Adjudication No. 1206 (July 2003) [2003] APC 22

Adjudication No. 1206 (July 2003)

The Press Council has dismissed a complaint against the Perth-based Sunday Times over a front-page report accusing SAS troops of using torture techniques against prisoners after an action in Timor, but notes one aspect of the reporting over which it has concerns.

The paper, in a by-lined 'exclusive' article, quoted extensively a man described as a former SAS trooper. He claimed SAS men had held the captives for 90 hours without food or water, blind-folded and hands bound, and forced to sit in cross-legged 'stress positions' for lengthy periods. The prisoners, he said, were forced face-to-face with the corpses of two militiamen killed in a firefight (the action took place away from and after the capture of the prisoners).

The paper's report, in March this year covering events in October 1999, included a reference to an army inquiry that had been going on for three years into allegations of mistreatment of prisoners. The paper did not report that the inquiry had found that 13 of 19 allegations were not substantiated. In addition, the paper was aware that former warrant officer Wayne Douglas, who had already spoken to The Australian, had been in charge of the prisoners at some stage and could have provided some views on the allegations.

The Press Council believes the paper could have made these points, even if the exact nature of the accusations dealt with was not disclosed; they may not have answered the allegations made by the unnamed source, but it would have gone some of the way.

The Sunday Times published a week later a report that the Defence Department inquiry was continuing. A representative of the inquiry said the allegations made by the paper's unnamed source had specifically been dealt with, but not whether the inquiry had substantiated them. The inquiry was quoted as calling for anyone with information to come forward.

The paper pointed out that its source had not been one of the more than 350 people interviewed in four countries. This, it said, indicated that someone else had made the same allegations.

About four days later Wayne Douglas appeared on Perth television and radio to deny torture allegations. The West Australian published the Douglas denial, but not the Sunday Times, which later claimed that it was waiting for the final inquiry report.

On 11 April, a month after the publication of the Sunday Times allegations, Lt-Col. David R Lewis complained on behalf of the Australian SAS Association to the paper and the Press Council, claiming that the paper should have known that the allegations were false in view of the published inquiry findings and the Douglas denial, and should have sought and published balancing evidence at the time. Col. Lewis said the association had not complained initially because it had been waiting for the paper to correct its failings.

In answer, the paper said that it had notified the Defence Department the day before publication of the fresh allegations, but it had received nothing in reply. The paper was still waiting for the full report of the inquiry.

On April 16 the inquiry was announced as concluded. The following Sunday the Sunday Times published, under the headline Timor captives not tortured: army, what it claimed to be "the fullest report" of the findings and the press conference that followed. Thirteen of the 19 allegations were found to be unsubstantiated, one was indicated as leading to proceedings over the alleged kicking of a dead body, and the rest were either unsubstantiated or lacking sufficient evidence to proceed.

In the press conference the army chief, Lt-Gen. Peter Leahy, said the prisoners were questioned within the Geneva Convention, but they were held in "robust situations ... not a four-star resort". Elements of four of the allegations were substantiated and there was a clear need to amend some of the army's operational procedures. Another officer denied that the captives were deprived of food or hygiene facilities, but their hands were bound and they were deprived of some sleep.

The paper ran on the same day an editorial that claimed the closed inquiry was by no means 'open and transparent' as promised, and the report was limited to the findings without giving the evidence. It again pointed out that its source had not been sought out nor called to give evidence. The paper had believed - and still believed - that its source was credible. It offered Col. Lewis the publication of a letter.

It is not for the Press Council to second-guess an inquiry that spread over three years and 350 witnesses, but "unsubstantiated and lacking sufficient evidence to proceed" hardly amounts to a ringing declaration of not guilty.

The Press Council finds that the newspaper's publication of the original article and the follow-up material was justified and the coverage generally fair. However, the Council believes that the Sunday Times should have mentioned the inquiry interim results, limited though they were, in the first report of the fresh allegations, and it should have published the Douglas information at the time or in a follow-up article. This aspect alone concerns the Council.