media/Broadcasting... · Web viewThe photographs conveyed a fact concerning the tyre...

Investigation Report No. 3232File no. ACMA2014/582

Broadcaster Australian Broadcasting Corporation

Station ABN Sydney (ABC1)

Type of service National broadcasting service (television)

Name of program Four Corners

Date of broadcast 21 October 2013

Relevant code provisions

Standards 2.1, 2.2 and 4.1 of the ABC Code of Practice 2011 (revised 2013)

Date finalised 23 January 2015

Decision No breach of standards 2.1 and 2.2 [accuracy]

No breach of standard 4.1 [impartiality]

1

ACMA Investigation Report – Four Corners broadcast by the ABC on 21 October 2013

The complaintIn July 2014, the Australian Communications and Media Authority (the ACMA) commenced an investigation into a complaint about a Four Corners segment, While they were sleeping, broadcast on 21 October 2013 by the Australian Broadcasting Corporation (the ABC) on ABC1.

The complaint was made by the Public Affairs branch of the New South Wales Police Force, and submitted that the segment breached the following standards of the ABC Code of Practice 2011 (revised 2013) (the Code):

2.1 and 2.2 [factual accuracy]

4.1 [impartiality].

Matters not pursued The complaint to the ACMA also claimed a breach of standard 3.1 of the Code dealing with corrections and clarifications. As the complainant did not raise this issue in its initial complaint to the ABC as required under section 150 of the Broadcasting Services Act 1992, the ACMA has not pursued this aspect of the complaint in this investigation.

The complainant also raised issues in relation to the text that appeared in the introduction to the transcript of the segment that appeared on the Four Corners website.1 This text did not form part of the broadcast. As the ACMA does not have jurisdiction to consider on-line material within a complaint about broadcast content, this aspect of the complaint has not been investigated.

The programFour Corners is a current affairs program broadcast on Mondays at 8.30 pm and is described on the ABC’s website as follows:

Four Corners is Australia's premier television current affairs program.

It has been part of the national story since August 1961, exposing scandals, triggering inquiries, firing debate, confronting taboos and interpreting fads, trends and sub-cultures.2

The segment was 45 minutes long. It explored the deaths of two teenagers, ‘EW’ and ‘WD’, who were run over by a utility van driven by ‘RC’ at a party in rural New South Wales. The segment reconstructed the incident and considered the related Police investigation. It featured interviews with parents and friends of the two deceased, friends of the driver of the vehicle, the paramedic who attended the scene and a number of lawyers, including ‘DW’.

A transcript of the segment is at Attachment A.

AssessmentThe ACMA’s findings are based on submissions by the complainant and the ABC, and a copy of the broadcast provided to the ACMA.

1 http://www.abc.net.au/4corners/stories/2013/10/21/3871352.htm2 http://www.abc.net.au/4corners/about/

ACMA Investigation Report – Four Corners broadcast by the ABC on 21 October 2013 2

http://www.abc.net.au/4corners/about/

http://www.abc.net.au/4corners/stories/2013/10/21/3871352.htm

The ACMA has also taken into account, where relevant, the findings of the State Coroner’s Court of New South Wales in the inquest into the deaths of EW and WD (the Coroner’s Report). The decision of Deputy State Coroner Freund of 9 October 2013 is available at:

http://www.coroners.justice.nsw.gov.au/coroners/findings.html#2013findings

Other relevant sources have been identified where used.

In assessing content against the Code, the ACMA considers the meaning conveyed by the relevant material. This is assessed according to the understanding of an ‘ordinary reasonable’ viewer.

Australian Courts have considered an ‘ordinary, reasonable’ viewer to be:

A person of fair average intelligence, who is neither perverse, nor morbid or suspicious of mind, nor avid for scandal. That person does not live in an ivory tower, but can and does read between the lines in the light of that person’s general knowledge and experience of worldly affairs3.

The ACMA considers the natural, ordinary meaning of the language, context, tenor, tone, visual images and any inferences that may be drawn. In the case of factual material which is presented, the ACMA will also consider relevant omissions (if any).

Once the ACMA has applied this test to ascertain the meaning of the material that was broadcast, it then assesses compliance with the Code.

Issue 1: Accuracy

Relevant Code standards 2. Accuracy

2.1 Make reasonable efforts to ensure that material facts are accurate and presented in context.

2.2 Do not present factual content in a way that will materially mislead the audience. In some cases, this may require appropriate labels or other explanatory information.

The Code requires that these standards are interpreted and applied in accordance with the relevant principles, which in this case include the following:

The ABC requires that reasonable efforts must be made to ensure accuracy in all fact-based content. The ABC gauges those efforts by reference to:

• the type, subject and nature of the content;• the likely audience expectations of the content;• the likely impact of reliance by the audience on the accuracy of the content; and• the circumstances in which the content was made and presented.

The ABC accuracy standard applies to assertions of fact, not to expressions of opinion. An opinion, being a value judgement or conclusion, cannot be found to be accurate or inaccurate in the way facts can. The accuracy standard requires that opinions be conveyed accurately, in the sense that quotes should be accurate and any editing should not distort the meaning of the opinion expressed.

The efforts reasonably required to ensure accuracy will depend on the circumstances. Sources with relevant expertise may be relied on more heavily than those without. Eyewitness testimony usually carries more weight than second-hand accounts. The passage of time or the

3 Amalgamated Television Services Pty Limited v Marsden (1998) 43 NSWLR 158 at pp 164–167.


http://www.coroners.justice.nsw.gov.au/coroners/findings.html#2013findings

inaccessibility of locations or sources can affect the standard of verification reasonably required.

The ABC should make reasonable efforts, appropriate in the context, to signal to audiences gradations in accuracy, for example by querying interviewees, qualifying bald assertions, supplementing the partly right and correcting the plainly wrong.

Complainant’s submissionsThe complaint to the ABC was that the segment was not fair and impartial and that the story was sensational, misleading and ignored ‘the vast majority of evidence and findings of the seven day coronial inquest’. It also claimed that the only suggestion of Police impropriety, or the investigation being ‘conflicted’, has come from Four Corners and that ‘the most rigorous and public examination of the facts and evidence clearly found that it was an open, transparent and thorough examination’.

The complainant attached an annotated version of the transcript highlighting its accuracy concerns. These are extracted with surrounding contextual material below.

Broadcaster’s submissions Extracts from the ABC’s response to the complainant and submissions to the ACMA are at Attachment B.

FindingsThe ABC did not breach standards 2.1 and 2.2 of the Code.

ReasonsIn applying standard 2.1 of the Code, the ACMA usually adopts the following approach:

Was the particular material (the subject of the complaint) factual in character?

Did it convey a ‘material’ fact or facts in the context of the relevant broadcast?

If so, were those facts accurate?

If a material fact was not accurate (or its accuracy cannot be determined), did the ABC make reasonable efforts to ensure that the ‘material’ fact was accurate and presented in context?

In applying standard 2.2 of the Code, the ACMA usually adopts the following approach:

Was the particular material (the subject of the complaint) factual in character?

Was that factual content presented in a way that would materially (i.e. in a significant respect) mislead the audience?

The considerations the ACMA uses in assessing whether or not broadcast material is factual in character are set out at Attachment C.

Based on the complainant’s annotations of the transcript of material that was broadcast, the ACMA has considered the statements below against standards 2.1 and 2.2 of the Code. As noted above, material on the ABC website has not been investigated by the ACMA.


1. Statements concerning justice being done

The relevant content and complaint (in italics) is:

Presenter:…The parents of [EW] and [WD] believe justice has not been well served. But senior Police, the Coroner and the Director of Public Prosecutions all disagree.

No comment or opinion has ever been publically made by the Coroner, DPP or Police that justice has been well served.

The statement concerning the parents’ beliefs would not have been understood by the ordinary reasonable viewer as factual material but as viewpoint or opinion.

In the context of the segment in its entirety, the statement about the views of senior Police, the Coroner and the Director of Public Prosecutions (DPP) would have been understood as references to the Police and the Coroner’s findings that the Police investigation had not been compromised, and that the DPP had declined to prosecute RC, rather than to comments by them on their findings.

To the extent that the statements concerning the Police, the Coroner and the DPP are factual, they are verified by the Coroner’s Report, which noted that ‘the Director of Public Prosecutions, despite additional submissions from the families of both [EW] and [WD], declined to prosecute’ (page 4), and which stated that the Police’s report on the investigation ‘was not critical of the investigation’, save for some exceptions discussed below.

The relevant material facts were therefore accurate.

Accordingly, it is concluded that the ABC made reasonable efforts to ensure that the material facts were accurate and presented in context.

2. Statements concerning whether alcohol was a factor in the accident


Reporter: The [W family] don't notice the local Police arrive and breathalyse the driver. At Orange Hospital, [WD]’s mother [name] is waiting for her son.

(Semantics however ‘breath test’ is the correct terminology).

[…]

EW’s father: All we were hearing was that a swag had been run over and that it was a terrible accident. We couldn't understand why [WD] and [EW] would put a swag behind, or next to, a ute as we were hearing.

WD’s mother: I was constantly told, in ICU, no alcohol involved; it's all just a terrible accident. There was no irresponsible behaviour, there was no irresponsible driving; no alcohol; we're not going to lie to you. One detective kept saying to me over and over again, we're not going to lie to you.

The phrase: ‘not going to lie to you’ is a regular expression that particular officer uses in normal conversation.

[…]

News reporter 1: Police are investigating the incident at a party on [road] near Molong yesterday, they've ruled out alcohol as a factor. The 19 year olds were with a group of 30 others. Police say it's a tragic accident.

News reporter 2: The 17 year old driver of the utility is cooperating with Police.


Reporter: The following day, the local Police in Orange went public. Explaining what happened, one statement stood out.

Police spokesman: Police are making a number of investigations, we don't believe alcohol is a factor in this accident.

Due to the negative breath test it is a reasonable inference that [the Policeman in question] drew when he conducted a stand up with the media that he didn’t believe alcohol to be a factor. Note that he used the word ‘believe’, and that at the time he had no reason to doubt the accuracy of the alcolizer.

Reporter: When Inspector [name] told the nation that this was nothing more than a tragic accident at a party of about 30 campers, and that alcohol wasn't a factor, the community trusted that this was the case. But in reality, the truth was very different.

Note the above. The reporter has changed the officer’s statement that he believed alcohol not to be a factor to that it was not a factor.

[…]

Reporter: The Police didn't ask [RC] if he'd been drinking at the party. And that morning [RC] blew zero. According to the breathalyser he didn't have a drop of alcohol in his blood. But the reading was false. We now know the Police were using a broken breathalyser - this document shows it wasn't detecting any alcohol at all. It was sent off for repair one week after the incident.

WD’s mother: The alcolizer, the machine that was used was faulty and had to be sent away for repair and recalibration, that it wasn't just a little bit out.

In the context of the segment in its entirety, the ordinary reasonable viewer would have understood that:

the Police breath tested the driver at the scene resulting in a nil reading for alcohol levels

the reason for this result was that the alcolizer was faulty

the Police formed the view that alcohol was not involved in the incident (at least initially)

the parents and public were advised by the Police that alcohol was not a factor.

This was factual material; it was specific, unequivocal and capable of independent verification.

The facts are verified by the Coroner’s Report (pages 3-4 and 7).

The issues mentioned in the complaint, namely whether or not the correct terminology for a breath test was used, the assertion that the officer’s statement to WD’s mother that he ‘would not lie to her’ is a term he uses in conversation, and that the Police stated they ‘believed’ alcohol not to be a factor, rather than it was not a factor, were peripheral or incidental to the above factual assertions. To the extent that these were factual assertions, they were not material facts and would not have materially misled the audience.

The main assertions were that the Police advised the parents and the public that alcohol was not a factor. This point is not in dispute, nor is the fact that the Police formed their initial view because the alcolizer was faulty and it gave a false negative reading.




3. The views of JB


JB: Basically all I was told was he wanted to leave early because he didn't want to get caught by the Police, and it was that, that either because he was A, drink driving or B, underage. He didn't want to get caught driving on his L’s, so he wanted to get home before the Police were patrolling the roads.

It should be noted that [JB] was not present at the party and that from an evidentiary point of view this is all hearsay. This information is what he has been told with no source identified.

The hearsay rule does not apply in broadcasting.

This comment would have been interpreted by the ordinary, reasonable viewer as JB’s subjective third person account. The fact that JB opened his comments with the words ‘basically all I was told was…’ makes this point clear.

There is no allegation that JB was misquoted or his views distorted.

The Coroner’s Report states that it was uncontroversial that, at the time of the incident, RC was the holder of a learner’s licence, was unaccompanied when driving the vehicle and he had been drinking on the night of the party to some unknown extent (page 3).

To the extent that JB’s account is separately asserted or reinforced by the reporter so that it could be considered a separate factual assertion, the relevant material facts were accurate.


4. The colour of the tyre marks on the swag


Reporter: Police photos show the swag was covered in thick, black tyre marks.

The photograph shown on the program shows darker marks than the photo contained in the Police brief. One must question whether the photograph has been altered.

The photographs conveyed a fact concerning the tyre marks. It was specific, unequivocal and capable of independent verification. The factual content was a material fact in the context of the broadcast.

There is nothing before the ACMA to determine the accuracy of the content, so it has assessed whether the ABC made reasonable efforts to ensure that the material fact was accurate and presented in context.

The ABC has submitted that:

Four Corners has confirmed this was an official Police photograph which was not manipulated or altered in any way. The executive producer has explained that all Four Corners programs are graded, or colour corrected, which lifts the contrast of every shot in the broadcast.

The ACMA accepts the photo was sourced from the Police, and that despite the alleged difference in the appearance of the photo when broadcast, the photo was not altered for false effect. Therefore, the ABC made reasonable efforts to ensure that material facts were accurate and presented in context.


5. Whether or not the scene was a road related area


DW QC: I considered whether or not a question of driving in a manner dangerous to the public, provided an appropriate investigation was conducted, or failure to assist. But it appeared to me that none of these matters were the subject of the level of inquiry that I would expect from seasoned Police officers where you have two young people dead. It can't get much worse than that, and they are killed by a motor car driven by somebody who shouldn't be driving.

For the offence of driving in a manner dangerous to the public the offence must occur on a road or road related area. The offence of ‘failing to assist’ also requires that the incident occur on a ‘road or road related area’. The issue of ‘road or road related area’ was heavily considered in the review of the investigation. Case law was cited and the relevant case law attached to the statement of [the Superintendent]. Police expressed their opinion on the issue and commented that others may disagree with that view, however ultimately it was a matter for the court.

Reporter: At 6am, the first Police officers from Orange arrived on the scene. They knew there was a possible double fatality. Problem was, it had happened on private property. Under NSW traffic legislation, driving offences can only be pursued by Police if they occur on a road related area or a public road.

DW QC: It does seem somewhat paradoxical that the presence of a boundary fence can make such a difference in outcome. It's difficult to see why it should be less offensive to cause death on a private property than it is on the other side of the fence on the road.

Reporter: In NSW, it's up to Police on the scene to decide whether or not it's a road related area.

This is true in the first instance but ultimately it is a question of fact to be determined on each occasion by the court.

W family lawyer: The objective factors are it was…a farm but it, the area that was being used at the time was being used as a carpark. And the test is whether the carpark was open to or being used by the public.

The issue was highlighted in the statement of [the Superintendent] and [GG]. A copy of the case law R v Abrahams was cited, in particular the salient sections and a copy of the whole judgement was annexed to the statement of [the Superintendent].

Reporter: The Police counted up to 60 cars and the gates were open. They quickly decided the location resembled a public car park, and treated it as a road related area.

For Police to exercise breath test powers they require reasonable cause to believe that the person was the driver of a motor vehicle upon a road.

This meant they could pursue driving offences and legally breath-test the driver. By now, nearly two hours have passed since [RC] ran over [WD] and [EW].

[…]

Reporter: He was well over the legal limit for a licenced driver, let alone the limit of zero for an L-plater.

W family lawyer: As soon as that occurs, it's a standard drink driving charge. The charges could have been as simple as neg drive [negligent driving]. It could have been drink driving.


To prefer the charges as outlined by [the W family lawyer] the incident needs to occur on a road or road related area. Again this was canvassed during final submissions.

