connection.
It is important, and in the public interest that both the ‘impartiality’ and ‘true facts’ are provided in opinion pieces. This is particularly so when the author claims some particularly authority, as MVB does through his familiarity with the case and evidence. Of course it is even more important for the subject of the opinion, a published ‘opinion’ carries with it a grave responsibility of balance otherwise is shown through not only the piece written but events such as the three mentioned above that the ‘opinion’ is personalised and subject to bias. There is no excuse for MVB to have avoided ‘true facts.’
Going to Joanna Norris’s reply, there is a difficulty in that Joanna, to her credit, does not purport to be an expert on the Bain case. Therefore it is difficult to see how she is able to judge what is ‘balanced’ and what is not. Perhaps she took some professional advice on the case, but if she did she hasn’t mentioned doing so. Checking on ‘balance’ would have required contacting some spokesperson for David Bain, or at the very least reading the Privy Council Judgement, or some other comparative measure. I imagine Joanna Norris appreciates that MVB has ‘without’ bias essentially attacked the Bain Jury, by doing so he therefore attacked the Court staff counsel and the Judge ‘for being asleep’ at the wheel as he accused some jury members of being. He later pursued a juror to the point the juror complained to the police who warned him to stay away. Additionally, as mentioned in my complaint, MVB travelled to the Perth Conference and asked a question clearly out of context and thus carrying potential incorrect implication that David killed his father because he not only hated him but admitted to police that hate. None of these actions and omissions is the actions of a person without bias.
Joanna cites Martin’s legal training, but however MVB is trained he is ‘meant’ to be offering an opinion based on ‘true’ facts, and any legal training he may have merely suggests a greater knowledge and responsibility on him to have written and behaved properly on this matter. It is with concern that I have included at the outset of this letter the view the Courts take on ‘opinion.’ I would have no objection if MVB had presented both sides of the case fairly and therefore Joanna’s opinion that Martin ‘argument on these (rebuttals to his claims) has been that, although each of them has a possible alternative explanation, the defence case relies on the coincidence of all these explanations applying at once’ would have been evidenced to the public. Without that rebutted evidence being published in the article it appears Joanna’s position is post hoc justification, and one I do not accept. For the justification to be applicable, and for the article to have been balanced, unbiased and relying on true facts those purported coincidences should have been included for the public’s benefit (along with the defence of these) to display the credibility of the opinion. They were not.
In my opinion unfortunately Joanna appears to be ‘rubber stamping’ the ‘opinion piece’ with generalities, she has been unable to make any informed comment or explain to me, as a member of the public, why MVB has essentially criticised a jury, the court and even ‘stalked’ jurors demanding information from them. That alone, in the public interest, would justifiably require an editor to ‘retire’ a reporter from a particular topic, rather than encouraging them to ‘go on’ further with the same. However, MVB, having been unable to present ‘two sides’ and it seems that Joanna when ‘adjudicating’ my complaint has only relied on MVB’s side to endorse his opinion and has entirely avoided answering my specific criticisms raised in my letter to her.
This is of concern. It suggests a negligent or at least cavalier attitude towards complaints on a potentially serious matter of principle, and I hope the Press Council will address the matter more properly.
I propose three remedies.
The first being MVB apologising to the public and David Bain for entirely leaving out of his reporting important information showing David Bain’s innocence.
A ruling from the Press Council that ‘opinion’ pieces must be based not only on ‘true facts’ but also demonstrate balance, ie by showing two sides to any argument being debated.
Thirdly, The Press to provide an opportunity for myself or some other nominee to rebut MVB opinion piece in an article of equal length.
Anything else considered by the Press Council that properly determines that ‘opinion’ pieces while not preventing rigorous analysis and vigorous expression must nevertheless provide balance and essential truth even if the writer in his or her ‘vigorous’ expression might prefer to ignore them, thus leaving any reader without the basis of ‘true facts.’
In conclusion this article and at least one earlier one by MVB sets a ‘precedent’ I’m sure that was unintended with the development of ‘opinion’ pieces, the progression of which is that an ‘article’ titled ‘opinion’ appears to raise a flag of self-immunity from normal publishing standards. Where the author can apparently say what they like and ignore that which they don’t. This approach is clearly not universal by the majority who write informed and balanced opinion pieces, but clearly unrestrained use of ‘favourable’ or ‘imagined’ evidence that misses out in part, or entirely rebuttal, becomes an opportunity to ‘vent,’ under a banner of ‘opinion’ misused as though it becomes a defence against any criticism from being ‘biased’ right through to be ‘hate speech’ or being ‘defamatory.’