The court has decided not to decide whether Bradley Ambrose's taping was legal - and that's all it has done.

So Bradley Ambrose has failed to get his declaration in the High Court that the "cup of tea" conversation between John Key and John Banks was not a "private communication".

That's not really a surprise. Like I said here:

It's not clear, however, he'll get such a declaration ... especially now that the Police are actively investigating the matter, and deciding it may involve issues of fact that a Court may decide a jury ought to determine.

And that effectively is what Justice Winkelmann has now said in the High Court. Because the issue of whether or not the conversation was a "private communication" requires a number of facts to be determined, she doesn't feel able to resolve the issue without more information than was available at the declaration hearing. And so rather than issue a declaration on partial information that may interfere with the administration of justice - for how could the cops keep investigating whether a crime has been committed when a judge (albeit on incomplete information) says that one of the elements of the offence has not been met? - she has said that she just won't say what the law is here. Which is a perfectly respectable option that is completely open to her.

That being so, two things to watch out for in commentary on this ruling.

(1) Anyone who says that this decision "proves" that the taping was illegal, or shows that it was "private", or means that the cameraman will now be charged is telling you lies. As Justice Winkelmann herself says at para. 55:

"In declining to exercise the discretion to make a declaratory order, I make clear that I have not reached any view on whether this was a private communication, and whether Mr Ambrose's actions engage s.216B."

In fact, I stand my my previous position that no charges will ever be laid in relation to this incident, much less anyone get convicted for the taping.

(2) Anyone who says that this decision is evidence the judge was leaned on by the Government, or caved under pressure, or somehow is doing "the establishment" (read, "National") a favour is telling you lies. It is a perfectly orthodox legal decision, which is entirely consistent with previous court rulings - as can be seen in Dean Knight's post here. Sure, Dean thought that the court should give a declaration in these circumstances ... but also note that he recognised it could only do so by going beyond its role as previously established in earlier cases. So the most Justice Winkelmann can be accused of is lacking bravery on the bench ... or, refusing to be an activist member of the judiciary who bends the law to fit the outcome she thinks is best in the situation, if you want another way of looking at it.

So - there you go. Now we won't know (for certain) what was on the tea tape ... at least until after the election, when the Police announce no charges will be laid over its recording. But that's OK - I don't think the media should release its contents anyway, on ethical grounds.

Which is exactly the position that the Herald on Sunday have taken, just in case we need reminding of that.

Comments (8)

by Aaron Watson on November 23, 2011
Aaron Watson

If Key had not referred the matter to the police, a decision to not publish could be viewed as virtuous. But I'm not sure that "ethical grounds"  is a sustainable argument for not publishing the contents in the present circumstances. The ethics of releasing the tea tape contents should be decided on the relevance of the conversation. If there is something of substantial public interest on the tapes, then the onus would be on the media to release the contents. And given the interest in this case, and the overtone of political intimidation of the media, it is arguable that the public has a right to know just what the fuss has been over.

by Tim Watkin on November 23, 2011
Tim Watkin

So if the police don't lay charges, does this case resume?

by MJ on November 23, 2011

What are the ethical reasons Andrew?

This sounds a bit like the catch and release policy on legitimate protest of late. Simply shut it down with police action and then later admit that it wasn't right, but the damage has been done by the timing.


by Andrew Geddis on November 23, 2011
Andrew Geddis


No ... I guess that, if the Police indicated no charges will be laid, Bradley Ambrose could go back and ask for a declaration again. But why would he want to?


My view is that Key/Banks thought they were speaking just to one another. (Note - that's not the same as saying this was a "private communication" in terms of the Crimes Act.) The contents of that conversation were then recorded, in breach of an understanding they thought they had with the media (and all other media apparently accepted was in place). The fact this recording (most probably, it seems to me) was inadvertant doesn't remove that fact - the media agreed to give the two of them space to chat, and they then took advantage of that assumed freedom to speak. And while the contents of the recording (if what Winston has said is correct) sound mildly interesting, they aren't so earth-shattering as to override the principle of respect for privacy that responsible media should follow (see principle 2 here).

I note that is, in a nutshell, the position the Herald on Sunday adopted. In the end, it's a judgment call - others may think the information was so relevant and important that it overrides privacy interests. That's fine ... I'm just saying how I think the balance shakes out.

Now, as to whether subsequent events change that balance, I'm still not convinced. Even if calling in the cops was a stupid overreaction, it still indicates how seriously the PM took the privacy concerns at stake. And the fact the Police investigated the issue doesn't change the importance/impact of what is actually said on the recording - that only goes to the circumstances in which it was obtained. Put it this way - how is it any more in the public interest to hear the recording (as opposed to being of interest to the public to hear it) now the police are involved?

I guess in the end I'm just happy that we have a press where, when something like this falls out of the sky, it stops and asks seriously "should we really be publishing it?" Which once again shows how completely off-base Steven Joyce's whole "News of the World tactics" claim was.

by John Norman on November 23, 2011
John Norman

Hello Andrew Geddis,

That's a lovely not you have there.

I have a question you may care try answer. First a little context for me..

I'd heard radio clips from the court proceedings, suggesting presence the PM's people, likewise Ambrose's.. and then the S-G(Solicitor-General aka Attorney-General elsewhere) said appearing for the Crown. That said, the third factor so to say, one has to guess the PM's people did not actually need present evidence. Is this correct? If so their presence was for the record etc..?

Again if correct, I wonder whether the S-G - entirely properly of course - mebbe unwittingly had gotten used as a 'wedge' between the parties. In terms of Ambrose's ask on the substance(conversation) what might have influenced the Justice to an extent where any police inquiry/actions being post this would have led to her final 'not I' decision.?

Yep, I know you wouldn't want to put words into her mouth (?) but its a genuine interest question and I'd appreciate your response.

by Andrew Geddis on November 24, 2011
Andrew Geddis


You can read the decision here. Alternatively, Steven Price has a dissection of the decision here.

by John Norman on November 24, 2011
John Norman


Thanks very much.. I have the pdf already and SP looks likely tonight.. oh yes, I think it was Mary Wilson on checkup or something which had further clips to answer several my ? above..

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