Reporter: And none of these were pursued?

W family lawyer: No, no, not even the simplest of charges.

They couldn’t be due to the issue of road and road related area. The coroner commented that the view of the Police that it was a road related area ‘waned’.

Paragraphs 88 and 104 of [the Superintendent]’s statement make reference to the case law R v Abrahams [1984] 1 NSWLR 491. A full copy of the judgement was annexed to the statement and supplied to the court. [The Superintendent] outlined at paragraph 104:

‘In respect to the issue of the incident occurring on a ‘road related area’ the investigator came to the conclusion that it was not a road related area. I agree with that determination in this circumstance. Although others may differ in that view. I do not believe it was open to the public without discrimination nor that the invitation to the selected class of the public was significant enough to make it open to the public however the nature of the invitation could have made it so’.

This is reflective of the rationale of the decision in Abrahams case.

Note that the promotion on the 4 Corners website outlines ‘it was meant to be a day of fun. An Australia Day paddock party, a reunion for a group of 19-year-old school friends before they went their separate ways, to university and work’.

D family lawyer: At the inquest, [GG] said that he deliberately made a decision not to lay them. This is surprising but, umm, it's what he said he did.

This comment takes the evidence out of context. This evidence related only to the possible driving offences of ‘learner unaccompanied’ that occurred well prior to the incident. Again this was canvassed in closing comment by legal counsel at the inquest. The comment does not relate to any offence in respect to the deaths…

Reporter: Inexplicably and without the consultation that Police require, [GG] made another surprising decision. He overturned his colleagues’ initial judgement that the incident occurred on a road related area. According to [GG], it had now happened on a private property.

At paragraph 93 of [GG]’s statement the officer outlines the two schools of thought in respect to whether the area was a road related area. He does not reach a conclusion in his statement. He did not overturn any decision in respect to this issue although he did have an opinion which was given in evidence.

Paragraph 93 of [GG]’s statement reads:

Section 24A of the division reads ‘in this division, “accident” means an accident on a road or road related area involving a motor vehicle or other vehicle or a horse’. There is two opinions of whether this incident occurred on a road related area. The first opinion is that the location of this incident does not appear to be within the scope of a ‘road’ or ‘road related area’ and consequently that Division 4A of the Road Transport (Safety and Traffic Management) Act 1999 may have been incorrectly utilised following this incident. The second opinion is that the occupants of ‘Ridgeview’ had opened up the property to the general public and that the area in question was being used as a car park. This line of thought infers the incident location was temporarily a road related area and hence Division 4A is applicable.

[…]

Presenter: …The Coroner also noted that the distinction in NSW between road related offences and private property offences should be reviewed. No such distinction exists in Queensland, Victoria or South Australia.

The ordinary reasonable viewer would have understood the factual assertions to be:

in New South Wales, an incident must occur on a road related area or a public road before a person can be subject to a breath test or traffic offences pursued


the Police make their decision about that issue based on their assessment at the scene of an accident

in this case, as there were at least 60 cars parked at the scene, the initial determination by the Police was that the scene was a road related area

this assessment enabled the Police to pursue driving offences and breath test the driver

the assessment was later revised and it was decided that the incident occurred on private property

the latter decision was made inexplicably and without the required consultation

The facts concerning the initial decision that the scene was a road related area and that this decision was later reversed are not disputed by the complainant and are verified in the Coroner’s Report (pages 9-10). The Coroner noted that ‘without the power to test somebody driving a motor vehicle on a private property for the presence of alcohol, it follows that charges are unlikely to arise’ (page 12).

In respect of the reporter’s comment that the decision to ‘overturn’ the initial determination that the scene was a road related area was made ‘inexplicably and without the consultation the Police require’, the complainant noted that ‘there are two schools of thought’ and the decision was not ‘overturned’.

The ABC has submitted that:

Four Corners has explained that its reference to the initial assessment by attending officers, that it was a road related area, came from [a policeman’s] witness statement, where he describes the assessment made by [another policeman] and the subsequent decision to breath and urine test. Further confirmation that the initial assessment was that it was a road related area, comes from the testimony provided to the coronial inquest by [the policeman]: "I'd say that the paddock was open to be used by the public for the purpose of parking motor vehicles so I would deem it myself as a road related area."

It is an established fact that, initially, police saw the incident as occurring on a road related area. This view was subsequently changed or overturned by [GG]. Four Corners has explained: "NSW Police also failed to respond to our specific questions sent prior to broadcast: 'When did [GG] overturn Inspector [name’s] ruling and decide it wasn't a road related area? On what material was he relying on? Who did he consult before making this decision? Please provide specific date of decision and details of what consultation (as was required) and advice he sought and received'."

We understand there is still no answer to this question, including in Detective [GG’s] statement. Furthermore, the program notes that Superintendent [name], in his review, clearly states that Detective [GG] did come to a conclusion on the issue of a road related area: '104. In respect to the issue of the incident occurring on a 'road related area' the investigator came to the conclusion that it was not a road related area.'

In the context of the comments made by the W family lawyer on whether charges could be laid (see point 10 below) the ABC also submitted that:

We believe it is clear that [the W family lawyer] is responding to the established evidence that [RC] was over the legal alcohol limit, as prescribed for a Learner driver. Critically, at the time [RC] was breath tested, police on the scene were operating on the basis of an initial ruling that it was a road related area. Therefore, the driving charges noted by [the W family lawyer] were open to police.

Four Corners has noted the comments made by NSW Police Director Investigations and Field Services [name] in his letter dated 26 May 2011: "I agree with Superintendent [name] that the investigator has failed to follow the Police Handbook Guidelines specifically 'if an investigator believes that it is inappropriate to instigate proceedings against a driver for an indictable


offence but believes summary matters should be instigated following a fatal or serious motor vehicle accident, then there is a requirement to forward a brief of evidence to the Police Prosecutions Command for advice.' From the material before me, I can see no evidence that the investigators have sought legal advice in regards to this investigation."

The ACMA has no material before it to determine whether the decision to reverse the initial assessment that the incident occurred on a road related area was, in fact, inexplicable or conducted without consultation. Accordingly, the ACMA must consider whether the ABC made reasonable efforts to ensure that material facts were accurate and presented in context.

It is clear from the complainant and the ABC’s submissions that the decision as to whether the scene was a road related area is a matter of judgement, there are two ‘schools of thought’ on the issue, and the assessment will depend on the facts and circumstances of an incident. From the complainant’s submissions it is also apparent that in this case, the initial decision was open but the decision to change the initial determination was made on review and supported by case law. However, the ABC’s questions to the Police concerning the basis for that change, and whether consultation as apparently required under the Police Handbook Guidelines was undertaken, were not answered and the reasoning was not explained for the purposes of the broadcast.

In all these circumstances, the ACMA considers that:

the material facts concerning the initial assessment that the scene was a road related area, and that this assessment was later changed, were factually accurate; and

the ABC made reasonable efforts to ensure that material facts about the reasons for the change in assessment were accurate.

6. Questions asked of the driver at the scene


Reporter: …This meant they could pursue driving offences and legally breath-test the driver. By now, nearly two hours have passed since [RC] ran over [WD] and [EW].

Actor (Police officer): Have you had a drink in the last 15 minutes?

Reporter: Did Police ask, at that moment, did they ask the driver [RC]: ‘Have you been drinking?’

D family lawyer: I think the question that they asked him from memory is, ‘have you had a drink in the last 15 minutes’, rather than ‘have you been drinking’.

The Police ask this question to determine the possibility of mouth alcohol. Any alcohol consumed within 15 minutes of a breath test will give a false high reading. It is an important and necessary question. Any question in relation to a ‘drinking history’ requires a caution to be administered and if a juvenile in the presence of an adult as previously outlined.

Reporter: We're talking about a potential double fatality here at the moment─

D family lawyer: Correct.

Reporter: ─Police arrive.


Reporter: And the only question they ask of the driver─

D family lawyer: ─is: ‘Have you been drinking in the last 15 minutes’.

Reporter: 15 minutes.


D family lawyer: And umm that, that's correct.

This is not correct. Paragraph 10 of [Policeman’s] statement outlines the conversation. They ask for his details, if his parents were present, if there was an adult present who could act as a support person – this is answered in the negative, he admits to being the driver, that he does not have a licence and has not consumed alcohol in the last 15 minutes. He is asked ‘What happened’ he provided the version that ‘I just ran over them. I didn’t see them. Their swags were the same colour as the grass’. The Police identify he is very upset. [The Policeman] speaks to others and a short time later informs [RC] that he is under arrest for the purpose of a blood and urine test. Any further conversation had with this person would have been inadmissible due to no caution and the lack of presence of an adult of [RC’s] choosing.

The ABC’s submission is that the D family’s lawyer is responding to specific questioning from the reporter regarding what Police on the scene asked the driver about his alcohol consumption. The ABC submitted that this was clear from the context in which the questions and answers were presented in the broadcast. Further, at the scene the Police were acting on the initial determination that the scene was a road related area, and proceeded to breath test the driver. Based on briefs of evidence, statements and transcripts submitted during the Coronial Inquest, the ABC submitted the driver was not asked whether he had been drinking at the party.

The content was preceded by the reconstruction of the scene of the accident, the parents’ accounts of the advice that alcohol had not been a factor, and interviews with other party-goers and WD’s mother, who described the scene of the Australia Day party as having been attended by 100 guests aged between 15 and 20 years old who were expected to camp on the property for the night because they would be over legal limits of alcohol for drinking and driving. This established a context in which, despite advice to WD’s mother, it was likely that RC had been drinking in the hours before the accident and that alcohol was likely to have been a factor in the accident. The facts that RC had been drinking on the night of the party to some unknown extent was accepted as an uncontroversial fact in the Coroner’s Report (page 3).

The ACMA considers that the statement ‘the only question they ask the driver’ could have been interpreted as meaning that he was asked only that single question at the scene, rather than as meaning it was the only question asked about his alcohol consumption. However as it is preceded by statements of the reporter and family lawyer that he was not asked ‘have you been drinking’, it was more likely from the surrounding language and the previous scenes that the question would have been understood as being the only question asked about his consumption of alcohol from the time of his arrival at the party.

In the context of the segment in its entirety (including the matters at point 5 above), the ordinary reasonable viewer would have understood the factual assertions to be:

at the scene, Police considered the property to be a road related area

it was therefore open to the Police at that time to ask questions of the driver in order to obtain evidence of drink driving offences

the driver was asked only about his alcohol consumption in the previous 15 minutes

he was not asked about his consumption of alcohol in the hours preceding the accident.


This was factual material; it was specific, unequivocal and capable of independent verification.

The ACMA acknowledges the complainant’s submission that as the driver was a juvenile he could not be interviewed in detail without the presence of a guardian or support person. However, that submission does not explain why RC was not asked further questions about his alcohol consumption in the presence of a guardian or support person. Regardless, the complainant’s submission does not dispute the key assertion that RC was not asked at the scene about his alcohol consumption, other than whether he had consumed alcohol in the previous 15 minutes.

The ACMA also notes that the officers apparently asked RC some brief questions at the scene, in addition to the question about whether he had consumed alcohol in the previous 15 minutes. However, the ACMA considers that, in context, it was sufficiently clear that the reference to that being the ‘only’ question asked at the scene actually conveys that the question was the ‘only’ question asked about alcohol consumption at that time. That is an accurate factual assertion, and not disputed.

The factual assertions concerning the questions asked at the scene about RC’s alcohol consumption were therefore factually accurate.


7. Statements concerning the driver being the son of a Police officer


Presenter: Welcome to Four Corners. Tonight’s story …about rite of passage in the bush; about a paddock party on Australia Day three years ago that went horribly awry. Leaving two young adults dead, after being run over in their sleeping bag by a utility. The driver was the son of a Policeman. The parents of [EW] and [WD] believe justice has not been well served. But senior Police, the Coroner and the Director of Public Prosecutions all disagree…

[…]

Reporter: [Police officer 1] and [Police officer 2] arrived on the scene. They were told to take the driver to hospital for a blood and urine test. They recognised the name [RC]. [RC] was the son of one of their own.

[…]

D family lawyer: [Police officer 2] was the officer on duty. [Police officer 2] recognised him, asked him if his father was [name]. And when he was then, [Police officer 2] gave him the phone, said: ‘Look you better ring your father’.

Reporter: [RC]'s father [name], a senior highway patrol officer at Orange Police for three years - a close colleague and friend of [Police officer 1 and Police officer 2] - was stationed six hours away, on the NSW mid north coast.

The NSW Police Force Code of Practice for Crime states: ‘When you arrest a child take reasonable steps to tell the parents or guardian immediately’. A copy of this section of the Code of Practice for Crime was referenced in the statement of [the Superintendent] and a copy annexed to his statement.

Inside the Police car, using [Police officer 2]’s own mobile phone, 17 year old [RC] had a private conversation with his dad.

Reporter: What was discussed in that conversation?


D family lawyer: Well, umm, I don't know. The─ we were never told what was discussed.

The program by absence of reference to the above ‘Code of practice for Crime’ infers impropriety, when in fact the officers were discharging their obligations. In accordance with the code, officers are also required to consider the child’s welfare. A copy of this section of the code was references [sic] in the statement of [the Superintendent] and copy annexed to the statement.

W family lawyer: There is always a need for transparency and clarity, and what they should have done was demonstrate that transparency and clarity by referring the investigation to somebody who had nothing to do with the Police officer whose son was involved in this accident, or the officers who knew that Police officer.

[…]

Reporter: The next day, the day after his daughter died, a grieving [EW’s father] was called in to Orange Police station.

Police specifically advised the parents of the deceased that [RC] was the son of a Police officer who used to be stationed at Orange and to allay concerns. Police were of the view that they should be told by Police and not hear it from [a] different source.

[…]

EW’s father: They told me that the driver of the car was a son of a Policeman, who had been formerly stationed at Orange Police Station.

Reporter: Was that a conflict of interest to you?

EW’s father: They declared it as a conflict of interest, they, they used that terminology, and so I was led to be, led to understand that there would be a, a very different way that the investigation would be carried out, that it would be carried out appropriately.

[…]

Reporter: Inside court, [DG] gave evidence. He denied there was ever a conflict of interest. He didn't work with [RC]’s father…

[…]

Presenter: The Coroner has since reported that she was satisfied that Police investigations were thorough and adequate, and not compromised by the fact that [RC] is the son of a Police officer who was formerly stationed at Orange…

The complainant also submitted that the fact that RC was the son of a Police officer formerly stationed at Orange did not complicate matters as suggested in the segment and that the issue had no bearing on the investigation.

The ABC submitted that this was newsworthy and a matter of public interest, and was presented in context. EW’s father stated in the segment that he had been advised of the conflict of interest and that the investigation would be carried out appropriately, and the Coroner noted detailed submissions from the family that revolved around the perception of a conflict of interest in the investigation of the deaths of EW and WD. In response to the complainant’s statement ‘that the only suggestion of the Police investigation into the incident being “conflicted” came from Four Corners’, the ABC submitted that it ‘understands this


concern is in fact held by the families of the deceased persons, their lawyers and the respected QC, [DW] who independently examined the investigation’.

The ordinary reasonable viewer would have understood the relevant factual assertions to be that:

RC was the son of a Police officer formerly stationed at Orange

the families of the deceased were informed of this fact and were assured that the Police investigation would be conducted properly

they did not believe this occurred

the issue of a potential conflict of interest was considered by the Coroner, who was satisfied that the Police investigation was not compromised.

This was factual material; the assertions were specific, unequivocal and capable of independent verification, and each was a material fact in the context of the broadcast.

It is not disputed that RC was the son of a Police officer. The Coroner’s Report finds this is an uncontroversial fact and also verifies that the central theme of the submissions of the families at the Inquest revolved around the perception of a conflict of interest in relation to the Police investigation. After considering the relevant issues, the Coroner’s Report states ‘I am satisfied on the balance of probabilities that the investigation in the circumstances was thorough and adequate and was not compromised by the fact that RC is the son of a Police officer who was formerly stationed at Orange’ (page 19 - emphasis included in report).

