6th
March 2013
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[46]
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.
Preface:
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.’
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