Tea tape judgment

Written By: - Date published: 2:00 pm, November 23rd, 2011 - 140 comments
Categories: john banks, john key - Tags: ,

Any minute now, we should find out whether we are allowed to know the secret plans that John Key and John Banks were foolish enough to discuss in a public cafe in front of the country’s media, or whether that information will be denied us before we vote on Saturday.

Update: Judge has declined to make a decision:

A declaration on whether a conversation between John Banks and John Key in a Newmarket cafe has been declined.

Justice Helen Winkelmann has just released her judgement, saying she has not reached a view on whether it’s a private or public conversation.

So it can be published without breaking the law. Under s216C(1) of the Crimes Act, publication is only illegal if publisher knows the interception was illegal under s216B. No-one can now know that because s216B only applies to private communications and we are in legal limbo on whether the teapot conversation was private.

140 comments on “Tea tape judgment ”

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  1. chris73 1
    23 November 2011 at 2:12 pm

    A judgement which will no doubt cause a massive surge in popularity for Labour

    • mike 1.1
      23 November 2011 at 2:31 pm

      I don’t know about massive, but no doubt it would help for sure. And who would Key have to blame for it but himself? The court? The cameraman? This is Key’s sloppy fuck up.

  2. insider 2
    23 November 2011 at 2:27 pm

    Expect the judge to back off and refuse to give a declaratory judgment – as a potential jury trial trumps the dc. She alluded to that yesterday. Will a non-decision make it a non-story? Like f**k it will

  3. mike 3
    23 November 2011 at 2:27 pm

    Even if the judge, who I’m picking is quite fond of her job and would like to keep it, does decide that a conversation in a cafe between two prominent politicians with 40 journalists invited to document the event is indeed a private one, there is still the issue of public interest regarding the press releasing it, which can and should supercede privacy concerns.

    Whether or not the contents of the tape are sufficiently in the public interest, only those who have heard it could judge. The editor of the HoS keeps saying that it is – “explosive”, “game-changing”, “compelling”, and even Duncan Garner says it “raises some interesting questions” (and we all know on which side he butters his bread).

    The public are certainly interested, even more so when they see the PM and Banks first becoming forgetful about what they said, and Key pulling out all the stops to prevent the release of something he’s “not bothered” about. Because he’s a former banker and trader who is also a man of principles. Yeah right.

    • Carol 3.1
      23 November 2011 at 2:36 pm

      As I understand it, from reading some legal commentaries, “public interest” does not come into the relevant law on privacy.

      My guess is that the Judge will not make a definite judgement on public/private with repect to the recordings, but will lay out some terms that will be need to be met in the police investigation as to whether the evidence shows the public/private nature of the event.

    • Jackal 3.2
      23 November 2011 at 2:36 pm

      Apparently John Key isn’t worried about what’s on the tape… so theoretically he wont oppose it’s release? Is it just me or is Key looking more like a schizo every day?

    • queenstfarmer 3.3
      23 November 2011 at 2:39 pm

      Even if the judge, who I’m picking is quite fond of her job and would like to keep it

      Let’s not start this again. Like in other commonwealth countries judges cannot be “fired”.

    • Carol 3.4
      23 November 2011 at 2:47 pm

      Andrew Geddis says it’s not a relevant term in cases like the teatapes, in the comments below this post:

      http://www.pundit.co.nz/content/out-of-a-teapot-and-into-hot-water

      While I’ve posted my reasons for why I don’t think there’s been a breach of s.216B (thus no possible breach of s.216C) – reasons that largely conform to those Steve F outlines above – there is no general public interest defence available to those charges.

      • mike 3.4.1
        23 November 2011 at 3:11 pm

        I’m not clear about this but I think the article you link to is discussing whether or not Ambrose could claim public interest as a defence for his actions. I’m talking about TV3 claiming such as a defence for releasing it.

  4. yeshe 4
    23 November 2011 at 2:29 pm

    TV3 news pages have a poll for whomever one thinks might be PM next week . Goff on 53% and Key on 48% …at 2.20 pm .. while we wait …. cuppa tea anyone ??

  5. mickysavage 5
    23 November 2011 at 2:36 pm

    Application declined. PRedictable caution by the Judge,

  6. Blighty 6
    23 November 2011 at 2:38 pm

    So, the judge has declined to rule.

    That means 3news can legally publish. It is only illegal to publish if you know the recording was illegal.

    • the sprout 6.1
      23 November 2011 at 2:41 pm

      i hope so, let’s see if they whimp out too

    • queenstfarmer 6.2
      23 November 2011 at 2:41 pm

      No, it means they can take the chance that it is not private. Status quo.

      • felix 6.2.1
        23 November 2011 at 2:47 pm

        Cool, so they’re back to relying on their own legal advice that they were allowed to publish all along.