It was made clear in the segment that the parents of EW and WD believed that the fact that the driver of the vehicle was the son of a Police officer stationed at Orange resulted in the investigation into the deaths of their children being compromised, and justice not having being done. This is established in the introduction with the presenter’s words:

Leaving two young adults dead, after being run over in their sleeping bag by a utility. The driver was the son of a Policeman. The parents of [EW] and [WD] believe justice has not been well served.

Through the juxtaposition in the segment of references to RC being the son of a police officer with interviews with the parents and their representatives, their belief that the investigation had been compromised by a conflict of interest was reinforced by the presenter and the reporter.

References included:

WD’s mother’s statements about the use of a faulty alcolizer at the scene

the D family’s lawyer’s statements that he did not know what was discussed in RC’s conversation with his father at the scene

the W family lawyer’s statement about the need for clarity and to refer the investigation on to somebody who had nothing to do with [RC’s father]

EW’s father’s statement that he was led to believe the investigation would be carried out appropriately and his later suggestion that some facts were missing from the inquest

EW’s mother’s statement that they need justice and truth for their daughter.


This material preceded the Presenter’s conclusion in which he reported on the Coroner’s finding that the Police investigation had not been compromised.

However, any perceived conflict of interest was not presented as incontrovertible fact. Although this was a strong theme in the segment, in the context of the segment in its entirety, the ordinary reasonable viewer would have understood that the parents’ views were of an inherently judgmental, subjective or contestable nature. Further, in the closing statement by the Presenter, which directly reiterated the Coroner’s finding that the investigation was not compromised, it was made clear that this view had not been accepted by the Coroner and by Police on review of the case. These various opinions were not factual content covered by the obligations set out at Standard 2.1 of the Code.

In the context of the segment in its entirety, it was also made clear that the outcomes of the Police investigation at the scene, and on review, turned on the fact that the scene was declared private property which meant that road related offences were not available.



8. Statements concerning the thoroughness of the Police investigation


Reporter: That night, the unlicenced driver had repeatedly and illegally driven his ute on the highway. He'd also been drinking. He then ran over two people - ending in a double fatality. For [RC], consequences appeared inevitable. [DW] QC has examined the Police investigation of the case.


For the offence of driving in a manner dangerous to the public the offence must occur on a road or road related area. The offence of ‘failing to assist’ also requires that the incident occur on a ‘road or road related area’. The issue of ‘road or road related area’ was heavily considered in the review of the investigation. Case law was cited and the relevant case law attached to the statement of [the Superintendent]. Police expressed their opinion on the issue and commented that others may disagree with that view, however ultimately it was a matter for the court.

[…]

Reporter: At 7:00am, as [Police officer 1 and Police officer 2] left [property name] with [RC], the detective in charge, [GG], arrived and began to document the area.

His photos show the ground is scattered with empty rum cans and beer bottles. [WD] and [EW]'s swag is up close next to the railing of the sheep pen, well away from the rows of parked cars. Next to it, [WD’s] Australia Day sombrero hat. [EW]'s rubber thongs. The swag wasn't forensically examined.

For what purpose would the swag be forensically examined? Examinations are conducted for specific purposes. Identity of the deceased and the vehicle involved were not in dispute.

[GG] took only three photos of the car. Two of them show a white esky sitting in the tray. But [GG] didn't venture any closer, choosing not to look inside.


[GG] produced 43 photographs in the brief of evidence. The Forensic Services Sergeant produced an additional 20. 63 in total being produced.

Instead of examining the car and its contents, according to his handwritten notes, [GG] took a handful of witness names and phone numbers before leaving the scene. Over the coming weeks, Police took statements from only a quarter of the partygoers.

Not every person who attended the party could assist investigators. Only a limited number of those attending the party had relevant evidence to offer, although the vast majority of attendees were spoken to by Police. This is outlined at paragraph 31 of [GG]’s statement dated 29 March 2011.

Beyond that, there was no forensic investigation.

The vehicle was seized for mechanical examination. A crime scene sketch was prepared in addition to the photographs taken. No post mortem was performed however this decision was not made by the Police.

W family lawyer: If it had happened on a highway with two people dead and it was on the front page of every paper and on the national news, there would have been Police investigators crawling all over it, there would have been photographs, measurements, reconstructions and they would have a─ at least some version of events from the driver.

A version was obtained from the driver. Albeit brief this discharged any obligation [RC] may have had if the area concerned was a road or road related area…

Reporter: But they didn't. Almost three hours after the incident, a blood and urine sample was taken.

Under the traffic legislation Police have 4 hours in which to obtain the blood and urine sample. A version was obtained from the driver. Albeit brief this discharged any obligation [RC] may have had if the area concerned was in fact a road or road related area.

The detective in charge, [GG], then sent [RC] home.

Once [RC] complied with the direction to supply a sample of blood and urine Police had no further power to detain him. Police have no power to arrest for the purpose of questioning. This issue was addressed in closing comments by the relevant lawyers at the inquest. The timing of questioning a person of interest will vary from case to case. This is an operational/investigative decision and a matter that was canvassed during the inquest.

DW QC: It makes one wonder whether or not that rigorous, independent assessment that ought to have been applied to this case was in fact brought to bear. And simply put, I don't think it was. The material ought to have been put to the young driver. He was asked nothing about the circumstances. I don't think he was asked a question about the circumstances of the accident. And to me, that seems to be extraordinary.

The ultimate independent assessment is the Coroner and as explained by the Coroner [RC] had a right of silence which was exercised. Limited questions that did not infringe the Evidence Act or the rights of [RC] were put to him. See s.13 of the Children (Criminal Proceedings) Act [this provision was then cited]

[…]

Reporter: [WD’s mother] didn't believe what she was being told. She logged onto Facebook, looking for images of the night.

WD’s mother: I found a photo of [RC] with alcohol in his hand.

The evidentiary value? Was the photo taken from that night? A blood sample was obtained with a specific reading hence it was not in dispute that [RC] consumed alcohol after the blood sample was analysed.

Reporter: How easy was it to find that photograph?

WD’s mother: Very easy.

Reporter: Did the Police find that photograph?


WD’s mother: No. I don't believe so.

[…]

It seems that [RC] won't be charged with anything.

[…]WD’s mother: I wrote to the state coroner requesting an inquest, and I think I stated my concerns about the veracity of the Police investigation.

Reporter: An Inquest was called in May 2011. The Coroner's office requested a review of the Police investigation, to determine how thorough it was. The review was done by Superintendent [name] - the Commander in charge of Orange Police and [Police officer 3]’s boss. His review overwhelmingly supports [GG]’s investigation, except for his failure to consider charging [RC] with any driving offences under traffic laws. Superintendent [name] declared it was ‘an honest oversight’, because [GG] was focussed on the deaths of [WD] and [EW].

Superintendent [name] did not ‘declare it was an honest oversight’. The coroner stated that [the Superintendent] surmised that it was an oversight.

DW QC: To suggest that the failure of the Police to do anything was more a matter of oversight, which was what [the superintendent] concluded in his investigation, seemed to be simplistic in the extreme.

Paragraph 102 of the statement of [the Superintendent] makes reference to the ‘oversight’ and needs to be read in the context of paragraph 101. Note that the reporter was given a copy of this statement by counsel assisting.

Paragraph 101 reads:

I have identified that [RC] may have committed some traffic offences prior to this incident occurring. This was in the form of driving to and from the location with his girlfriend and later along [street name] during the party without a fully licensed driver accompanying him. There is also the issue of [RC], a juvenile, obtaining alcohol. This may or may not have involved breaches of the licensing laws.


It would appear that the possibility that these offences were committed were not further examined and have been an oversight with the focus of the investigation being the deaths of [WD and EW]. I believe this was an honest oversight and nothing sinister is inferred from it.

The comment in [the Superintendent]’s statement has been represented out of context. [The Superintendent] was referring to the ‘learner unaccompanied’ offences identified in respect to [RC] driving to and from the location with his girlfriend and later along [the street name] without a fully-licensed driver. The comment was not made in respect to any possible offences related to the deaths of the victims. This was surmised by the officers’ reading of the brief of evidence.

[…]Reporter: At the inquest in 2011, the breakthrough came on the fifth day, when the Coroner suspended the hearings, stating there was enough evidence to convince a jury the driver [RC] had committed a serious offence. It was referred to the Office of the Director of Public Prosecutions.

[…]

EW’s father: After a long period of time, in March the following year, we get a letter from the Office of the DPP.

Reporter: What did that letter say?

EW’s father: Very little other than on the evidence available that the charges won't be laid. Four, four lines.


Reporter: In the letter, the Office of the DPP decided no charge would be laid against [RC], based ‘on the evidence presently available. [WD]'s father [name] asked the deputy Director of the DPP, [name], why they weren't proceeding.

WD’s father: [The deputy DPP] said he couldn't proceed with the prosecution because the evidence was so poorly collated and you need a, much, much, much more accuracy to, to take something to court.

WD’s mother: When I eventually got to see [the deputy DPP], he said to me: ‘I was unaware that he was the son of a Police officer until you sat here and told me today’. So it appeared to me even though the DPP had made a decision, that there wasn't enough evidence to run this, this case, it appeared that nobody's actually read the entire brief of evidence.

Reporter: And whose responsibility was it to gather that evidence?

EW’s father: The Police.

Reporter: And had they not?

EW’s father: Not in my mind.

Reporter: Today [WD’s mother] and her family are back at Orange local court. The inquest into the death of her son [WD] and his friend [EW] has resumed. Many of the players have returned.

EW’s father: We'll get to more of the facts, and there's some facts which have been missing and it's time for those to get aired.

Reporter: Inside court, [GG] gave evidence. He denied there was ever a conflict of interest. He didn't work with [RC]’s father. [GG] also said he did attempt to interview [RC]. He phoned his home twice.

[GG] spoke to [RC]’s mother and she informed him that on legal advice any approach by the Police should be directed to his lawyer. His lawyer was spoken to the same day which was in February 2010. In March 2010 the lawyer for [RC] was again spoken to. A third approach was then made to the lawyer’s office to speak with [RC]. A further approach was made to [RC’s] mother and on legal advice Police were informed that [RC] would not speak with Police. [RC] exercised his right of silence as provided by the Evidence Act s.139.

As the day wore on, there was one person the families wanted to hear from most. The driver, [RC]. But he maintained his silence; he didn't give evidence. [RC], then 17, now 21, rejected all our requests for an interview. His lawyer told us that [RC] could still be charged with manslaughter.

DW QC: You'd have to say that he's very fortunate. [RC] has had the benefit of a number of what I would regard as systemic investigative failures in this case.

Reporter: The Police also rejected our repeated requests for an interview.

[GG], [name] from Four Corners how are you? We would just like to ask you some questions now the inquest is over?

This has been edited. It was explained to the reporter that the coroner was yet to hand down her findings so Police would not be making any comment. The inquest was not over.

[…]

Presenter: The Coroner has since reported that she was satisfied that Police investigation was thorough and adequate, and not compromised by the fact that [RC] is the son of a Police officer who was formerly stationed at Orange. Four Corners has


put detailed questions to the NSW Police and the DPP, their responses can be found on our website.

Four Corners did not put all of the responses provided by the Police on their website.

The ABC’s submissions on these matters are set out at Attachment B.

In the context of the segment in its entirety (including the matters set out at points 2, 5 and 6 above) the ordinary reasonable viewer would have understood the factual assertions in the above material to be:

RC had obtained alcohol and driven to the party unaccompanied which could have given rise to charges

at the scene, RC was not formally interviewed to obtain a full version of events from him

at the scene, the Police believed the incident had occurred on a road related area, enabling him to be charged with driving offences

at the scene, enquiries were not made and procedures were not followed in order to obtain evidence sufficient to charge the driver with indictable offences or driving offences under traffic laws

RC was not questioned about his consumption of alcohol during the night of the party and enquiries and observations were not made that would have confirmed that he had been drinking, despite the presence of an esky in the back of his ute which might, given the circumstances, have been found to contain alcohol if it had been opened by Police, and internet photos showing RC consuming alcohol

3 hours later a blood and alcohol sample was taken at the hospital, giving a positive result but RC was not detained for questioning and was sent home

RC subsequently declined to be interviewed by the Police or to give evidence at the inquest because he was advised that he could still be charged with manslaughter

in view of the lack of evidence the DPP decided that no charges would be laid.

This was factual material; the assertions were specific, unequivocal and capable of independent verification. The facts were also material facts in the context of the broadcast.

The ABC submissions show that it relied on evidence and materials presented at the Inquest and information from the NSW Police’s Director of Investigations and Field Services. Some of the ABC’s enquiries to the Police were not answered.

The Coroner’s report verifies that:

RC had obtained alcohol and driven to the party unaccompanied, which could have given rise to charges

he had been drinking at the scene ‘to some unknown extent’

he was breath tested at the scene and the alcolizer registered zero

at the time of the incident RC was arrested and conveyed to a hospital for blood and urine testing giving a level 0.039g/100mL of alcohol at 7.40 am on the morning of the accident


RC did not provide a statement to investigating Police as to his version of what occurred and was not charged with any offences under the Road Transport legislation

the Coroner suspended the Inquest having formed the view that the evidence she had heard was capable of satisfying a jury beyond reasonable doubt that the driver was guilty of the indictable offence of ‘drive in a manner dangerous causing death’

the DPP, despite additional submissions from the families of EW and WD, declined to prosecute.

On this basis, the above material facts were accurately reported.


The reporter stated that the unlicensed driver had ‘illegally’ driven his car on the highway and had been drinking, and the segment featured DW QC describing his examination of the police investigation of the case, in which he states that questions of driving in a manner dangerous to the public or failure to assist were not ‘the subject of the level or inquiry that I would expect from seasoned police officers where you have two young people dead’. This is followed by the discussion of whether the accident occurred on a road related area (see point 5 above) which indicates that at the scene the Police considered it was open to them to lay charges.

The relevant content also included further statements by parties including the parents, their lawyers and DW QC that were critical of the Police investigation. For example:

Reporter: And whose responsibility was it to gather that evidence?’EW’s father: The PoliceReporter: And had they not?EW’s father: Not in my mind.

DW QC: It makes one wonder whether or not that rigorous independent assessment that ought to have been applied to this case, was in fact brought to bear, and simply put I don't think it was.

Reporter: What is this sort of investigation?DW QC: Well, it is inadequate in the extreme. And I think that it fails the basic test for what the community expects.

In these statements it was made clear through the use of language such as, ’Not the subject of the level of inquiry that I would expect’, ‘Not in my mind’, ‘It makes one wonder’, ‘I think it fails’ that the interviewee is expressing an opinion. The ordinary reasonable viewer would have understood that these views were of an inherently judgmental, subjective or contestable nature. Therefore, they were not factual content covered by the obligations set out at standard 2.1 of the Code.

9. Information provided about the blood alcohol sample taken from RC


Reporter: [WD’s] mother [name] received a visit from the local Police.

Did they tell you they had taken a blood sample from him?

WD’s mother: I don't believe so, no.


Reporter: So you were completely unaware, then, that the driver had been breathalysed and a blood sample taken?

WD’s mother: I had no idea. I was repeatedly told there was no alcohol involved, it was all just a terrible accident.

[…]

Reporter: [WD’s mother] was suspicious. She requested the official Police incident report, written by [GG] the day after [WD] and [EW] died. In it, [GG] stated there was no blood alcohol sample.

COPS event E39631714 includes the narrative which outlines the circumstances of the incident. This event report is included in the brief of evidence Vol 1 Tabulation 18. At paragraph 9 of [GG’s statement], it states that a breath test was conducted and that a blood and urine sample was taken at the Orange Base Hospital.

The paragraph reads:

The driver was submitted to a breath test by initial attending Police which returned a negative result. He was also arrested and taken to the Orange Base Hospital where a blood and urine sample was obtained on the understanding the incident is expected to result in a fatality. After this the driver was released.

The section shown by Four Corners is another part of the event that is populated with other details. This includes that a breath test was conducted and the number of the device. In populating the screen clearly the officer has made an error in entering “n” for no instead of “y” for yes as the sample number D20680 is clearly stated although is listed as a “Drug sample Id”. The Four Corners program is incorrect in claiming that [GG] stated there was no blood sample particularly when the narrative clearly articulates that it was taken.

