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Winchcombe and Television New Zealand Ltd [2023] NZBSA 7 (27 February 2023)

Last Updated: 14 March 2023

Winchcombe and Television New Zealand Ltd - 2022-126 (27 February 2023)

Members Susie Staley MNZM (Chair)

John Gillespie

Tupe Solomon-Tanoa’i

Aroha Beck

Dated 27 February 2023

Complainant Caleb Winchcombe

Number 2022-126

Programme Swipe with Caution

Broadcaster Television New Zealand Ltd

Channel/Station TVNZ 1

Standards Codebook 2022: Accuracy

Codebook 2022: Fairness

Warning — This decision contains references to sexual violence.

Not Upheld: Accuracy, Fairness

Background

[1] In late 2020, Caleb Winchcombe was sentenced to eight years and eight months’ imprisonment for various charges including sexual violation and assault on a female.^[1] In dismissing an appeal regarding the sentence in late 2021, the Court of Appeal summarised the offending as follows:

[3] The offending occurred when Mr Winchcombe and the victim met up in person for the first time after communicating online. They went to Mr Winchcombe’s house and engaged in some consensual sexual activity. However, when the victim told him to stop, Mr Winchcombe became enraged and violent. He then engaged in 10 separate sexual acts against the victim without her consent...

[4] The sexual offending was accompanied by additional and sustained violence as the victim screamed “no”, tried to push him off and sobbed. He pulled her hair and hit her repeatedly as well as biting her repeatedly about the face. He punched her about the face and head and also bit her breast. During one of the rapes, he thumped her head against the headboard of the bed causing her to momentarily lose consciousness.

[5] At one point, he showed the victim what she believed to be a gun. It was in fact ammunition.

[6] When he had finished, he apologised to the victim and offered to transfer $2000 into her bank account if she didn’t tell the police what had happened.

...

[8] The emotional and psychological impact of the offending on the victim was profound and life changing. She has been diagnosed with post-traumatic stress disorder. Her physical injuries included bruising and bite marks to her face and body as well significant pain to her cheek bone.

The broadcast

[2] Swipe with Caution, broadcast on 20 September 2022, is a documentary advertised as taking ‘a closer look at dating apps in New Zealand, and how they have transformed the way Kiwis find love over the past decade.’

[3] The broadcast discussed the use of online dating apps, including interviews with relevant experts and people with experience of dating apps. It also included example messages sent through dating apps (introduced earlier in an on-screen message as being ‘real’) and more detailed discussions around specific cases, including that of Grace Millane.

[4] One case discussed was Winchcombe’s. The relevant segment was introduced with the following on‑screen caption:^[2]

The account by this victim is real.

These are their words, spoken by an actor.

[5] The segment included:

• Ms X,^[3] through an actor, recounting how she met Winchcombe through Tinder, and the events of that night.
• Comments from a detective regarding injuries sustained from the assaults.
• Discussion of the trial process, including from Ms X and the detective.
• Comments from a criminology lecturer, a former dating app user, and a detective on the role of consent and the use of dating apps.

[6] Ms X noted Winchcombe finished work earlier that day, so had ‘already started drinking’ by the time she finished work. She noted Winchcombe ‘handed me a Woodstock because he wanted me to scull^[4] it back to catch up and I thought naa because I wanted to be able to drive.’ She then stated:

We were watching TV and he began to put his hand on my leg and we kissed and he said, “Do you want to go to the bedroom?” It started out consensual, but then he was biting me, he was biting my face and blood was dripping down at this point. So I got up and he literally pulled me back down by my hair. And that's when I said no. I was saying, please stop. But he just wasn't listening. He was strangling me. I lost consciousness for a couple seconds and then he went to the bathroom and when he came back, he looked at me and he said, “Did I do that to you?” And I just sort of nodded. And he sat on the bed and he said, “I feel like I just raped you.” And I was just too scared to speak. And then he did it again. After he said, “I feel like I just raped you”, he did it again.

[7] The broadcast transitioned to a detective, who noted Ms X had ‘swelling to her cheek and bruising on her face, and she also had some bruising type marks on her body.’

