December 10, 2023

Sex crime survivor seeks apology after TVNZ’s Sunday show ‘off the record’ footage used by abusers in court defence

Erin Leighton delivering her victim impact statement at the trial of Paul Bennett and a woman who cannot be named for legal reasons. Photo / Michael Craig

A survivor of sexual abuse is waiting for an apology from TVNZ after it provided “off the record” material to defendants in a sexual offending case who then used it to try to undermine her in court.

It comes as an internal TVNZ email has emerged showing a “commitment” was made by the state broadcaster to sexual abuse survivor Erin Leighton that it would appeal to higher courts to keep the material private – but that it then decided not to do so.

It was a decision that led to veteran Sunday current affairs journalist Chris Cooke quitting TVNZ on a point of principle, saying it should have kept its word and it had imperiled journalism by failing to do so.

The footage was used by serial fraudster Paul Bennett and a woman who cannot be named for legal reasons when defending charges of committing indecent acts on Leighton, who was then 15. They obtained the material after taking TVNZ to court, winning the right to use it in their defence in the Auckland District Court.

The effort failed and both Bennett and the female defendant were convicted and jailed for their crimes against Leighton.

Leighton, who has waived her right to automatic name suppression, said she was still owed an apology from TVNZ, even though the pair were found guilty.

“A lot of the answering I had to do on the stand was due to the footage that they [gave] to the defendant that should have never made it to the courtroom. It did make it tricky in court.”

Leighton said she was “still waiting for an apology from TVNZ, and probably will be for a long time, considering they’re too gutless to even make contact, front up during my trial to see how I got on and made no attempt to cover the case”.

She said the absence of TVNZ at the trial was striking as it “originally wanted a follow-up story when it was all over and done”.

“They know full well how badly they have let me and anyone with a story to tell down and all they can do is hide like absolute cowards.”

She told the Herald she had gone to TVNZ because she didn’t feel heard by police but the broadcaster didn’t have her back when “push came to shove” regarding the footage.

“They left me in a bad spot and it was nerve-racking because, even if they are [found] completely guilty through court, court cases can be thrown out due to technicalities and things [that have] nothing to do with whether they were guilty or not.”

The worst part of the experience was how TVNZ relied on Cooke to keep her updated about the footage, she said.

“They never fronted to me directly. Chris was distraught and I could tell how stressful it was on Chris and, when he rang me to tell me they got the footage and he’d quit his job over it, I felt terrible for Chris.”

After Cooke quit, there was no communication from TVNZ, she said. “Chris Cooke really cared about what I’d been through and not just as a journalist. He kept in touch as a friend and checked in regularly [about] how I was going.”

An email obtained by the Herald showed Sunday executive producer Jane Skinner announced Cooke’s departure from TVNZ in February last year as a “deeply considered decision” after 20 years of journalism that was of “huge and unforgettable value”.

Skinner told staff that TVNZ had been “dealing with a significant legal issue” relating to the 2015 Sunday story. She said those accused of historical sexual abuse of Leighton were “seeking disclosure of raw field interview footage”.

“TVNZ made a commitment to the young woman to appeal to a higher court if needed to protect our footage,” the email said. The case had gone to the district court with two small segments of the “off the record” interview material ordered to be disclosed.

“On internal and external legal advice relating to the district court finding, TVNZ did not appeal and released approx two minutes of footage on the order of the court.”

While TVNZ did not appeal, Bennett and his co-accused did and obtained a significant portion of the unscreened raw material. TVNZ opposed further release in court but did not file a cross-appeal or appeal further to the Supreme Court.

Skinner’s email to staff said: “Chris has strongly believed throughout that TVNZ should have honoured its commitment and appealed. He has decided to resign to honour his personal integrity. He sees this very much as a matter of principle.”

Cooke endorsed Leighton’s call for an apology, saying it was still able to honour its commitment by appealing to the Supreme Court.

“TVNZ certainly owes Erin Leighton an apology for not honouring the promise they made to her, to appeal in court to fight the release of all the footage. They’ve not offered any coherent explanation as to why they didn’t challenge the district court decision by appealing it.”

Cooke has received messages of support since the Herald revealed he had quit over the issue, including from senior barrister Nigel Hampton KC, who had known the details of the case for some time.

With Hampton’s permission, Cooke shared his email in which he said: “I’m still of the view that a Supreme Court appeal should have been taken [by TVNZ] given the issue. TVNZ should do this now. If they don’t, a precedent remains enabling this to happen again. There are grounds for such an appeal.”

Cooke said TVNZ should join forces with him to lobby the new government for a shield law to fully protect off-the-record material. “We should be entitled to retain it safely. If there can’t be certainty in journalists being able to keep off-the-record promises, then vulnerable people like Erin Leighton will not come forward with information and important stories will not be told.”

TVNZ did not address questions about an apology to Leighton when approached by the Herald. “Erin is entitled to her view and she is welcome to get in touch with us. We don’t have a further comment to make to the Herald here.”

Instead, a spokeswoman said TVNZ “challenged disclosure of the interview footage at all steps of the court process” – a reference to it appearing as a party in the Court of Appeal hearing, rather than itself appealing against the decision to release the material. She said TVNZ was ordered by the Court of Appeal to disclose the footage through the Criminal Disclosure Act.

“We were compelled by the courts to provide specific material for the purposes of a fair trial. There were no further realistic legal avenues left for us to pursue, regardless of how individuals felt at the time.

“TVNZ was in touch with Erin through this court process,” she said, referring to the earlier court hearings.

“We have since updated our legal training with journalists to cover what assurances they can provide sources and what guarantees they cannot give.”

Katie Harris is an Auckland-based journalist who covers social issues including sexual assault, workplace misconduct, crime and justice. She joined the Herald in 2020.

David Fisher has worked as a journalist for more than 30 years, winning multiple journalism awards including being twice named Reporter of the Year and being selected as one of a small number of Wolfson Press Fellows to Wolfson College, Cambridge. He first joined the Herald in 2004.

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