[WD’s mother] quickly discovered from a friend that wasn't true.

WD’s mother: She said that young man was in accident and emergency at the same time as [WD]. She said one of our most experienced accident and emergency nurses took his blood and he was there for about an hour, so they would have taken his sample also.

Reporter: [WD’s mother] wrote to Police, requesting the blood be sent away for testing. This report by Forensic Pathologist Dr [name] calculated that at the time [RC] ran over [WD] and [EW], his blood alcohol level would have been 0.079.

[The forensic pathologist] places caveats on her opinion. This opinion is assuming alcohol is consumed after midnight/1am but before 4.30am and considers the reading of 0.079 to be ‘most likely’. However the next paragraph revises this reading down to 0.054 if [RC] consumed food during the party. [Her] evidence is not as definitive as represented in the program.

He was well over the legal limit for a licenced driver, let alone the limit of zero for an L-plater.

The ABC submitted that it was given the document provided to WD’s mother showing a ‘No’ for a blood sample being taken; the Police advised this was an error but did not respond to the ABC’s questions in relation to this issue; the segment accurately conveys WD’s mother’s attempts to investigate her suspicions that RC had been drinking, her discovery that a blood sample had been taken and her request that it be tested; and the segment quoted directly from the pathologist’s report on the results. The ABC said:

We are satisfied that this is an accurate version of events, that the program made reasonable efforts to seek an explanation from Police for inclusion in the report, and that it was made clear to the audience that [RC] had indeed been tested for his blood and alcohol reading.


In the context of the segment in its entirety (including the matters at points 2 and 6 above), the ordinary reasonable viewer would have understood the factual assertions to be:

WD’s mother had been unaware that a blood sample was taken from RC, and had been assured by police that alcohol was not a factor in the accident

she obtained a copy of a Police incident report which stated there was no blood alcohol sample

she discovered this was untrue and obtained the results of the blood sample indicating at the time of the accident RC’s blood alcohol would have been over the legal limit for an L-plater.

These assertions were specific, unequivocal and capable of independent verification.

The material facts were that WD’s mother was told by the Police that alcohol was not a factor but that, through making her own enquiries, she discovered that RC had been drinking and blood and urine tests revealed positive alcohol readings for RC. These were material facts in the context of the broadcast.

There is nothing before the ACMA to contradict these facts. As noted above, the Coroner’s Report verifies that blood samples were taken and that RC’s blood was found to contain alcohol. The ACMA accepts that the ABC’s figures came from the pathologist’s report which provided a possible range for alcohol levels at the time of the accident, including the ‘most likely’ figure of 0.079.

The relevant incident report does indicate an ‘N’ [no] for the blood sample:

However, the later narrative section of the incident report describes RC as having submitted to a breath test which returned a negative result, before being arrested and taken to hospital where blood and urine samples were taken. The report, on its face, is ambiguous. The ACMA accepts the ABC’s submissions that Police did not respond to its questions about this issue.

The statements concerning WD’s mother’s recollection of the information given to her that a sample was not collected would be understood to be her subjective account of events. In any event, the factual statements concerning Police statements that alcohol was not a factor are supported by the matters considered at point 2 above.

It was made clear in the segment that a blood sample was taken at the hospital some hours after the accident. This aspect was accurately reported.

The material facts were therefore accurately reported.


10. Whether charges could have been laid against RC in relation to the incident



Reporter: He was well over the legal limit for a licenced driver, let alone the limit of zero for an L-plater.

W family lawyer: As soon as that occurs, it's a standard drink driving charge. The charges could have been as simple as neg drive [negligent driving]. It could have been drink driving.

To prefer the charges as outlined by [the W family lawyer] the incident needs to occur on a road or road related area. Again this was canvassed during final submissions.



They couldn’t be due to the issue of road and road related area. The coroner commented that the view of the Police that it was a road related area ‘waned’.

Paragraphs 88 and 104 of [the Superintendent]’s statement make reference to the case law R v Abrahams [1984] 1 NSWLR 491. A full copy of the judgement was annexed to the statement and supplied to the court. [The Superintendent] outlined at paragraph 104:

In respect to the issue of the incident occurring on a ‘road related area’ the investigator came to the conclusion that it was not a road related area. I agree with that determination in this circumstance. Although others may differ in that view. I do not believe it was open to the public without discrimination nor that the invitation to the selected class of the public was significant enough to make it open to the public however the nature of the invitation could have made it so’. This is reflective of the rationale of the decision in Abrahams case.

Note that the promotion on the 4 Corners website outlines ‘it was meant to be a day of fun. An Australia Day paddock party, a reunion for a group of 19-year-old school friends before they went their separate ways, to university and work’.


This comment takes the evidence out of context. This evidence related only to the possible driving offences of ‘learner unaccompanied’ that occurred well prior to the incident. Again this was canvassed in closing comment by legal counsel at the inquest. The comment does not relate to any offence in respect to the deaths…

Reporter: Inexplicably and without the consultation that Police require, [GG] made another surprising decision. He overturned his colleague's initial judgement that the incident occurred on a road related area. According to [GG], it had now happened on a private property. It seems that [RC] won't be charged with anything.

…Reporter: An Inquest was called in May 2011. The Coroner's office requested a review of the Police investigation, to determine how thorough it was. The review was done by Superintendent [name] - the Commander in charge of Orange Police and [Police officer 3]’s boss. His review overwhelmingly supports [GG]’s investigation, except for his failure to consider charging [RC] with any driving offences under traffic laws. Superintendent [name] declared it was ‘an honest oversight’, because [GG] was focussed on the deaths of [WD] and [EW].

Superintendent [name] did not ‘declare it was an honest oversight’. The coroner stated that [the Superintendent] surmised that it was an oversight.

DW QC: To suggest that the failure of the Police to do anything was more a matter of oversight, which was what [the Superintendent] concluded in his investigation, seemed to be simplistic in the extreme.

Paragraph 102 of the statement of [the Superintendent] makes reference to the ‘oversight’ and needs to be read in the context of paragraph 101. Note that the reporter was given a copy of this statement by counsel assisting.



I have identified that [RC] may have committed some traffic offences prior to this incident occurring. This was in the form of driving to and from the location with his girlfriend and later along [street name] during the party without a fully licensed driver accompanying him. There is also the issue of [RC], a juvenile, obtaining alcohol. This may or may not have involved breaches of the licensing laws.


It would appear that the possibility that these offences were committed were not further examined and have been an oversight with the focus of the investigation being the deaths of [WD and EW]. I believe this was an honest oversight and nothing sinister is inferred from it.

The comment in [the Superintendent]’s statement has been represented out of context. [The Superintendent] was referring to the ‘learner unaccompanied’ offences identified in respect to [RC] driving to and from the location with his girlfriend and later along [the street name] without a fully-licensed river. The comment was not made in respect to any possible offences related to the deaths of the victims. This was surmised by the officers’ reading of the brief of evidence.

The ABC submitted that the segment makes it clear that the W family lawyer, in his comments above, was responding to the established evidence that RC was over the legal limit of alcohol for L drivers and, at the time RC was being breath tested, Police believed the scene was a road related area and therefore it was open to them to lay charges. Further,

Four Corners has noted the comments made by NSW Police Director Investigations and Field Services [name] in his letter dated 26 May 2011: ‘I agree with [the Superintendent] that the investigator has failed to follow the Police Handbook Guidelines specifically if an investigator believes that it is inappropriate to instigate proceedings against a driver for an indictable offence but believes summary matters should be instigated following a fatal or serious motor vehicle accident, then there is a requirement to forward a brief of evidence to the Police Prosecutions Command for advice”. From the material before me, I can see no evidence that the investigators have sought legal advice in regards to this investigation’.

In respect of the comments by the D family’s lawyer, the ABC submitted that the context makes it clear that he is discussing his recollection of answers at the Inquest and the comment does not relate to any offence in respect to the deaths of WD and EW.

On the references to the Police investigation which supported GG’s investigation (except for the failure to consider charging RC with a driving offence concerning his driving to the party unaccompanied), as set out at paragraphs 101 and 102 quoted above, the ABC submitted that the fact was presented in context, with sufficient distinction made between the officer’s focus on the incident that caused the deaths, and the earlier offence on the road related area.

The ACMA also notes that the Coroner initially suspended the Inquest having formed a view that the evidence she had heard was capable of satisfying a jury beyond reasonable doubt that the driver was guilty of an indictable offence, but the DPP declined to prosecute (see Coroner’s Report page 4).

In the context of the segment in its entirety, the ordinary reasonable viewer would have understood the factual assertions to be that:

RC was over the legal limit of alcohol for a learner driver at the time of the accident,

he could have been charged with certain offences

a decision was made not to lay charges, even minor charges

the decision not to charge RC with available road related offences was determined on review to be an oversight


DW QC considered this to be a simplistic response.

These matters were specific, unequivocal and capable of independent verification. The facts were material facts in the context of the broadcast.

There were two references by the reporter which reinforced earlier content making it clear that driving offences could only arise from incidents occurring on a road related area: references to the change in determination that the scene was a road related area (with the result that as the incident occurred on private property ‘RC won’t be charged with anything’) and the Superintendent’s review finding that the failure to charge RC with driving offences occurring prior to the party was an oversight.

The segment had also made it clear that RC had driven unaccompanied to the party, which was a road related offence for which he could have been charged (see points 3 and 8 above).

Although it might have been possible to infer from the W family’s lawyer’s statements that the decision to lay charges referred to the incidents relating to WD and EW’s deaths as opposed to the more minor offences mentioned above, in the context of the segment in its entirety, sufficient explanatory background material was presented to convey that no charges could have been laid against RC for driving offences at the party, once the scene of the incident had been determined not to be a road or road related area.

The material facts are verified by the Coroner’s Report (pages 3, 8-9).

The material facts were therefore accurately reported.

Accordingly, it is concluded that the ABC made reasonable efforts to ensure that the material facts were accurate and presented in context, in accordance with standard 2.1 of the Code.

Presentation of factual content

The ACMA has also considered the obligation at standard 2.2 not to present factual content in a way that will materially mislead the audience.

Here, the ACMA has found that the specific matters complained of (set out above) were not likely to mislead an ordinary reasonable viewer of the program. The matters themselves were factually accurate, or the ABC made reasonable efforts to ensure their accuracy at the time of broadcast. Where views were expressed on matters of a judgmental, subjective or contestable nature, this was sufficiently signalled to viewers.

However, even where (individual) material facts are presented accurately and in context, it is still possible for an audience to be materially misled – including through problematic framing and emphasis.

For this reason, the ACMA has considered whether the general framing of the program might have so coloured the ordinary reasonably viewer’s perceptions that he or she was misled on the matters complained of.

The ACMA considers that an ordinary reasonably viewer would have taken from the segment that it had adopted a probing standpoint which queried aspects of the police investigation and explored the potential conflict of interest arising from the fact that the driver of the vehicle was the son of a Police officer stationed with investigating officers.

However, the segment also included statements such as:




The ordinary reasonable viewer would have understood from these statements that claims of a conflict of interest had been considered by the Coroner and denied by the Police. Further, RC had not been interviewed by the Police because he had maintained his right to silence while charges for indictable offences (as distinct from road related offences) remained possible.

Also, the Presenter’s final statement concerning the perceived conflict of interest repeated the Coroner’s finding:

Presenter: The Coroner has since reported that she was satisfied that Police investigation were thorough and adequate, and not compromised by the fact that [RC] is the son of a Police officer who was formerly stationed at Orange.

For these reasons, the ACMA considers that the audience would not have been materially misled on this matter.

Accordingly it is concluded that the ABC did not present factual content in a way that would have materially misled the audience and complied with standard 2.2 of the Code.

Issue 2: Impartiality

Relevant Code provisions 4. Impartiality and diversity of perspectives

4.1 Gather and present news and information with due impartiality.

The Code requires that these standards are interpreted and applied in accordance with the relevant principles, which include the following:

Judgements about whether impartiality was achieved in any given circumstances can vary among individuals according to their personal and subjective view of any given matter of contention. Acknowledging this fact of life does not change the ABC’s obligation to apply its impartiality standard as objectively as possible. In doing so, the ABC is guided by these hallmarks of impartiality:

a balance that follows the weight of evidence; fair treatment; open-mindedness; and opportunities over time for principal relevant perspectives on matters of contention to

be expressed.

[…]

Impartiality does not require that every perspective receives equal time, nor that every facet of every argument is presented.


Assessing the impartiality due in given circumstances requires consideration in context of all relevant factors including:

• the type, subject and nature of the content;• the circumstances in which the content is made and presented;• the likely audience expectations of the content;• the degree to which the matter to which the content relates is contentious;• the range of principal relevant perspectives on the matter of contention; and• the timeframe within which it would be appropriate for the ABC to provide

opportunities for the principal relevant perspectives to be expressed, having regard to the public importance of the matter of contention and the extent to which it is the subject of current debate.

Complainant’s submissionsThe complaint to the ABC was that the segment was not fair and impartial and that the story was sensational, misleading and ignored the evidence.

The complaint to the ACMA was that the ABC ‘all but ignored the facts and evidence presented to the Coronial Inquest which examined in detail, the questions raised by the Four Corners program. It therefore did not adequately equip audiences to make up their own minds consistent with the public service character of the ABC.’

Broadcaster’s submissions Extracts from the ABC’s response to the complainant and submissions to the ACMA are at Attachment B.

FindingsThe ABC did not breach standard 4.1 of the Code.

ReasonsThe complainant’s concerns about impartiality largely arise from alleged inaccuracies in the program. The ACMA has found at Issue 1 that the segment presented factual material and opinions accurately, and that in many respects, factual assertions in the program were verified from the Coroner’s Report.

The ABC submitted that the segment displayed the hallmarks of impartiality and that the NSW Police were given repeated opportunities to express their perspective, but did not give responses to all the ABC’s questions. As well, to the extent that the NSW Police set out their perspective in the written statement provided, the key elements were incorporated into the program.

The relevant provisions require the ABC to ‘gather and present news and information with due impartiality’ [emphases added]. Inclusion of the word ‘due’ indicates an element of flexibility depending on the particular context.

Achieving impartiality requires a broadcaster to present content in a way which avoids conveying a prejudgment, or giving effect to the affections or enmities of the presenter or reporter, who play a key role in setting the tone of the program, through their style and choice of language.

A program that presents a perspective that is opposed by a particular person or group is not inherently partial. As noted by the ABC in its submissions, impartiality does not require that every perspective receives equal time, or that every facet of every issue is presented.


Whether a breach of the Code has occurred will depend on the themes in the program, any editorial comment, the overall presentation of the story and the circumstances in which the program was prepared and broadcast.

The ABC is entitled to explore controversial issues that are newsworthy and of public interest, as long as the hallmarks of impartiality are met; namely, that there is a balance that follows the weight of evidence; fair treatment; open mindedness; and opportunities over time for principal relevant perspectives on matters of contention to be expressed.

Context will be relevant. In this case, the context for the segment was established in the presenter’s opening statements:

Presenter: They were country kids in the prime of life.

School friend 1: There was no-one that didn't like [WD]; he was one of those rare people I guess.

Presenter: Then, an Australia Day party went terribly wrong.

Voice over radio: They’re not breathing. They’re not breathing.

Presenter: Two people dead. So many questions.

Reporter: What do you believe [EW] deserves?

EW’s mother: Justice. We need the truth.

Presenter: Welcome to Four Corners. Tonight’s story will send a chill through every parent watching. Emotions are powerful, raw and utterly understandable. They’re also unresolved. It's a story about rite of passage in the bush; about a paddock party on Australia Day three years ago that went horribly awry. Leaving two young adults dead, after being run over in their sleeping bag by a utility. The driver was the son of a Policeman. The parents of [EW] and [WD] believe justice has not been well served. But senior Police, the Coroner and the Director of Public Prosecutions all disagree. I know the world is full of tragic stories, most of which are left untold. But this one deserves to be held up to the light, so Four Corners has reconstructed the events of that night. We examine what the local Police did and did not do and follow the Coronial Inquest into the deaths of [EW] and [WD].

Therefore, it was clear from the outset that the segment was to explore the viewpoints of the parents of EW and WD. Further, it was established their views were contentious and not supported by the Police, the Coroner and DPP.