[8] The actor was shown with facial injuries as the detective spoke. The injuries seen included bruising (particularly around the left eye), and a bite mark across the left cheek, breaking some skin in places.

[9] The broadcast then focused on the trial process, noting ‘the jury came back with some guilty verdicts for the assaults, but they could not reach any decision on the sexual charges.’ This led to a retrial, with Winchcombe pleading guilty prior to the start of the second trial.

The complaint

[10] Caleb Winchcombe, through his representatives, complained the broadcast breached the accuracy and fairness standards of the Code of Broadcasting Standards:

Accuracy

• Ms X’s narrative was presented ‘as matters of proven fact at the trial rather than her opinion. The presentation in that the charges and Court proceedings were interwoven with the actor's dialogue were such to suggest that what the actor said was factually accurate. However, the reality was that was her recollection of events or narrative, but not the proven facts that formed the basis of the criminal matter before the Court.’ He went on to note ‘If the producers... wanted to present [Ms X’s] version of events they were entitled to do so. However, they needed to clearly delineate her account and the proven facts in the criminal proceedings. Instead, her opinion was [presented] as proven facts.’
• The complainant points to four matters that were allegedly inaccurate or otherwise misleading in Ms X’s narrative:
  • Woodstock – the District Court sentencing decision noted Ms X ‘consumed an alcoholic premix drink’ upon her arrival; there is no suggestion Winchcombe tried to pressure Ms X to drink contrary to what was said in the broadcast. This inference could not have been made from the facts.
  • Strangulation – Winchcombe was not found guilty of strangulation; the relevant charge was withdrawn and the summary of facts did not make reference to a strangulation. It is irrelevant Ms X provided this evidence at the trial (given the Court’s findings).
  • Bleeding face – Ms X stated Winchcombe had bitten her face, resulting in blood dripping down her face. The Court’s decision on this point refers to bruising and redness, ‘but not breaking of the skin to allow blood to drip down the complainant’s face.’ The alleged injuries were ‘not consistent with the findings of the Court.’
  • Injuries shown – the visual replication of injuries sustained, and particularly ‘bite marks that drew blood’ were more extensive than those received by Ms X.
• The broadcast ‘legitimised the comments of’ Ms X and the detective by noting Winchcombe was convicted, ‘suggesting that everything said was consistent with the findings of the jury/Court. It was not.’

Fairness

• Due to the above inaccuracies, the complainant considered he was not presented fairly. The presentation of Ms X’s opinions ‘packaged as matters of proven facts served to unfairly deal with Mr Winchcombe.’

[11] The complainant considered the severity of the breach heightened in this situation as the broadcaster ‘knew that the above information was not supported by factual findings in the criminal proceedings’, referring to the sentencing notes.

[12] We note we have received a copy of the sentencing notes, which is subject to some publication prohibition orders. While we have referred to the notes, we do not reproduce any quotes from those notes in this decision to adhere to the prohibition orders. In any event, for the reasons that follow, we did not consider the reproduction of any part of the notes necessary to properly consider this complaint.

The broadcaster’s response

[13] TVNZ did not uphold the complaint. In responding to the referral, TVNZ endorsed submissions from Great Southern Television Ltd (Great Southern), the producer of the broadcast. At a high level, Great Southern noted:

We are only concerned about that part of the documentary dealing with Mr Winchcombe. That part was accurate in relation to all material points of fact, and did not materially mislead the audience by giving a wrong idea or impression of the facts. It correctly reflected the evidence given in Court by [Ms X]. It is irrelevant whether or not what she said in her evidence subsequently formed part of an agreed statement of facts. The documentary told her story, not the story presented to the Court on the sentencing of Mr Winchcombe.

...

...it must have been appreciated that the documentary overall, and the part to which complaint is made was not a report of Court proceedings as is commonly understood... the documentary presented [Ms X’s] narrative of what took place on the Tinder date. The reference to the Police investigation, arrest, and Court case add to that by informing the viewers what took place after or as a result of the violent abuse [Ms X] suffered. That is, [Ms X] having been compelled to give evidence in Court (and her feelings about that), and then Mr Winchcombe’s subsequent plea of guilty just prior to the second trial as a result of the Police having access to his cell phone messages. The reference to the Court proceedings and convictions did not in any way misrepresent the overall thrust of what took place on this Tinder date.

