The Bradley Ambrose non decision

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.