The program continued with a reconstruction of the events surrounding the deaths of EW and WD and was followed by interviews with their parents and their lawyers in which they presented their perspectives and opinions on the Police investigation. It is undisputed that the driver was the son of a Police officer formerly stationed with Police officers who initially attended the scene. Critical issues were whether alcohol was a factor in the incident; whether a proper level of inquiry occurred at the scene; whether the investigation was compromised by the fact that RC was the son of a police officer; and whether driving offences could have been pursued (a point that was dependent on whether the incident occurred on a road related area).

The segment concluded with the following statement:


Presenter: The Coroner has since reported that she was satisfied that Police investigations were thorough and adequate, and not compromised by the fact that [RC] is the son of a Police officer who was formerly stationed at Orange. Four Corners has put detailed questions to the NSW Police and the DPP, their responses can be found on our website. The Coroner also noted that the distinction in NSW between road related offences and private property offences should be reviewed. No such distinction exists in Queensland, Victoria or South Australia.

A balance that follows the weight of evidence

In this case, the program explored the circumstances surrounding the deaths of WD and EW who were run over by a learner driver on private property, focussing on the concerns of their parents over the Police investigation into the incident and their perception that it was compromised by the fact that the driver was the son of a Police officer.

As noted at Issue 1, above, the perspectives of the parents and their legal representatives were accurately presented as their viewpoints. Factual assertions were verified from the Coroner’s Report or reasonable efforts were taken to ensure accuracy.

Fair treatment

While the views of the parents and their representatives were the main focus of the segment, the Police were given opportunities to address and clarify factual issues raised by the ABC but did not respond fully. The ABC relied on evidence provided at the Inquest. The Coroner’s findings that the Police investigation was not compromised were clearly stated at the close of the segment. The opening made it clear that the Police, the DPP and Coroner did not accept the parents’ contention that the Police investigation was compromised because RC was the son of a Police officer formerly stationed with investigating officers.

It was also made clear during the segment that GG stated that he ‘didn’t work with [RC]’s father’. The fact that he had denied a conflict of interest was also mentioned. The segment mentioned that GG had stated before the Inquest that he had ‘[attempted] to interview [RC]’ and had ‘phoned his home twice’, thereby making it clear that he had made efforts to obtain a statement from RC. The segment clearly outlined the fact the RC was breath tested by Police at the scene of the incident, but that the alcolizer used in doing so was subsequently found to have been defective. Accordingly, the audience could deduce that the initial assumption by Police that alcohol had not been a factor in the incident was a reasonable one. The NSW legal distinction between a road or road related area and private property, and the charges that can be pursued in each instance, were also articulated sufficiently in the segment.

Open mindedness

While the segment featured many viewpoints that were critical of the Police investigation into the incident, as noted above, it also made it clear that the Coroner had found that the Police investigation was not compromised by a conflict of interest. The segment as a whole did not convey a prejudgement on the issues.

As noted above and in the segment, the Police were given the opportunity to contest the views put. The segment also made it clear to the ordinary reasonable viewer that issues concerning the incident had been contested and determined by the Coroner. Opposing viewpoints were explored in sufficient depth to ensure that viewers were left free to make up their own minds in relation to the key issues such as the adequacy of the Police investigation.


Opportunities over time for principal relevant perspectives of contention to be expressed

The ACMA also notes that principal relevant perspectives on matters of contention were presented in the segment.

For example, the segment established the basis of the parents’ concerns over the Police investigation and made it clear that contentious issues had been considered by the Coroner who found that the Police investigation had not been compromised. It mentioned that the Police review ordered by the Coroner ‘overwhelmingly supported GG’s investigation’ (other than his failure to place minor charges); and it referred to the fact that RC ‘maintained his silence’ and ‘didn’t give evidence’ at the Inquest, indicating that he had exercised a right of silence.

Conclusion

In terms of the overall presentation of the segment, the ACMA makes the following observations:

The reporter maintained a relatively neutral tone throughout the broadcast and did not use sustained emotive or colourful language. The ACMA considers that the language and tone did not convey any prejudgment, nor did it appear to give effect to any affections or enmities of the reporter or presenter.

The segment made it very clear that there were opposing views. As indicated in the Code’s Principles above, impartiality does not require that every perspective receives equal time, nor that every facet of every argument is presented.

While the majority of those interviewed in the segment supported the parents’ views, the reporter made it clear that they were contestable and had been considered by the Coroner who found the Police inquiry was not compromised.

The fact that equal time was not allocated to each perspective does not indicate that the broadcast was biased. The ACMA considers that viewers would have been aware that there were conflicting views.

Having regard to the factors outlined above, the ACMA considers that the segment met the obligations for impartiality referred to in the Code.

Accordingly, the ABC did not breach standard 4.1 of the Code.


Attachment ATranscript – While they were sleeping – 21 October 2013 (taken from the ABC transcript at http://www.abc.net.au/4corners/stories/2013/10/21/3871352.htm)Presenter: They were country kids in the prime of life.

School friend 1: There was no-one that didn't like [WD]; he was one of those rare people I guess.

Presenter: Then, an Australia Day party went terribly wrong.

Voice over radio: They’re not breathing. They’re not breathing.

Presenter: Two people dead. So many questions.

Reporter: What do you believe [EW] deserves?

EW’s mother: Justice. We need the truth.

Presenter: Welcome to Four Corners. Tonight's story will send a chill through every parent watching. Emotions are powerful, raw and utterly understandable. They're also unresolved. It's a story about rite of passage in the bush; about a paddock party on Australia Day three years ago that went horribly awry. Leaving two young adults dead, after being run over in their sleeping bag by a utility. The driver was the son of a Policeman. The parents of [EW] and [WD] believe justice has not been well served. But senior Police, the Coroner and the Director of Public Prosecutions all disagree. I know the world is full of tragic stories, most of which are left untold. But this one deserves to be held up to the light, so Four Corners has reconstructed the events of that night. We examine what the local Police did and did not do and follow the Coronial Inquest into the deaths of [EW] and [WD]. The reporter is [name].

Triple O operator: Ambulance, what's the exact address of the emergency?

Caller 1: Um where are we? [Road name], a property called [name].

Reporter: It's Australia Day 2010. An hour before sunrise, at 10 past five in the morning, 19 year-old [name of caller] rings triple 0. He's at an all-night party on a country property in NSW.

Triple O Operator: How many people?

Reporter: Two people are fighting for their lives.

Caller 1: Just tell 'em to come out, fuck this.

Triple O Operator: Listen they're being organised. We're going to have to get quite a few vehicles there so I want everyone there to be quiet there and behave...

Caller 1: Yeah, no, look I'm sorry I'm just trying to figure out...

Triple O Operator: Alright, how old is the first person? Male or female and how old are they?

Caller 1: There's a male and a female.

Triple O Operator: Yeah how old is the person. How old? 20, 80?


Caller 1: 19.

Voice: They're not breathing, they're not breathing.

Triple O Operator: Alright now.

Reporter: An ambulance is heading to a property near the small town of Molong, 25 minutes from Orange in central west NSW. The injured are both 19 years old. And they're not breathing.

Paramedic: We were told that there were two people, a male and a female, that had been run over and there were CPR in progress. So clearly a serious accident.

Voice: Just get here!

Triple O Operator: When they get out on Molon, what road will they head out on? Listen!

Reporter: In the chaos, 17 year-old [name] takes over the call.

Caller 2: Are they conscious and breathing [shouts to the group]. No, no they're not.

Triple O Operator: Alright what we're going to do is...

Caller 2: Shut up.

Triple O Operator: CPR on both of them all right?

Caller 2: Yeah we've been doing CPR on both of them.

Triple O Operator: Okay alright, now can you look at the girl and tell me what injuries she has?

Caller 2: It's all internal too. She has no colour in her face. It's too purple in her face.

Triple O Operator: Her face has gone purple.

Caller 2: It's really purple in her face and there's blue in her face (sobs).

Reporter: The owner of the property and father of the party's host, [name], gets on the line. He and his wife [name] have been asleep.

Triple O Operator: And how did this accident happen, do you know?

Party host: I only just arrived so I'm a little bit unclear myself.

Triple O Operator: Ok, all right.

Party host: I think the ute has backed over some people sleeping in a swag.

Triple O Operator: Ok.

Reporter: By now the couple have been kept alive by their friends for 20 minutes.

Caller 2: Oh yep, I can see the lights coming down the road now.

Triple O Operator: Great, there you go.


Caller 2: Yep.

Triple O Operator: All right you've done a really good job there.

Caller 2: Yep.

Reporter: At 5.37am the ambulance arrives and the paramedics take over.

Paramedic: It was very sombre. They were very aware of how serious this whole scenario was. Very, very sombre, very flat and very quiet.

Reporter: [EW] and [WD], friends since high school, are barely alive.

Could you see their faces?

School friend 2: Yeah.

Reporter: How did they look?

School friend 2: Cold. Um, yeah, just cold and lifeless.

Reporter: [EW]’s parents have no idea what's happening to their daughter until the phone wakes them.

EW’s mother: And I picked it up and it was Mr [name], and he said there's been an accident. And I remember yelling and saying is [EW] okay? Is [EW] okay? And he said, they're doing CPR on her at the moment.

EW’s father: So I heard [my wife] then say: '…is she dead?' And that certainly changes your whole approach at those early hours as you're waking up.

Reporter: [EW’s parents] head for Molong.

Can you describe the scene?

EW’s father: It was, it was carnage. Um is the best way I can describe it.

EW’s mother: There was lots of cars, I just remember all the cars. It was in a big paddock. It was like a car park. That's what it was like.

Reporter: As you reached [EW], can I ask you how she looked?

EW’s mother: She was just very still at that stage. She was, her face was still, her face was still beautiful.

Paramedic: She was shattered; she was desperate as she was begging for a positive response from our treatment and [EW]. She was as desperate as any mother would be faced with the fear of losing her daughter.

EW’s mother: And I just kept talking to her. I just kept saying: ‘You've got to hang on darling, you've got to hang on, you've really got to fight’.

EW’s father: And also we had [WD] beside us at this time too, and I remember saying: ‘Oh God, there's another one’.


Reporter: The [W family] don't notice the local Police arrive and breathalyse the driver. At Orange Hospital, [WD]'s mother [name] is waiting for her son.

WD’s mother: He was on a ventilator. He was unmarked except for a slight graze over his left shoulder.

Reporter: But his injuries were fatal. [WD] and [EW] had been crushed by a ute while they were sleeping together in their swag.

EW’s father: All we were hearing was that a swag had been run over and that it was a terrible accident. We couldn't understand why [WD] and [EW] would put a swag behind a, or next to a ute as we were hearing.

WD’s mother: I was constantly told, in ICU, no alcohol involved; it's all just a terrible accident. There was no irresponsible behaviour, there was no irresponsible driving; no alcohol; we're not going to lie to you. One detective kept saying to me over and over again, we're not going to lie to you.

Reporter: On the 27th of January 2010 at four in the morning, [EW] died. [WD] seven hours later.

WD’s mother: We all held him…as the machine was switched off, and I put my hand over his heart (starts to cry)…and after the machine was turned off his heart kept on beating…and I was terrified…but it stopped. His heart stopped beating.

Reporter: As you left the hospital...

EW’s mother: Which is the hardest thing I've ever done in my life, to leave the room, to turn your back for that last time is the worst thing that anybody would ever have to do. That's what haunts me still. I keep saying to myself: ‘I should have looked back again, I should have─’ [begins to cry]. I just want one more look. I just want to be able to see her one more time.

Reporter: Leaving the hospital, [EW’s father] was approached by the local Police.

EW’s father: They asked me if they could do anything.

Reporter: What did you tell them?

EW’s father: Just do your job.

News reporter 1: Police are investigating the incident at a party on [road] near Molong yesterday, they've ruled out alcohol as a factor. The 19 year olds were with a group of 30 others. Police say it's a tragic accident.

News reporter 2: The 17 year old driver of the utility is cooperating with Police.

Reporter: The following day, the local Police in Orange went public. Explaining what happened, one statement stood out.

Police spokesman: Police are making a number of investigations, we don't believe alcohol is a factor in this accident.

Reporter: When Inspector [name] told the nation that this was nothing more than a tragic accident at a party of about 30 campers, and that alcohol wasn't a factor, the community trusted that this was the case. But in reality, the truth was very different.


To find out what really happened that morning, you need to go back. Three years ago, to Australia Day 2010. It was end of the summer holidays and [WD] had just arrived back from a gap year in Africa.

School friend 1: There was no-one that didn't like [WD]; he was one of those rare people I guess that just, got along with everyone. He was kind, knew how to have a laugh. Cheeky I guess.

Reporter: Stylish and confident, [EW] was back in Orange after a holiday in Paris.

What was [EW] like?

School friend 1: I really like [EW], she was, one of a kind. Just a nice, beautiful person.

Reporter: [WD] and [EW] had graduated from the elite [school name] in 2008, a co-ed private boarding school in Orange. [WD] and [EW]'s school friend was throwing an Australia Day party on his parents’ farm [name] in Molong.

It was BYO and his parents, [names], attended that night. [Mother’s name] told her 19 year-old son that she and [father’s name] weren't having anything to do with the party; that he and his friends were adults now, and they were responsible for everything. But they weren't all adults.

School friend 1: I have heard of a couple of the parties at Molong getting a bit more out of hand, umm, I think this party was a bit of a mix.

Reporter: It was a mix of age groups. The [host’s] younger son, then 17 years old, had also extended the invite to his friends on Facebook; kids from the local area.

WD’s mother: There were children as young as 15 at this party. No keys were collected. There was not even the basics that you would do if you were prepared to take the risk of having this type of party, you'd at least take some measures to ensure that the children were safe. And one of the most logical would be: everybody put their keys in a bucket and they don't get their keys until the following morning.

Reporter: [WD] and his friends arrived at [property name] at around 2pm.

School friend 2: Australia Day, it was gonna act as a good central point for everyone who had been doing their own thing, sort of, over the Christmas break and a good chance for everyone to touch base with each other before uni, unis and jobs kicked off.

Reporter: The stage was set for a big night. With a combination of younger and older kids, the numbers swelled to over 100 party goers. Aged between 15 and 20. Inside the wool shed was the dance floor. Nearby, a flat, dry paddock where cars were parked.

School friend 2: More people just kept arriving, just as a constant flow of people into the night.

Reporter: The plan for most was to drink through the night and not drive. To camp in swags or sleep in their cars.

Why doesn't everyone drive home?

School friend 3: Because usually everyone's been drinking.

Reporter: So you'd be over the limit?


School friend 3: Yep.

School friend 5: There was a definitely a binge drinking culture ah, at, at those parties.

School friend 3: Oh, obviously there was a few people partying pretty hard.

Reporter: How many drinks would you and your friends be likely to be able to handle at a party?

School friend 3: Personally myself, not many, but there's plenty that could drink heaps.

Reporter: What's heaps?

School friend 3: I don't even know.

Reporter: Twelve plus?

School friend 3: Twelve plus.

Reporter: Another paddock was set aside for circle work. A popular past time at country parties, where cars and utes are modified to do burnouts and donuts. At 8pm, [EW] and her girlfriends arrived at [property name]. She and [WD] quickly found one another.

And what was [EW] doing?

School friend 6: I saw her at the fire chatting with people, I saw her twirling on the dance floor and I saw her drinking. I think she was having a great time.

Reporter: At around 9pm, 17 year old [RC] arrived, driving his new ute. He didn't have a licence; he was on his L plates. But on that night, against the law, he took his friends out for rides on the highway.

W family solicitor: Alcohol, high powered utes, and some driving manoeuvres which wouldn't be legal like on a public street.

Reporter: As an L plate driver [RC] wasn't allowed to drink. But he was seen drinking alcohol throughout the night. As morning approached, [WD] swapped from drinking beer to Pepsi.

School friend 6: My last memory of [EW] is seeing her in the distance kissing [WD], and the two of them were together and yeah that, that's my last memory of [EW].

Reporter: How did they look?

School friend 2: Probably the best they've looked. Yeah no they both looked great, so─

Reporter: There was a romance blossoming?