[14] As the alleged breach of standards rely on the same allegations of factual inaccuracies, Great Southern addressed the standards together. Responding to the specific submissions, it noted:

Woodstock

• Ms X did not say she had not been drinking in the documentary, she ‘says that she didn’t want to “[scull] it back to catch up” because she wanted to be able to drive. This is quite a different point.’ The sentencing notes refer to Ms X consuming an alcoholic premix drink when she arrived while Winchcombe had been drinking earlier.
• It ‘is irrelevant whether the summary of facts precisely aligns with what [Ms X] said in the documentary. More important is that what she said in the documentary aligns with her sworn evidence. An inference can readily be drawn that Mr Winchcombe who had already been drinking alcohol prior to [Ms X’s] arrival, wanted her to [scull] the Woodstock back to catch up with his alcohol drinking.’
• This is Ms X’s ‘recollection of events’. TVNZ also referred to Ms X’s correspondence with Winchcombe, noting she said ‘she is keen to have a drink but also says “I bet I won't even drink that much,” to which he replies, “We getting wasted”. He also says in the messages “You better drink an all'. Also, in [Ms X’s] account to police “She had remained sober during the entire night, and he had been drinking”.’

Strangulation

• Ms X’s recollection of being strangled is consistent with evidence given at trial, supporting the broadcaster’s reasonable efforts to ensure accuracy. In any event, ‘In the overall context it is irrelevant that the strangulation charge may have been withdrawn considering the enormity of the other attacks on [Ms X] as referred to in Judge Northwood’s Sentencing Notes. As with any case of multiple charges, a particular [allegation] can be subsumed in the overall context of other closely related charges.’
• The detective’s comments ‘in context do not lead to the conclusion that the jury convicted Mr Winchcombe, or that he pleaded guilty to the allegation of strangulation.’
• ‘It is unfortunate that complaint should be made about this particular aspect of [Ms X’s] narrative considering the overall violent attacks on [Ms X’s] body as referred to in Judge Northwood’s Sentencing Notes.’

Bleeding face

• ‘Whether or not the Sentencing Notes explicitly referenced bleeding is of no consequence in the circumstances described above by the Judge [that Winchcombe repeatedly bit Ms X, among other things].’ The detective ‘talked generally about what took place. Any suggestion that the public was misled on the circumstances of what actually took place is disingenuous, to say the least.’

Ms X’s injuries

• Ms X ‘was viciously assaulted on numerous occasions in a sexual context - little more needs to be said. Suffice to say Mr Winchcombe acknowledged himself that he bit [Ms X] multiple times, and the image presented in the documentary is a graphic visualisation of that.’
• Great Southern was declined access [by the Court] to the photos of the wounds inflicted by Mr Winchcombe. If allowed, it is likely that such photos as real images would have been more disturbing to viewers than what was portrayed in the documentary.’

[15] Great Southern requested the Authority order the complainant to compensate it for legal costs incurred. This was on the basis the complaint appeared to be a way to re-victimise Ms X ‘by an indirect collateral attack on the evidence she gave in Court that resulted in his convictions at trial, and subsequently pleading guilty to rape.’ We address this point later in our decision.

The standards

[16] The purpose of the accuracy standard^[5] is to protect the public from being significantly misinformed.^[6] It states broadcasters should make reasonable efforts to ensure news, current affairs or factual content is accurate in relation to all material points of fact, and does not mislead. Where a material error of fact has occurred, broadcasters should correct it within a reasonable period after they have been put on notice.

[17] The fairness standard^[7] protects the dignity and reputation of those featured in programmes.^[8] It ensures individuals and organisations taking part or referred to in broadcasts are dealt with justly and fairly and protected from unwarranted damage.

Our analysis

[18] We have watched the broadcast and read the correspondence listed in the Appendix.

