Murray Foreman against the Southland Times

The Discussion

15. A significant part of the article concerned Mr Foreman’s trial and the fact that Mr Whatarau was his son. Mr Whatarau had some involvement, as a boy, in the sequence of events that the Crown alleged were prior to, but led to Mr Nicholas’ death. This needs to be recognised in analysing the complaint.

16. It is also the case that it is the fact of the Nicholas murder and the suspicion about Mr Foreman that are the interesting aspects of the article. It is highly unlikely that the type of assault of which Mr Whatarau was convicted would have led to a full article of this type, or indeed any mention at all. Equally, we accept that the circumstances of Mr Nicholas’ murder are a matter of on-going public interest.

17. Principle (2) of the Media Council Principles reads:

Everyone is normally entitled to privacy of person, space and personal information and these rights should be respected by publications. Nevertheless, the right of privacy should not interfere with publication of significant matters of public record or public interest. Publications should exercise particular care and discretion before identifying relatives of persons convicted or accused of crime where the reference to them is not relevant to the matter reported. Those suffering from trauma or grief call for special consideration.

(Emphasis added)

18. The qualification of the right to privacy set out in Principle (2) relating to the publication of significant matters of public interest applies. As stated, the Nicholas murder is a matter of public interest. However, this factor is qualified by the requirement in Principle (2) for the media to exercise particular care and discretion before identifying relatives of persons convicted or accused of a crime “where the reference to them is not relevant to the matter reported”.

19. The Council agreed it was unfair for the Southland Times to include Mr Foreman in a story about his son's offending, given Mr Foreman’s trial was 17 years ago and had nothing to do with Mr Whatarau's conviction. This is especially true because Mr Foreman was found not guilty.

20. However, several members of the Council expressed their concern about upholding this complaint under Principle (2). Mr Foreman's trial is part of the public record from open court. It was, and continues to be, available to the public. Indeed, much of the information in the article had been published previously, including a 2019 article by the same journalist.

21. It was suggested that if the Council were to uphold the complaint under Principle (2), there was a risk the decision would restrict media's ability to provide background and context in similar stories, especially when they come from open court proceedings. It was observed the public is often well served by stories about cold cases and historic crimes.

22. The Council considered that it may have been permissible to refer to the fact that the person convicted of violent assault was the son of Mr Foreman who had been charged and acquitted of Mr Nicholas’ murder. That would have placed Mr Whatarau in an interesting family context. The question is whether it was permissible for a significant part of the article to be devoted to the earlier trial and, both directly and by implication, Mr Foreman’s alleged involvement in it.

23. This article facilitated and indeed constituted renewed publicity of the 2008 trial. It went beyond what was relevant to the 2025 matter reported. Mr Foreman was identified as a relative of his convicted son. Rather than particular care and discretion being involved in identifying him, some key facts of the original case against Mr Foreman presented by the prosecution were recounted. These facts did not have to be stated for the article about Mr Whatarau’s conviction to make sense or be complete. The facts of the Nicholas murder and Mr Foreman’s trial for that murder were referred to, in our view, because they could be seen as more interesting to the public than the fact of a violent assault.

24. In the Council’s view, there is force in the criticism made in the complaint that it appears to have used the fact of Mr Whatarau’s conviction as a gateway to report on a matter that was of great public interest, namely the Nicholas murder. This is indicated by the headline which refers to the killing of Jack Nicholas rather than any fact about Mr Whatarau’s violent assault. Such a headline could be seen as more likely to secure clicks from readers than if the headline had read simply “Man jailed for violent assault”.

25. This skewing of the article to being about Mr Foreman and his alleged involvement in the Nicholas murder was plainly unfair to Mr Foreman. The Council also considers that, on balance, the article also breached the privacy requirement in Principle (2) that particular care and discretion should be used in identifying relatives of persons convicted of a crime. Plainly the account went far further, referring to Mr Whatarau’s involvement as a boy in the sequence of events relied on by the Crown. Mr Whatarau was not called as a witness in that earlier trial. It was never alleged that he was involved in any material way in the shooting of Mr Nicholas and yet it was the shooting and the trial of Mr Foreman that was emphasised in the later part of the article.

26. Indeed, the only hyperlink was to an earlier article about the Nicholas murder, where Mr Nicholas’ widow talked about Mr Nicholas’ qualities as a person and father and contained an outline about the Nicholas trial. This article was entirely irrelevant to the assault in question. However, it would have provoked sympathy for Mr Nicholas, his wife, and sadness. It would have also provoked concern at the murder, and we have no doubt, hostility from some people who, from the article, recognised Mr Foreman in his present residence in Southland.

27. We do not think it makes any difference that this was only an online publication and not in the print edition of the Southland Times. The online edition will have been widely read and the damage done.

28. We accept that the extent to which the son’s conviction could be fairly linked to Mr Foreman was a question of degree. The facts about Mr Foreman’s trial had been in the public domain and to that extent, were not private. However, the right to privacy can extend to new publicity being given to incidents that happened decades ago. Further, as we have indicated, it was legitimate to mention the link of Mr Whatarau with the earlier case and his relationship with Mr Foreman. However, given that Mr Foreman was found to be not guilty, this article went too far in making the link to the Nicholas murder the centre point of the headline and on overview the key focus of the article. The fact that the only hyperlink was to a report on the Nicholas murder and an interview with Ms Nicholas which had absolutely nothing to do with Mr Whatarau demonstrates this. So is the fact that the only photograph shown in the article was a photo of Mr Foreman, not Mr Whatarau.

29. However, while we understand Mr Foreman’s concerns, there is no proof that the article was motivated by malice in an attempt to create an unsavoury public perception of Mr Foreman and we do not so find.

30. Therefore, we uphold the complaint on the basis of unfairness to Mr Foreman, who had been acquitted of the murder, and where the details of his defence were not traversed in the article. It also involved a breach of Mr Foreman’s privacy because, despite the public interest in the Nicholas murder, the level of detail was not relevant to the reported violent assault by his son which took place some 20 years later.

31. We also note the error in stating that Mr Foreman’s trial was a five week trial rather than a seven week trial. We see this as a minor error that has been corrected and we do not uphold this aspect of the complaint.

32. The Council emphasises this is a decision confined to the specific circumstances of this article and should not be taken as extending Principle (2) to prevent or limit other reporting on cold cases and historic crimes.

Decision:

33. The Media Council does not have the power to direct an apology and does not do so. It does not uphold the part of the complaint relating to the report of the duration of the trial.  Further, it does not find there was sufficient evidence to support an uphold on the basis that the publication of the article was motivated to create personal hardship and stress for Mr Foreman.

34. We uphold this complaint on the basis of a breach of Principles (1) Fairness and (2) Privacy of a relative of a convicted person. It contained a significant breach in setting out particulars of Mr Foreman’s trial which referred to details about that earlier shocking murder, not relevant to the report of his son’s conviction for assault.

Council members considering the complaint were Hon Raynor Asher (Chair), Hank Schouten, Rosemary Barraclough, Tim Watkin, Scott Inglis, Ben France-Hudson, Jo Cribb, Judi Jones, Marie Shroff and Richard Pamatatau.

Council member Guy MacGibbon declared a conflict of interest and did not vote.