School friend 2: In the, in the process of, potentially.

Reporter: At 3am the party was slowing down. Many had gone to bed in swags on the ground or in the back of a ute. With no car to sleep in, [EW] and [WD] climbed into the one swag and camped on the ground next to the sheep pens, around 20 metres from where the nearest cars were parked.

Reporter: Do you think they slept in a place that they shouldn't have? Do you think they put their swag in a dumb place?


School friend 2: There's no right or wrong, umm, it was quite typical, the whole party in itself was quite typical.

Reporter: They didn't sleep somewhere that put them in danger then?

School friend 2: I'd say no.

Reporter: As dawn approached, a group of stragglers continued to party. 19 year old [party attendee] was in the back of his ute.

Reporter: Did you go to bed?

School friend 7: Umm, no I didn't, as, well, no.

Reporter: So what were you doing?

School friend 7: Umm, just sitting having a beer chilling, enjoying the party.

Reporter: A short distance away at around a quarter to five in the morning, the unlicenced [RC] got into his black ute. He turned the engine on and the radio, but not his lights.

School friend 5: Basically all I was told was: he wanted to leave early because he didn't want to get caught by the Police, and it was that, that either because he was A, drink driving or B, underage. He didn't want to get caught driving on his L’s, so he wanted to get home before the Police were patrolling the roads.

Reporter: And what happened next?

School friend 7: Umm. I remember seeing [RC]’s or, umm car move. But I sorta didn't, didn't sorta take any notice of it.

Reporter: [School friend 7] watched [RC]'s car quickly reverse about 20 metres into the darkness, then come to a sudden stop next to the sheep pens. A new sound filled the air.

Reporter: You remember hearing it revving?

School friend 7: Yeah I remember hearing the car was running yeah, and but I didn't think anything of it.

Reporter: [WD] and [EW] were trapped underneath - the spinning tyres catching and tightening the swag around them.

Reporter: What was it spinning on?

EW’s father: It was spinning on the swag. It was spinning on [EW]. And [WD].

WD’s mother: I just have nightmares─ about the pain [WD] experienced, because he couldn't get his next breath. His chest was so compressed with this car sitting on top of it, let alone the wheels spinning─ and he's trapped in a sleeping bag. He's like a lamb to the slaughter.

Reporter: Police photos show the swag was covered in thick, black tyre marks. At 4:52am [RC] repeatedly rang his friend [name] - five times in the space of just 17 seconds - until she finally answered.

Actor (RC): I'm bogged pretty bad.


Reporter: He told her he needed help, that his ute was bogged. But when [school friend 7] walked past a few minutes later, [RC] told him something very different.

School friend 7: I was walking to the shed and that's when I ran into [RC]. And he was upset so, yeah.

Reporter: He was upset. What was he doing?

School friend 7: Umm, he was in bit a shock, I think, and sorta realised what had happened and said didn't know what to do I guess, sort a panicked.

Reporter: And what did he tell you that had happened?

School friend 7: Ahh, that he'd run over or killed [other name] and someone else yeah.

Reporter: [RC] thought he'd run over someone he knew.

You must have been shocked hearing that?

School friend 7: Yeah I sorta didn't know how to take it at the time yeah. I didn't─ I didn't know if it was a sort of joke or what but yeah, and then we went over there and realised it was serious, so─

Reporter: And what did he show you?

School friend 7: Umm, just pointed sorta at the swag, where the swag was and, yeah.

Reporter: And where was the swag?

School friend 7: It was under the car at the time yeah. I remember I had a look and touched the swag.

Reporter: And what did you feel?

School friend 7: Ahh, I felt a body in there and, yeah. Then from then sorta realised that someone was still stuck under there and─

Reporter: Were they moving?

School friend 7: Ahh, no, no.

Reporter: By the time Triple 0 was called, [WD] and [EW] had been trapped under the 1.5 tonne ute for almost 20 minutes. A group of boys lifted the car and dragged the swag out from underneath.

Actor: Five, six, seven, eight. Five, six, seven, eight─

Reporter: What did you see?

School friend 2: Just them two, they were laying on top of the swag and people performing CPR and─

Reporter: They must be images you struggle with?

School friend 2: I can, it's definitely, it's definitely burnt in, etched into my mind, definitely.


Reporter: The 17 year old L-plate driver was being comforted by his friends.

School friend 3: I thought: ‘You poor bastard, you're gonna have to live with this for the rest of your life’. And the first person I thought about wasn't any of my mates or their parents, I just, for some reason I just thought, that's gonna be pretty tough to deal with.

Reporter: That night, the unlicenced driver had repeatedly and illegally driven his ute on the highway. He'd also been drinking. He then ran over two people - ending in a double fatality. For [RC], consequences appeared inevitable. [DW] QC has examined the Police investigation of the case.


Reporter: At 6am, the first Police officers from Orange arrived on the scene. They knew there was a possible double fatality. Problem was, it had happened on private property. Under NSW traffic legislation, driving offences can only be pursued by Police if they occur on a road related area or a public road.

DW QC: It does seem somewhat paradoxical that the presence of a boundary fence can make such a difference in outcome. It's difficult to see why it should be less offensive to cause death on a private property than it is on the other side of the fence on the road.

Reporter: In NSW, it's up to Police on the scene to decide whether or not it's a road related area.

W family lawyer: The objective factors are it was it was a farm but it, the area that was being used at the time was being used as a carpark. And the test is whether the carpark was open to or being used by the public.

Reporter: The Police counted up to 60 cars and the gates were open. They quickly decided the location resembled a public car park, and treated it as a road related area. This meant they could pursue driving offences and legally breath-test the driver. By now, nearly two hours have passed since [RC] ran over [WD] and [EW].

Actor (Police officer): Have you had a drink in the last 15 minutes?

Reporter: Did Police ask, at that moment, did they ask the driver [RC]: ‘Have you been drinking?’

D family lawyer: I think the question that they asked him from memory is, ‘have you had a drink in the last 15 minutes’, rather than ‘have you been drinking’.

Reporter: We're talking about a potential double fatality here at the moment─


Reporter: ─Police arrive.


Reporter: And the only question they ask of the driver─


D family lawyer: ─is: ‘Have you been drinking in the last 15 minutes’.

Reporter: 15 minutes.

D family lawyer: And umm that, that's correct.

Reporter: The Police didn't ask [RC] if he'd been drinking at the party. And that morning [RC] blew zero. According to the breathalyser he didn't have a drop of alcohol in his blood. But the reading was false. We now know the Police were using a broken breathalyser - this document shows it wasn't detecting any alcohol at all. It was sent off for repair one week after the incident.

WD’s mother: The alcolizer, the machine that was used was faulty and had to be sent away for repair and recalibration, that it wasn't just a little bit out.

Reporter: [Police officer 1] and [Police officer 2] arrived on the scene. They were told to take the driver to hospital for a blood and urine test. They recognised the name [RC]. [RC] was the son of one of their own.

D family lawyer: [Police officer 2] was the officer on duty. [Police officer 2] recognised him, asked him if his father was [name]. And when he was then, [Police officer 2] gave him the phone, said: ‘Look you better ring your father’.

Reporter: [RC]'s father [name], a senior highway patrol officer at Orange Police for three years - a close colleague and friend of [Police officer 1 and Police officer 2] - was stationed six hours away, on the NSW mid north coast. Inside the Police car, using [Police officer 2]’s own mobile phone, 17 year old [RC] had a private conversation with his dad.

Reporter: What was discussed in that conversation?

D family lawyer: Well, umm, I don't know. The─ we were never told what was discussed.

W family lawyer: There is always a need for transparency and clarity, and what they should have done was demonstrated that transparency and clarity by referring the investigation to somebody who had nothing to do with the Police officer whose son was involved in this accident, or the officers who knew that Police officer.

Reporter: At 7:00am, as [Police officer 1 and Police officer 2] left [property name] with [RC], the detective in charge, [GG], arrived and began to document the area.

His photos show the ground is scattered with empty rum cans and beer bottles. [WD] and [EW]'s swag is up close next to the railing of the sheep pen, well away from the rows of parked cars. Next to it, [WD’s] Australia Day sombrero hat. [EW]'s rubber thongs. The swag wasn't forensically examined. [GG] took only three photos of the car. Two of them show a white esky sitting in the tray. But [GG] didn't venture any closer, choosing not to look inside. Instead of examining the car and its contents, according to his handwritten notes, [GG] took a handful of witness names and phone numbers before leaving the scene. Over the coming weeks, Police took statements from only a quarter of the partygoers. Beyond that, there was no forensic investigation.

W family lawyer: If it had happened on a highway with two people dead and it was on the front page of every of paper and on the national news, there would have been Police investigators crawling all over it, there would have been photographs, measurements, reconstructions and they would have a─ at least some version of events from the driver.

Reporter: But they didn't. Almost three hours after the incident, a blood and urine sample was taken. The detective in charge, [GG], then sent [RC] home.


DW QC: It makes one wonder whether or not that rigorous, independent assessment that ought to have been applied to this case was in fact brought to bear. And simply put, I don't think it was. The material ought to have been put to the young driver. He was asked nothing about the circumstances. I don't think he was asked a question about the circumstances of the accident. And to me, that seems to be extraordinary.

Reporter: The next day, the day after his daughter died, a grieving [EW’s father] was called in to Orange Police station. They had something to tell him.

EW’s father: They told me that the driver of the car was a son of a Policeman, who had been formerly stationed at Orange Police Station.

Reporter: Was that a conflict of interest to you?

EW’s father: They declared it as a conflict of interest, they, they used that terminology, and so I was led to be, led to understand that there would be a, a very different way that the investigation would be carried out, that it would be carried out appropriately.

Reporter: [WD’s] mother [name] received a visit from the local Police.

Did they tell you they had taken a blood sample from him?

WD’s mother: I don't believe so, no.

Reporter: So you were completely unaware, then, that the driver had been breathalysed him and a blood sample taken?

WD’s mother: I had no idea. I was repeatedly told there was no alcohol involved, it was all just a terrible accident.

Reporter: [WD’s mother] didn't believe what she was being told. She logged onto Facebook, looking for images of the night.

WD’s mother: I found a photo of [RC] with alcohol in his hand.

Reporter: How easy was it to find that photograph?

WD’s mother: Very easy.

Reporter: Did the Police find that photograph?

WD’s mother: No. I don't believe so.

Reporter: [WD’s mother] was suspicious. She requested the official Police incident report, written by [GG] the day after [WD] and [EW] died. In it, [GG] stated there was no blood alcohol sample. [WD’s mother] quickly discovered from a friend that wasn't true.

WD’s mother: She said that young man was in accident and emergency at the same time as [WD]. She said one of our most experienced accident and emergency nurses took his blood and he was there for about an hour, so they would have taken his sample also.

Reporter: [WD’s mother] wrote to Police, requesting the blood be sent away for testing. This report by Forensic Pathologist Dr [name] calculated that at the time [RC] ran over [WD] and [EW], his blood alcohol level would have been 0.079. He was well over the legal limit for a licenced driver, let alone the limit of zero for an L-plater.


W family lawyer: As soon as that occurs, it's a standard drink driving charge. The charges could have been as simple as neg drive. It could have been drink driving.




Reporter: Inexplicably and without the consultation that Police require, [GG] made another surprising decision. He overturned his colleagues’ initial judgement that the incident occurred on a road related area. According to [GG], it had now happened on a private property. It seems that [RC] won't be charged with anything.

DW QC: Two fine young people, according to the evidence that I've read, are dead. Their families are understandably devastated. And what those members of the community would have expected was a thorough investigation where every reasonable inquiry was exhausted before the Police decided to do nothing.

Reporter: What is this sort of investigation?

DW QC: Well it is inadequate in the extreme. And I think that it fails the basic test for what the community expects.

WD’s mother: I wrote to the state coroner requesting an inquest, and I think I stated my concerns about the veracity of the Police investigation.

Reporter: An Inquest was called in May 2011. The Coroner's office requested a review of the Police investigation, to determine how thorough it was. The review was done by Superintendent [name] - the Commander in charge of Orange Police and [Police officer 3]’s boss. His review overwhelmingly supports [GG]’s investigation, except for his failure to consider charging [RC] with any driving offences under traffic laws. Superintendent [name] declared it was ‘an honest oversight’, because [GG] was focussed on the deaths of [WD] and [EW].

DW QC: To suggest that the failure of the Police to do anything was more a matter of oversight, which was what [the superintendent] concluded in his investigation, seemed to be simplistic in the extreme.

Reporter: At the inquest in 2011, the breakthrough came on the fifth day, when the Coroner suspended the hearings, stating there was enough evidence to convince a jury the driver [RC] had committed a serious offence. It was referred to the Office of the Director of Public Prosecutions.

WD’s mother: It was a very, it was very emotional because finally we were going to get some judicial scrutiny of this accident, and finally [WD] and [EW] could have some justice.

Reporter: But hopes were dashed.

What happened?

EW’s father: After a long period of time, in March the following year, we get a letter from the Office of the DPP.

Reporter: What did that letter say?


EW’s father: Very little other than on the evidence available that the charges won't be laid. Four, four lines.

Reporter: In the letter, the Office of the DPP decided no charge would be laid against [RC], based ‘on the evidence presently available. [WD]'s father [name] asked the deputy director of the DPP, [name], why they weren't proceeding.

WD’s father: [The deputy Director of Public Prosecutions] said he couldn't proceed with the prosecution because the evidence was so poorly collated and you need a, much, much, much more accuracy to, to take something to court.

WD’s mother: When I eventually got to see [the deputy Director of Public Prosecutions], he said to me: ‘I was unaware that he was the son of a Police officer until you sat here and told me today’. So it appeared to me even though the DPP had made a decision, that there wasn't enough evidence to run this, this case, it appeared that nobody's actually read the entire brief of evidence.

Reporter: And whose responsibility was it to gather that evidence?

EW’s father: The Police.

Reporter: And had they not?

EW’s father: Not in my mind.

Reporter: Today [WD’s mother] and her family are back at Orange local court. The inquest into the death of her son [WD] and his friend [EW] has resumed. Many of the players have returned.

EW’s father: We'll get to more of the facts, and there's some facts which have been missing and it's time for those to get aired.



DW QC: You'd have to say that he's very fortunate. [RC] has had the benefit of a number of what I would regard as systemic investigative failures in this case.

Reporter: The Police also rejected our repeated requests for an interview.

[GG], [name] from Four Corners how are you? We would just like to ask you some questions now the inquest is over?

Superintendent: [Reporter’s name], Can you direct any inquiries to the Police media unit please.

Reporter: Yes of course, we have.

Superintendent: We won't be making any comment, ok, thank you.

Reporter: Right, ok, thank you.


The silence is hard to bear for the grieving families. [WD’s father] paints the scene of the morning [WD] died, trying to make sense of his son's violent death. [WD]’s mother [name] watches her son's last adventure; over and over again.

WD’s mother: I could spend my lifetime talking about him. I will spend my lifetime talking about him.

Reporter: Every day [EW’s mother] sits on her daughter [EW]’s bed. She didn't go to the inquest. There is a lot she can't hear; the pain's too much. But she wonders what he looks like, the boy who drove the ute.

EW’s mother: If I see a young-looking boy, I'm thinking, is that him? Is he looking at me? Does he know me, is that him? I don't want him in jail. I don't need that. But shouldn't he be at least inconvenienced in some way? Shouldn't he at the very least say, you can't drive for five years, you've got no licence?

Reporter: If you are to conquer this grief, what do you believe [EW] deserves?

EW’s mother: Justice.

Reporter: How can this happen? How can you get justice?

EW’s mother: The truth. We need it - we need the truth.

Presenter: The Coroner has since reported that she was satisfied that Police investigation were thorough and adequate, and not compromised by the fact that [RC] is the son of a Police officer who was formerly stationed at Orange. Four Corners has put detailed questions to the NSW Police and the DPP, their responses can be found on our website. The Coroner also noted that the distinction in NSW between road related offences and private property offences should be reviewed. No such distinction exists in Queensland, Victoria or South Australia.