[19] As a starting point, we considered the right to freedom of expression. It is our role to weigh up the right to freedom of expression against any harm potentially caused by the broadcast. We may only intervene when the limitation on the right to freedom of expression is demonstrably justified in a free and democratic society.^[9]

[20] There is high public value in both the broadcast as a whole, dealing with the risks associated with using dating apps (particularly following the high-profile case of Grace Millane)^[10] and the particular segment, given the importance of allowing survivors to tell their stories as they recollect them. Therefore, a comparable level of harm would be required to intervene and restrict the right to freedom of expression. For the reasons that follow, we do not consider the broadcast reached that threshold.

[21] As the concerns raised under the fairness standard are also founded on the alleged inaccurate representations, we focus our analysis on the accuracy standard and deal briefly with issues of fairness at paragraphs [27] - [29].

Accuracy

[22] Determination of a complaint under the accuracy standard occurs in two steps. The first step is to consider whether the programme was inaccurate or misleading. The second step is to consider whether reasonable efforts were made by the broadcaster to ensure that the programme was accurate and did not mislead. To ‘mislead’ in the context of the accuracy standard means ‘to give another a wrong idea or impression of the facts’.^[11]

[23] The standard is concerned only with material inaccuracies. Technical or other points unlikely to significantly affect viewers’ understanding of the programme as a whole are not considered material.^[12]

[24] The broadcast was a factual programme about the use of dating apps, illustrating harms through multiple case studies with comments from experts and dating app users throughout the broadcast. The relevant segment in this instance was introduced with the words ‘these are their words, spoken by an actor’. This clarifies that the events are being depicted from the survivor’s perspective.

[25] The majority of the complaint concerns the alleged inconsistencies between the broadcast and the Judge’s sentencing notes. However, we understand, from Great Southern, what was said in the documentary aligned with sworn evidence given (which was not directly reproduced in the Judge’s notes). The omission of a particular fact from the Judge’s notes does not make that fact inherently inconsistent with those notes. It is well established a Court’s judgment is not required to address every factual argument, or piece of evidence, before it.^[13]

[26] More importantly, even if the specific matters identified by the complainant were accepted as inaccurate, this would not, in our view, render the broadcast materially inaccurate. We consider the allegations would not have significantly affected viewers’ understanding of the segment, let alone the programme as a whole. Factors supporting this finding include:

• The complaint concerns one segment/case study in the context of a one hour documentary highlighting the risks associated with using dating apps. Within this context, viewers were likely to place less weight on the specific details in the account given by Ms X than on the overarching message, being Ms X’s experience using a dating app.
• Regarding the specific allegations made:
  • Woodstock – Although Ms X might have stated she was ‘keen for a drink’ in her earlier correspondence, which is potentially inconsistent with her statement she did not want a drink because she wanted to be able to drive, this is immaterial. Viewers’ understanding of the segment was that a sexual assault occurred during a meet up resulting from the use of dating apps.
  • Strangulation – We note the broadcast did not state Winchcombe was found guilty of strangulation (as it was vague on the assault charges mentioned). Further, the audience takeaway would have been in relation to the sexual assault, the focus of the segment.
  • Bleeding face/Injuries sustained – As above, the focus of the segment was on the sexual assault. We do not consider the specific extent of injuries depicted in the re-enactment (and specifically whether the skin broke allowing blood to drip) significantly affected viewers’ understanding of this assault. Further, we note the detective did not refer to bleeding, but rather to bruising and swelling on her face, mitigating any impression caused by the graphic illustrations.

Fairness

[27] The complainant’s submissions regarding fairness are anchored on the effect of the alleged inaccuracies.

[28] We note the broadcast’s framing (in terms of presenting the survivor’s perspective) does not provide an automatic defence. Indeed, we have acknowledged the importance of broadcasters being careful in their portrayal and treatment of other individuals involved and that their rights and dignity, including their right to fair treatment, are equally respected and given due consideration in such instances.^[14] A fine balance is required which respects the rights of offenders while protecting the rights of survivors.^[15]

[29] However, it is common for offenders to have their name in the news as a part of our open system of justice (and this story was no exception, having been widely publicised at the time).^[16] In the circumstances, given our findings the broadcast was materially accurate, we do not consider this broadcast would have left the audience with an unfairly negative impression of the complainant and do not uphold the complaint under this standard.