Attachment BThe ABC responded to the complainant as follows (13 March 2014 - text in bold represents the complainant’s original complaint to the ABC):

We note your concern that the NSW Police perspective on this matter was not adequately covered by Four Corners, and that greater emphasis should have been given to the evidence and findings of the coroniaI inquest. However, it is important to understand that impartiality does not require that every perspective receives equal time, or that every facet of every issue is presented. While the Coroner determined that the police investigation was "thorough", the ABC understands that the families of the deceased and their legal representatives remain dissatisfied with the police investigation, as does [DW] QC, a respected senior lawyer who independently examined the police investigation of the case.

We are satisfied these concerns about the police investigation are newsworthy and represent matters of significant public interest. The fact that those concerns differ from the conclusions of the Coroner does not preclude the ABC from reporting them. Four Corners is a current affairs program that seeks to provide context and analysis of complex news stories, that is why the program explored the concerns and criticisms of the police investigation and afforded the police repeated opportunities to respond to those concerns. We are satisfied that it is the role of the program to provide insight and examination of such a newsworthy story that also represents a matter of significant public interest and that there was no editorial requirement for the program to base its report around the Coroner's findings in this case.

We note the program made it unmistakably clear to the audience that the Coroner reported that she was satisfied the police investigation was thorough, adequate and not compromised by [RC’s father] being a police officer;

[Presenter]: The Coroner has since reported that she was satisfied that police investigators were thorough and adequate, and not compromised by the fact that [RC] is the son of a police officer who was formerly stationed at Orange.

Four Corners has explained to Audience and Consumer Affairs that it made numerous requests to interview any of the police involved in the investigation into the deaths. At the time of the first request, the Deputy Coroner had not yet delivered her findings and the police advised the program they could not comment until she had done so. Once the Coroner had delivered her findings, a further request was made for an interview, which was again declined. I am advised that Four Corners then provided detailed written questions to the NSW Police, most of which were never addressed, but relate to some of the matters raised in your complaint.

The fact that [RC] was the son of a police officer formerly stationed at Orange did not complicate matters. This issue was had no bearing on the investigation.

We are satisfied the fact that [RC] was the son of a police officer formally stationed at Orange was newsworthy and a matter of public interest, and that references to this fact were relevant to the issue being reported and were presented in context. We note [EW’s] father specifically stated in the program that he had been called in by Orange Police and informed that the driver of the vehicle was the son of a policeman. [EW’s] father explained the police used the expression "conflict of interest" and he was lead to believe the investigation would be carried out appropriately. Deputy State Coroner, [name], also noted there were detailed submissions made by representatives of the family that revolved around the perception of a conflict of interest in the investigation of the deaths of [EW] and [WD].

We note your statement that the only suggestion of the police investigation into the incident being "conflicted" came from Four Corners. The ABC understands this concern is in fact held by the families of the deceased persons, their lawyers and the respected QC, [DW], who independently examined the investigation.

This is sensationalist. Police obtained a version of the incident from [RC]. Police can only demand a version in respect to a motor vehicle collision if it occurs on a road or


road related area. The legal obligation is discharged if a brief version is given by the driver or their legal representative. The brief details supplied are outlined in the statement of [Sergeant O] at paragraph 10. During brief questioning [RC] admitted to being the driver of the vehicle at the time of incident and agrees that he ran over some people that who were laying behind the car. He didn't see them and the swag was the same colour as the grass. Beyond giving brief details any confession admission or statement would be inadmissible unless a caution is administered that he was not obliged to say anything. This is required by the evidence Act s139. Further [RC] is a juvenile. Any further questioning of him must have taken place in the presence of an adult of [RC's] choosing. This is required by s13 of the Children (Criminal Proceedings) Act 1987. If the incident does not occur on a road or road related area there is no obligation on the part of the driver to say anything at all.

The breath test was conducted by [Constable P] and the result on the device shown to [Sergeant O]. It is well documented that the alcolizer used gave a false negative reading due to the machine malfunctioning. As a result it is a reasonable inference that Inspector [name] drew when he conducted a stand up with the media that he didn't believe alcohol to be a factor. Note that he used the word "believe", and at the time he had no reason to doubt the accuracy of the alcolizer.

We are satisfied the introductory statement for the program is an accurate summary of the lingering concerns about the police investigation that were featured in the broadcast. The report accurately conveyed the extent to which [RC] was questioned by the police at the scene, noted the police believed alcohol not to be a factor in the accident and made clear that it was later discovered the alcolizer reading upon which that assessment was based had been defective and had given a false reading. We believe it was made sufficiently clear to the program's audience why the officer believed alcohol not to be a factor at the time he made that statement.

The report also included important context by noting the Australia Day party was predominantly a drinking party, an obvious fact made clear by the large quantities of alcohol consumed by the party goers, the number of discarded cans and bottles littering the landscape'· and the fact most attendees chose to sleep in the paddock as they were generally too inebriated to drive home.

It should be noted that [JB] was not present at the party and that from an evidentiary point of view this is all hearsay. This information is what he has been told with no source identified.

We note [JB] states “Basically all I was told was he wanted to leave early because he didn't want to get caught by the police ... “ making it clear that he did not attend the Australia Day party and was relating a conversation he had with those who had attended. Four Corners notes the Coroner on page 9 of her report said that [RC] could have been charged with summary driving offences under the Road Transport (Drive Licensing) Regulation 2008.

The photograph shown on the program shows darker marks than the photo contained in the police brief. One must question whether the photograph had been altered.

Four Corners has confirmed this was an official police photograph which was not manipulated or altered in any way. The executive producer has explained that all Four Corners programs are graded, or colour corrected, which lifts the contrast of every shot in the broadcast.

For the offence of driving in a manner dangerous to the public the offence must occur on a road or road related area. The offence of "failing to assist" also requires that the incident occur on a "road or road related area". The issue of "road or road related area" was heavily considered as evidence in the review of the investigation. Case law was cited and the relevant case law attached to the statement of Superintendent [name]. Police expressed their opinion on the issue and commented that others may disagree with that view, however ultimately it was a matter for the court.


This statement was clearly attributed in the broadcast as the view of respected senior lawyer, [DW] QC. Four Corners agrees that the issue of "road or road related area" is a crucial issue in this case that was widely considered in the coroniaI inquiry, with Deputy Coroner [name] referring to the anomalies with respect to the Road Transport Act 2013. The program noted the distinction and later in the report questioned why the police initially treated the incident as road related and later changed that position;

Reporter: At 6am the first police officers from Orange arrived on the scene. They knew there was a possible double fatality. Problem was, it had happened on private property. Under NSW traffic legislation, driving offences can only be pursued by police if they occur on a road related area or a public road.

This is not correct. Paragraph 10 of [Sergeant O] statement outlines the conversation. They ask for his details, if his parents were present, if there was an adult present who could act as a support person- this is answered in the negative, he admits to being the driver, that he does not have a licence and has not consumer alcohol in the last 15 minutes. He is asked "what happened" he provided the version that "I just ran over them. I didn't see them. Their swags were the same colour of the grass." The police identify he is very upset. Sgt [O] speaks to others and a short time later informs [RC] that he is under arrest for the purpose of a blood and urine test. Any further conversation had with this person would have been inadmissible due to no caution and the lack of presence of an adult of [RC]'s choosing.

The [D] family's barrister, [name] is responding to specific questioning from the reporter regarding what police on the scene asked the driver about his alcohol consumption. On review, we believe this was clear from the context in which the questions and answers were presented in the broadcast. The ABC understands, at that stage, police were acting on an initial determination that it was a road related area, and proceeded to breath test the driver. Four Corners confirmed, based on the briefs of evidence, statements and transcripts submitted during the CoroniaI Inquest, that the driver was not asked whether he had been drinking at the party;

REPORTER: The police counted up to 60 cars and the gates were open. They quickly decided the location resembled a public car park, and treated it as a road related area. This meant they could pursue driving offences and legally breath-test the driver. By now, nearly two hours have passed since [RC] ran over [WD] and [EW].ACTOR (POLICE OFFICER): Have you had a drink in the last 15 minutes?REPORTER: Did police ask, at that moment, did they ask the driver [RC] have you been drinking?[The D family lawyer]: I think the question that they asked him from memory is, have you had a drink in the last fifteen minutes, rather than have you been drinking.REPORTER: We're talking about a potential double fatality here at the moment...[The D family lawyer]: Correct.REPORTER: ... police arrive.[The D family lawyer]: Correct.REPORTER: And the only question they ask of the driver...[The D family lawyer]: Is have you been drinking in the last fifteen minutes.REPORTER: Fifteen minutes.[The D family lawyer]: And um that, that's correct.REPORTER: The police didn't ask [RC] if he'd been drinking at the party. And that morning [RC] blew zero.

The NSW Police Force Code of Practice for Crime states, "When you arrest a child take reasonable steps to tell the parents or guardian immediately". A copy of this section of the Code of Practice for Crime was referenced in the Statement of Superintendent [name] and a copy annexed to his statement.


The program by absence of reference to the above "Code of practice for Crime" infers impropriety, when in fact the officers were discharging their obligations. In accordance with the code officers are also required to consider the child's welfare.

We note your concern that this section of the report "infers impropriety" on the part of the officers, because the program did not refer to the NSW Police Force Code of Practice for Crime, which instructs officers to take reasonable steps to contact the parents or guardian of a minor immediately upon arrest. Four Corners has explained that it was not their intention to suggest it was improper for [RC] to be afforded the opportunity to contact his father at that time, regardless of the fact that he was a police officer formerly stationed in the area. The program states this segment of the report was focused on the [D] family's lawyer, [name], responding to questions from the reporter about the chain of events leading to [RC]'s conversation with his father. Four Corners has responded to your concern with the following statement; "NSW Police declined the opportunity to respond to questions about this phone conversation and any relevant Code of Conduct by way of repeatedly rejecting our requests for an interview."

Audience and Consumer Affairs has taken consideration of the fact that the program made it clear the Coroner found the police investigation to be "thorough and adequate, and not compromised by the fact that [RC] is the son of a police officer who was formerly stationed at Orange". We note that it was also made clear that [RC] was under age and severely distressed by what he had done, so that it was to be reasonably expected that the police would seek at the earliest possible opportunity to have [RC] contact his parents.

Audience and Consumer Affairs is satisfied that this aspect of the report is in keeping with the accuracy standards in section 2 of the ABC Code of Practice.

For what purpose would the swag be forensically examined? Examinations are conducted for specific purposes. Identity of the deceased and the vehicle involved were not in dispute.

Four Corners has provided the following statement in response to your question;The reporter was systematically reporting what occurred with the police investigation. In this case, the swag was not forensically examined. Furthermore, the reporter specifically wrote to NSW Police: "We have been informed that the swag wasn't forensically examined. Why wasn't it forensically examined?" NSW Police did not provide an answer to this question.

[GG] produced 43 photographs in the brief of evidence. The Forensic Services Sergeant produced an additional 20. 63 in total being produced.

The program has advised that its research of the evidence and materials presented at the coroniaI inquest confirmed that, of the 43 photographs taken by [GG], only three were specific subject photographs of the ute. Four Corners has explained that the reporter specifically asked NSW Police to provide reasons why [GG] did not examine the contents of the ute, but this question went unanswered.

Not every person who attended the party could assist investigators. Only a limited number of those attending the party had relevant evidence to offer, although the vast majority of attendees were spoken to by police. This is outlined at paragraph 31 of [GG’s] statement dated 29 March 2011.

Four Corners has advised that it relied on the list of witness statements presented at the coroniaI inquest to confirm that [name] was the first to give a statement to police at 3 pm on the day of the incident. Over the next two weeks, another 23 statements are taken (from 28 Jan -12 Feb). Five statements are taken in June (11-21 June). Sixteen more statements are taken from 23 November 2010 to 28 March 2011. Police telephone 37 more party goers in February and March 2011. A total of 17 party goers are never contacted.


A version was obtained from the driver. Albeit brief this discharged any obligation [RC] may have had if the area concerned was in fact a road or road related area.

It was made clear in the report that police took a brief statement from [RC] but the program understands that statement did not amount to a full version of the events. We believe it is clear from this segment of the report that [the W family lawyer] is again raising the anomalies of the law as to whether an incident occurs on a road, or road related area or private property.

Under the traffic legislation police have 4 hours in which to obtain the blood and urine sample. A version was obtained from the driver. Albeit brief this discharged any obligation [RC] may have had if the area concerned was in fact a road or road related area. Once [RC] complied with the direction to supply a sample of blood and urine police had no further power to detain him. Police have no power to arrest for the purpose of questioning. This issue was addressed in closing comments by the relevant lawyers at the inquest. The timing of questioning a person of interest will vary from case to case. This is an operational/investigative decision and a matter that was canvassed during the inquest.

The reporter is factually reporting the chain of events that occurred; when the blood and alcohol samples were taken, and when [RC] was allowed to return home. Four Corners has explained that specific questions about the blood/alcohol samples and decision to send [RC] home were provided to the NSW Police but no answers were received.

The ultimate independent assessment is the Coroner and as explained by the Coroner [RC] had a right of silence which was exercised. Limited questions that did not infringe the Evidence Act or the rights of [RC] were put to him. See Section 13 of the Children (Criminal Proceedings) Act.

[DW] QC is questioning why the driver was not formally interviewed at the time the incident occurred, or soon thereafter, as this option was open to police. Four Corners notes that this view is supported by NSW Police's Director of Investigations and Field Services, [name], in his review of Superintendent [name’s] statement, dated 26 May 2011. In [his], he states: "As a former Homicide Detective it was my practice to attempt to interview suspects or persons of interest as soon as possible to avoid collusion or witness contamination. I personally would have sought to interview [RC] on the date of the incident but I agree with Superintendent [name’s] statement that 'often investigators will not interview persons of interest until they are appraised of as much information as possible.' There is no right or wrong answer to the question posed as either scenario could adversely or positively affect an investigation."

Four Corners also noted the statement provided by [policemen’s name], in which the following is recorded: [the two policemen] take [RC] back to Orange police station after he had provided the sample at the hospital. At the station, [one of the policemen] calls [GG] to ask him if [RC] should be retained for questioning and [GG] said: "No. I don't need to speak to him today. I will talk to him another day, let him go home."

Furthermore, Four Corners has explained that it sent NSW Police a specific question asking for reasons why [RC] was not interviewed at the time of the incident. No response was provided to the program.

COPS event E39631714 includes the narrative which outlines the circumstances of the incident. This event report is included in the brief of evidence Vol 1 Tabulation 18. At Paragraph 9 of that event narrative it states that a breath test was conducted and that a blood and urine sample was taken at the Orange Base Hospital.

The 4 corners program is incorrect in claiming that [GG] stated there was no blood sample particularly when the narrative clearly articulates that it was taken.

Four Corners was given the document provided to [WD’s mother] where it clearly showed that NSW Police entered "N" for NO for the blood sample taken. This section of the report


accurately conveys her attempts to investigate her suspicions that [RC] had been drinking, after she had been told that alcohol was not a factor in the incident. In this section of the broadcast, the reporter describes [WD’s mother’s] discovery that there had in fact been a blood alcohol sample taken at the hospital and her request for it to be tested. The ABC understands NSW Police concede that an error was made by [GG] in entering N rather than "Y". Four Corners has advised that a specific question about this was put to NSW Police, affording an opportunity to explain its understanding of the matter. That question was not answered.

We note the report goes on to immediately note that a blood alcohol sample was taken, that it was examined by a forensic pathologist, [name], and that [RC] was found to be over the legal limit for licensed drivers. We are satisfied that this is an accurate version of events, that the program made reasonable efforts to seek an explanation from police for inclusion in the report, and that it was made clear to the audience that [RC] had indeed been tested for his blood alcohol reading.

[The forensic pathologist] places caveats on her opinion. This opinion is assuming alcohol is consumed after midnight/lam but before 4.30am and considers the reading of 0.079 to be "most likely". However the next paragraph revises this reading down to 0.054 if [RC] consumed food during the party. [The forensic pathologist’s] evidence is not as definitive as represented in the program.

Four Corners quoted directly from [the forensic pathologist’s] report. In the two examples cited by [her], both blood alcohol levels are in excess of the legal limit. We are satisfied the report's reference to [the forensic pathologist’s] assessment is in keeping with the accuracy standards in section 2 of the ABC Code of Practice.