Request for costs

Submissions

[30] Great Southern notes it has incurred legal costs in excess of $5000 responding to this complaint, which it considers necessary given the complainant engaged a barrister to act on his behalf. It submits this is an appropriate case for costs to be awarded against the complainant as it ‘appears to trivialise the horrific treatment of [Ms X] by Mr Winchcombe’ by the very fact it has been made. The complainant appears to ‘fail to appreciate the bigger picture and the impact on [Ms X] of the ordeal she went through. It is worth repeating that the Court of Appeal said the sentence of eight years and eight months imprisonment was “arguably generous”.’

[31] Further, it should have been apparent to the complainant, and his advisers, ‘that what may have taken place on sentencing, does not necessarily mean that what [Ms X] said in Swipe with Caution was in any way misleading on material facts, if at all.’

[32] Great Southern acknowledges costs are rarely awarded, but considers ‘when the complaint falls within the parameters of section 11 of the Broadcasting Act 1989 and is devoid of merit, then a cost order is fully justified.’ In these circumstances, a costs award would not have the effect of preventing the raising of legitimate complaints.

[33] The complainant considered the complaint is about the ‘improper representations by Great Southern where they have been indifferent between the proven facts in the criminal proceedings and the complainant's narrative presenting a different case that was actually proven against him.’ In this light, the request for costs ‘is an attempt to prevent Mr Winchcombe raising legitimate complaints’ concerning his presentation in the documentary.

Our analysis

[34] Section 16 of the Broadcasting Act empowers the Authority to award reasonable costs to ‘any party’ as it thinks fit, however the Authority may only award such costs against the complainant if it considers the complaint is (relevantly):^[17]

• frivolous
• vexatious or
• ‘one that ought not to have been made’.

[35] Since 2002, the Authority has only awarded costs against three complainants (one of which was revoked upon appeal to the High Court).^[18] In all examples, the complainant had a history of making trivial complaints and was warned by the Authority of the prospect of a costs order against them.^[19] The issue has been before the High Court, which did not consider any general guidance justified on the issue as it was ‘plain the power is being used sparingly’.^[20]

[36] We do not consider it appropriate to exercise our discretion for costs in this instance. While unsuccessful, we have not found the complaint frivolous, vexatious or ‘one that ought not to have been made’. The complainant is a first time complainant and we have not previously warned of the prospect of costs in these circumstances. We see no need to denounce the complainant’s choice to complain and effectively remove the complainant’s, or others’, right to make a complaint alleging a breach of broadcasting standards.

For the above reasons the Authority does not uphold the complaint.
Signed for and on behalf of the Authority

Susie Staley
Chair
27 February 2023

Appendix

The correspondence listed below was received and considered by the Authority when it determined this complaint:

1 Caleb Winchcombe’s formal complaint to TVNZ – 4 and 10 October 2022

2 TVNZ’s response to the complaint – 28 October 2022

3 Winchcombe’s referral to Authority – 11 November 2022

4 Great Southern’s response to referral (including Judge’s sentencing notes) – 30 November 2022

5 Winchcombe’s final comments – 9 December 2022

6 Great Southern’s final comments – 16 December 2022

^[1] Winchcombe and R [2021] NZCA 439 at [1] citing R v Winchcombe [2020] NZDC 22301 [Sentencing notes] at [110]
^[2] Emphasis in original
^[3] We refer to the survivor as ‘Ms X’ throughout this decision, protecting her identity which is suppressed under s 203 of the Criminal Procedure Act 2011
^[4] Referring to the act of drinking a beverage very quickly – see “scull” Urban Dictionary <urbandictionary.com>
^[5] Standard 6, Code of Broadcasting Standards in New Zealand
^[6] Commentary, Standard 6, Code of Broadcasting Standards in New Zealand at page 16
^[7] Standard 8, Code of Broadcasting Standards in New Zealand
^[8] Commentary, Standard 8, Code of Broadcasting Standards in New Zealand at page 20
^[9] Introduction, Code of Broadcasting Standards in New Zealand at page 4
^[10] Cartin Owen “Grace Millane murder reveals dark side of dating apps: Should NZ police collate data?” Stuff (23 November 2019); Eleanor Ainge Roy and Stephen D’Antal “Grace Millane murderer raped another British tourist months earlier” The Guardian (online ed, 21 December 2020); “Calls to ban violent offenders from dating apps in Australia” 1 News (online ed, 23 January 2023); and “'Grace Millane's death could have been avoided'” BBC (online ed, 17 November 2022)
^[11] Attorney General of Samoa v TVWorks Ltd [2012] NZHC 131, [2012] NZAR 407 at [98]
^[12] Guideline 6.2
^[13] See Sena v Police [2019] NZSC 55, [2019] 1 NZLR 575 at [17]–[19] and [36]–[37] citing R v Connell [1985] NZCA 34; [1985] 2 NZLR 233 (CA) at 237–238; and Laulu v Attorney-General [2016] NZHC 3202, [2017] NZAR 318 at [12] citing Deliu v Connell [2016] NZHC 361, [2016] NZAR 475 at [34]–[35]
^[14] Johnson and Television New Zealand Ltd, Decision No. 2017-055 at [31] and [61]: ‘We are not objecting to the concept of telling a story through the lens of one person. Where this perspective is clearly signposted, as it was here, and comprehensive details are given, then the audience can make up their own minds as to the weight to be given to that narrative. However, where another individual is discredited, and their perspective is not given, then care must be taken to avoid unfair treatment’ – we note, however, in that case the alleged offender’s perspective was the focus in ‘I Am Innocent’.
^[15] Johnson and Television New Zealand Ltd, Decision No. 2017-055 at [28]
^[16] Wellington higher courts reporter “Tinder date rapist says he wasn't given enough credit for remorse” Stuff (24 August 2021) and republished in “Tinder date rapist seeks remorse credit” The Dominion Post (online ed, 25 August 2021); Jono Galuszka “Tinder date rapist has jail term confirmed, claims of remorse rejected” Stuff (7 September 2021)
17 Broadcasting Act 1989, s 16(2)
^[17] Broadcasting Act 1989, s 16(2)
^[18] See Schwabe and Radio New Zealand Ltd, Decision No. 2002-091; McDonald and Television New Zealand Ltd, Decision No. 2011-020 (revoked on appeal, see McDonald v Television New Zealand Ltd HC Wellington CIV 211-485-1836, 30 April 2012 at [35]); and see Golden and Radio New Zealand Ltd, Decision No. 2019-095; Golden and Radio New Zealand Ltd, Decision No. 2019-027; and Golden and Radio New Zealand Ltd, Decision No. ID2019-010
^[19] For Schwabe, see Schwabe and Radio New Zealand Ltd, Decision No. 2001-219; Schwabe and Television New Zealand Ltd, Decision No. 2001-020; Schwabe and Radio New Zealand Ltd, Decision No. 2000-166; for McDonald, see McDonald and Radio New Zealand Ltd, Decision No. 2010-074; McDonald and Television New Zealand Ltd, Decision No. 2010-055; McDonald and Television New Zealand Ltd, Decision No. 2010-015; McDonald and Television New Zealand Ltd, Decision No. 2010-033 (although some complaints were lodged prior to receiving warnings); and for Golden see Golden and Radio New Zealand Ltd, Decision No. ID2018-097; Golden and Radio New Zealand Ltd, Decision No. 2018-083; Golden and Radio New Zealand Ltd, Decision No. ID2017-073; Golden and Radio New Zealand Ltd, Decision No. 2016-005; Golden and Radio New Zealand Ltd, Decision No. 2013-028 (although some complaints were lodged prior to receiving warnings)
^[20] McDonald v Television New Zealand Ltd HC Wellington CIV 211-485-1836, 30 April 2012 at [35]