To prefer the charges as outlined by [the W family lawyer] the incident needs to occur on a road or road related areas. Again this was canvassed during final submissions.

They couldn't be due to the issue of road and road related area. The Coroner commented that the view of the police that it was a road related area "waned".

We believe it is clear that [the W family lawyer] is responding to the established evidence that [RC] was over the legal alcohol limit, as prescribed for a Learner driver. Critically, at the time [RC] was breath tested, police on the scene were operating on the basis of an initial ruling that it was a road related area. Therefore, the driving charges noted by [the W family lawyer] were open to police.

Four Corners has noted the comments made by NSW Police Director Investigations and Field Services [name] in his letter dated 26 May 2011: "I agree with Superintendent [name] that the investigator has failed to follow the Police Handbook Guidelines specifically 'if an investigator believes that it is inappropriate to instigate proceedings against a driver for an indictable offence but believes summary matters should be instigated following a fatal or serious motor vehicle accident, then there is a requirement to forward a brief of evidence to the Police Prosecutions Command for advice.' From the material before me, I can see no evidence that the investigators have sought legal advice in regards to this investigation."

This comment takes the evidence out of context. This evidence related only to the possible driving offences of "learner unaccompanied" that occurred well prior to the incident. Again this was canvassed in closing comments by legal counsel at the inquest. The comment does not relate to any offence in respect to the deaths of [EW] and [WD].

We believe the context makes it clear that solicitor [The D family lawyer] is discussing his recollection of [GG’s] answers to questions at the inquest regarding why driving charges were not pursued, and the previous commentary from solicitor [the W family lawyer] makes it clear that [The D family lawyer] is not referring to the deaths of [EW] and [WD];

REPORTER: He was well over the legal limit for a licenced driver, let alone the limit of zero for an L-plater.


[the W family lawyer]: As soon as that occurs it's a standard drink driving charge. The charges could have been as simple as neg drive. It could have been drink driving.REPORTER: And none of these were pursued?[the W family lawyer]: No, no, not even the simplest of charges.

[The D family lawyer]: At the inquest [GG] said that he deliberately made a decision not to lay them. This is surprising but, it's what he said he did.

Four Corners has explained that it was also present during this questioning at the inquest, and [GG] clearly stated it was a deliberate decision not to lay certain charges relating to driving offences. We are advised the reporter also wrote to NSW Police, prior to broadcast, and specifically asked for details about [GG’s] decision not to charge [RC] with any driving/traffic offences. Four Corners has advised that NSW Police failed to answer this question.

At paragraph 93 of [GG’s] statement the officer outlines the two schools of thought in respect to whether the area was a road related area. He does not reach a conclusion in that statement. He did not overturn any decision in respect to this issue although he did have an opinion which was given in evidence.

Four Corners has explained that its reference to the initial assessment by attending officers, that it was a road related area, came from [a policeman’s] witness statement, where he describes the assessment made by [another policeman] and the subsequent decision to breath and urine test. Further confirmation that the initial assessment was that it was a road related area, comes from the testimony provided to the coronial inquest by [the policeman]: "I'd say that the paddock was open to be used by the public for the purpose of parking motor vehicles so I would deem it myself as a road related area."

It is an established fact that, initially, police saw the incident as occurring on a road related area. This view was subsequently changed or overturned by [GG]. Four Corners has explained: "NSW Police also failed to respond to our specific questions sent prior to broadcast: 'When did [GG] overturn Inspector [name’s] ruling and decide it wasn't a road related area? On what material was he relying on? Who did he consult before making this decision? Please provide specific date of decision and details of what consultation (as was required) and advice he sought and received'."

We understand there is still no answer to this question, including in Detective [GG’s] statement. Furthermore, the program notes that Superintendent [name], in his review, clearly states that Detective [GG] did come to a conclusion on the issue of a road related area: '104. In respect to the issue of the incident occurring on a 'road related area' the investigator came to the conclusion that it was not a road related area.'

Superintendent [name] did not "declare it was an honest oversight." The Coroner stated that Superintendent [name] surmised it was an oversight.

Four Corners has a copy of Superintendent [name’s] statement, which was reproduced in graphic and broadcast. In it, Superintendent [name] writes: '102. It would appear that the possibility that these offences were committed were not further examined and have been an oversight with the focus of the investigation being the deaths of [WD] and [EW]. I believe this was an honest oversight and nothing sinister is inferred from it." Superintendent [name] directly and clearly declares in his own document that it was 'an honest oversight'.

We are satisfied this fact was presented in context, with sufficient distinction made between the officer's focus on the incident that caused the deaths, and the earlier driving offences on the road beyond the property where the party occurred, that would have been subject to "driving offences under traffic laws";

REPORTER: The review was done by Superintendent [name] - the Commander in charge of Orange police and Detective [GG’s] boss. His review overwhelmingly supports Detective [GG’s] investigation, except for his failure to consider charging [RC] with any driving offences under traffic laws. Superintendent [name] declared it was "an honest oversight", because Detective [GG] was focussed on the deaths of [WD] and [EW].


Detective [GG] spoke to [RC's] mother and she informed him that on legal advice any approach by the police should be directed to his lawyer. His lawyer was spoken to the same day which was in February 2010. In March 2010 the lawyer for [RC] was again spoken to. A third approach was then made to the lawyer’s office to speak with [RC]. A further approach was made to [RC’s] mother and on legal advice police were informed that [RC] would not speak with police. [RC] exercised his right of silence as provided by the Evidence Act s139.

We note the advice to Detective [GG] from [RC’s] mother, that his approaches should be directed to his lawyer. There was no editorial requirement to include that detail within the context of the reporter's brief reference to the inquest resuming and noting the fact Detective [GG] gave evidence;

REPORTER: Inside court, Detective [GG] gave evidence. He denied there ever was a conflict of interest. He didn't work with [RC’s] father. Detective [GG] also said he did attempt to interview [RC]. He phoned his home twice.

The ABC understands that Detective [GG] first phoned [RC's] home on 26 February 2010 to obtain a statement (one month after the event); and again 'some time later' after [RC’s ] lawyer did not respond to his calls. On both occasions he spoke with [name]. Detective [GG]'s approaches to [RC’s] lawyer was not material to this aspect of the report.

Four Corners did not put all of the responses provided by the Police on their website.

Four Corners has provided the following explanation; "Four Corners placed the statement provided by the NSW Police on 18 October 2013, on its website. When checking the website, the program discovered that one of the dot points had not been included. It said "It is factually incorrect to say that the driver's father was a friend of the investigating officer. They had limited contact, worked in separate buildings in separate specialist areas and didn't socialise together." This oversight has been corrected and the full statement is now on the website.

The ABC submitted the following to the ACMA (11 September 2014):

Accuracy

In keeping with the Code requirements, Four Corners made reasonable efforts to ensure that material facts were accurate and presented in context.

In relation to the statements made by [the W family lawyer] and [DW QC] and identified by ACMA [relating to whether or not a version of events had been obtained from [RC] by Police], these efforts included:

- Reviewing the report of Magistrate [name], Deputy State Coroner, which identified as an ‘uncontroversial fact’ that ‘[RC] never provided a statement to investigating Police as to his version as to what occurred that fateful evening’.

- Conducting detailed interviews with [the legal representatives of the victims’ families], both of whom had represented the families of [EW] and [WD] at the Coroner’s inquiry, and were familiar with the relevant materials.

- Seeking an interview and information from the NSW Police, including asking the following questions:

o Why did Police decide to send [RC] home on the morning of the incident without requesting a statement from him or an interview with him? He had a support person available.

o Please list the specific dates that [GG] approached [RC] for a statement/interview.


o Was there a crash scene investigation? If so, what was it, who did it, when was it done? There is confusion with the inquest evidence given by [GG] – he says Bathurst weren’t called and then said they were called. Which version is correct please?

The request for interview was declined. The statement provided by NSW Police did not address the questions set out above or offer any further information about the extent to which NSW Police had questioned [RC]. Details of the questions asked by the program and NSW Police’s response can be found here - http://www.abc.net.au/4corners/documents/Orange2013/Statement-NSWPolice.pdf.

In relation to the statement made by the reporter that the official Police incident report stated that there was no blood alcohol sample, the program’s review of [GG]’s report constitutes reasonable efforts to ensure accuracy. The document was shown on screen, including the relevant text: ‘Blood Alcohol Sample? N’. The complainant does not dispute that the report incorrectly stated that no blood alcohol sample was taken. The program made clear that blood alcohol samples were in fact taken. Also the program notes that in its list of questions sent to Police before the program was broadcast, they specifically asked:

o Why did [GG] declare there was no blood sample taken from the driver in the event/incident report?

Again, NSW Police did not respond to the program’s direct question.

You have also asked that the ABC’s response specifically address the complainant’s reference to Sgt [O’s] statement. The program has explained that two sections of the program are relevant. In the first section, transcribed below, the program focused on a question Police asked about [RC’s] alcohol consumption at the party that night. Based on transcripts of evidence and materials admitted in the Coronial Inquest, the program was aware that [RC] was not asked about his drinking history that night nor any particulars about his alcohol consumption. He was only asked whether he had had a drink in the 15 minutes prior to Police arriving on the scene, despite the driving incident occurring almost two hours earlier:

REPORTER: The Police counted up to 60 cars and the gates were open. They quickly decided the location resembled a public car park, and treated it as a road related area.

This meant they could pursue driving offences and legally breath-test the driver.

By now, nearly two hours have passed since [RC] ran over [WD] and [EW].

ACTOR (POLICE OFFICER): Have you had a drink in the last 15 minutes?

REPORTER: Did Police ask, at that moment, did they ask the driver [RC] have you been drinking?

[The D family lawyer]: I think the question that they asked him from memory is, have you had a drink in the last fifteen minutes, rather than have you been drinking.

REPORTER: We're talking about a potential double fatality here at the moment...

[The D family lawyer]: Correct.

REPORTER: ...Police arrive.

[The D family lawyer]: Correct.

REPORTER: And the only question they ask of the driver...


http://www.abc.net.au/4corners/documents/Orange2013/Statement-NSWPolice.pdf

[The D family lawyer]: Is have you been drinking in the last fifteen minutes.

REPORTER: Fifteen minutes.

[The D family lawyer]: And um that, that's correct.

REPORTER: The Police didn't ask [RC] if he'd been drinking at the party. And that morning [RC] blew zero. According to the breathalyser he didn't have a drop of alcohol in his blood.

(Sound of breathalyser beep)

But the reading was false. We now know the Police were using a broken breathalyser - this document shows it wasn't detecting any alcohol at all. It was sent off for repair one week after the incident.

In the next relevant section, Four Corners examines what happened during and after [RC] was taken to the hospital for a blood and urine sample, not what questions were asked at the scene of the incident on the property in Molong. The program had moved further along in time, chronologically, and had left the scene of the incident:

REPORTER: Senior Constables [names] arrived on the scene. They were told to take the driver to hospital for a blood and urine test.

…

REPORTER: At 7:00am, as Constables [names] left Ridgeview with [RC], the detective in charge, Senior Constable [GG], arrived and began to document the area. His photos show the ground is scattered with empty rum cans and beer bottles.

[WD and EW’s] swag is up close next to the railing of the sheep pen, well away from the rows of parked cars. Next to it, [WD’s] Australia Day sombrero hat. [EW’s] rubber thongs. The swag wasn't forensically examined.

[GG] took only three photos of the car. Two of them show a white esky sitting in the tray. But [GG] didn't venture any closer, choosing not to look inside.

Instead of examining the car and its contents, according to his handwritten notes, [GG] took a handful of witness names and phone numbers before leaving the scene. Over the coming weeks, Police took statements from only a quarter of the partygoers.

Beyond that there was no forensic investigation.

W family lawyer: If it had happened on a highway with two people dead and it was on the front page of every of paper and on the national news, there would have been Police investigators crawling all over it. There would have been photographs, measurements, reconstructions, they would have obtained a, at least some version of events from the driver.

REPORTER: But they didn't. Almost three hours after the incident, a blood and urine sample was taken.

The detective in charge [GG] then sent [RC] home.

DW: It makes one wonder whether or not that rigorous independent assessment that ought to have been applied to this case, was in fact brought to bear, and simply put I don't think it was. The material ought to have been put to the young driver. He was


asked nothing about the circumstances. I don't think he was asked a question about the circumstances of the accident, and to me that seems to be extraordinary.

The program was now at a time some three hours after [EW] and [WD] had been run over. Both [the W family lawyer] and [DW QC] are discussing what they would expect of a Police investigation in circumstances where two people had been critically injured. These are clearly the opinions of [the W family lawyer] and [DW QC]: expectations about what could have or should have happened are quite distinct from statements about what did happen. An ordinary reasonable viewer would not confuse a contributor’s expectation with a statement of fact. [The W family lawyer] said he would expect detailed forensic investigation and a version of events to be taken from the driver. [DW QC] said that he would expect rigorous independent assessment of the circumstances, with material collected from that assessment to be put to the driver for his response. We note that [DW QC’s] language – ‘I don’t think he was asked a question…’ - signals to viewers that he is conveying his opinion. As it happened, [RC] was not asked further questions by the officers who took him to hospital. No Police interview was conducted with him after he had provided blood and alcohol samples. Instead, he was sent home. The posing of a single question hours earlier at the scene of the incident – ‘What happened?’ – and acceptance of the brief response – ‘I didn’t see them’ – falls well short of the kind of investigation contemplated by [The W family lawyer] and [DW QC]. It was not materially misleading for the program to omit reference to it.

Impartiality

The Four Corners program displays the hallmarks of impartiality: fair treatment, open mindedness, and a balance that followed the weight of evidence. NSW Police were given repeated opportunities to express their perspective. These opportunities were largely declined. To the extent that NSW Police set out its perspective in the written statement provided, the key elements were incorporated into the program. In particular, the program noted: ‘The Coroner has since reported that she was satisfied that Police investigators were thorough and adequate, and not compromised by the fact that [RC] is the son of a Police officer who was formerly stationed at Orange.’

Impartiality does not require that every perspective receives equal time, nor that every facet of every argument is presented. In this case, the program’s capacity to present the NSW Police perspective was constrained by NSW Police’s decision to limit communication with the program to a brief statement.


Attachment CSome considerations to which the ACMA has regard in assessing whether or not particular content is factual material for the purposes of broadcasting codes of practice

In practice, distinguishing between factual material and other material, such as opinion, can be a matter of fine judgement.

The ACMA will have regard to all contextual indications (including subject, language, tenor and tone and inferences that may be drawn) in making its assessment.

The ACMA will first look to the natural and ordinary meaning of the language used.

Factual material will usually be specific, unequivocal and capable of independent verification.

The use of language such as ‘it seems to me’ or ‘we consider/think/believe’ will tend to indicate that the content is contestable and presented as an expression of opinion or personal judgement. However, a common sense judgement is required and the form of words introducing the relevant content is not conclusive.

Statements in the nature of predictions as to future events will rarely be characterised as factual material.

Statements containing hyperbole will rarely be characterised as factual material.

The identity of the person making a statement (whether as interviewer or interviewee) will often be relevant but not determinative of whether a statement is factual material.

Where it is clear in the broadcast that an interviewee’s account is subjective and contestable, and it is not endorsed or corroborated, their allegations will not be considered as factual assertions.

Where an interviewee’s stance is separately asserted or reinforced by the reporter or presenter, or proof of an allegation is offered so that it becomes the foundation on which a program or a critical element of the program is built, it may be considered a factual assertion.4

Sources with expertise may be relied on more heavily than those without, in determining whether material is factual, but this will depend on:

o whether the statements are merely corroborative of ‘lay’ accounts given by other interviewees,

o the qualifications of the expert,

o whether their statements are described as opinion,

o whether their statements concern past or future events5 and

4 See investigation 2712; Channel Seven Adelaide Pty Limited v Australian Communications and Media Authority [2014] FCA 667;


o whether they are simply comments made on another person’s account of events or a separate assertion about matters within their expertise.

5 See investigations 3066, 2961


media/Broadcasting... · Web viewThe photographs conveyed a fact concerning the tyre...

Documents

Transcript of media/Broadcasting... · Web viewThe photographs conveyed a fact concerning the tyre...