        • insider 6.2.1.1
          23 November 2011 at 2:53 pm

          I’m not sure just having a legal opinion is going to be much of a robust defence against criminal charges. Lawyers are for hire you know.

          It\s a bit like that old Steve Martin sketch where he has the perfect defence to any crime: “Two simple words. Two simple words in the English language: “I forgot!” How many times do we let ourselves get into terrible situations because we don’t say “I forgot”? Let’s say you’re on trial for armed robbery. You say to the judge, “I forgot armed robbery was illegal.” Let’s suppose he says back to you, “You have committed a foul crime. you have stolen hundreds and thousands of dollars from people at random, and you say, ‘I forgot’?” Two simple words: Excuuuuuse me!!”

          • felix 6.2.1.1.1
            23 November 2011 at 3:00 pm

            Don’t be a retard, insider. It’s not a fucking defence, it’s a precaution to help you judge risk.

            • insider 6.2.1.1.1.1
              23 November 2011 at 3:06 pm

              If they were relying on it why did they not publish straight off? Because legal advice is not a guarantee that you are not breaking the law, and they know there is a risk they will be prosecuted.

              • felix …
                23 November 2011 at 3:14 pm

                Geez you’re a moron.

                They got advice that they could publish without breaking the law and they pussied out.

                Which bit are you stuck on exactly?

                • insider …
                  23 November 2011 at 4:04 pm

                  you get the advice you pay for. I’ve been involved in cases where the opposition says they have great legal advice (Crown Law no less) saying they are absolutely right and are going to sue the pants off you, and then they do nothing. What they don’t tell you is all the ifs, buts and maybes in that advice. It’s all grandstanding until the papers are lodged. Actions speak louder than words. You might think they are pussies for not acting; I think it’s because their public bravado is not as fully supported by their advice as you think.

                  • Jackal …
                    23 November 2011 at 5:09 pm

                    I think they were very specific about the advice they received and they could have released the recording straight away if they chose to. When you pay for legal advice it is somebody who is trained giving an honest opinion based on the law. It is very unusual for that advice to contradict law as you seem to be implying, therefore you’re clearly a moron insider.

            • queenstfarmer 6.2.1.1.1.2
              23 November 2011 at 3:10 pm

              I don’t see how you can make such judgment calls unless you have actually seen the full advice (which I very much doubt you have).

              • felix …
                23 November 2011 at 3:15 pm

                They said it themselves. Last week.

                You could be right though, they might have been making it up.

                • the sprout …
                  23 November 2011 at 3:19 pm

                  correct, that’s what they said last week

                • queenstfarmer …
                  23 November 2011 at 3:28 pm

                  Or it could have been wrong. After all, the very same information – plus much more – has now been given to a judge, who obviously came to a different conclusion to that which you claim the media’s advice came to (which you admit you have not actually seen).

                  • felix …
                    23 November 2011 at 3:39 pm

                    Not a different conclusion, q.

                    The judge came to no conclusion at all.

                    ps It doesn’t matter who has seen the advice, I’m taking their word that they have it and it says they can publish. You don’t have to believe them but that’s nothing to do with what I have or haven’t seen.

                    What we know for sure is that a judge, having looked at all the relevant evidence, was unable to determine that the taping would definitely be illegal.

                    I say this means our fourth estate need to grow a pair (and only a tiny pair, given the judge’s ruling) and serve our democracy like they’re supposed to.

                    • Draco T Bastard …
                      23 November 2011 at 4:06 pm

                      What we know for sure is that a judge, having looked at all the relevant evidence, was unable to determine that the taping would definitely be illegal.

                      She wasn’t determining if the recording was legal or illegal but if the conversation was public or private.

                      Of course, a declaration that the conversation was public would also determine that the recording was legal. A declaration that the conversation was private would allow the police to continue to determine if it was illegal and done with intent rather than by accident.

                      But that still doesn’t cover whether the conversation should be published or not. That should be determined solely by public interest and it is most definitely within the public interest that this conversation be aired.

                    • insider …
                      23 November 2011 at 4:07 pm

                      “our fourth estate need to grow a pair … and serve our democracy like they’re supposed to”

                      I’m not sure you quite meant it that way…

                    • felix …
                      23 November 2011 at 4:17 pm

                      Yes Draco that’s all I meant by “would be legal”, that a ruling on the privacy or otherwise of the convo would imply the legality or otherwise of the recording.

                      Totally agree they should publish regardless due to the enormous disservice to democracy by withholding relevant information from the electorate.

                      lol @ insider.

        • queenstfarmer 6.2.1.2
          23 November 2011 at 2:54 pm

          They could rely on their own legal advice at any time. They are not “back to” anything – as I said, status quo.

          • felix 6.2.1.2.1
            23 November 2011 at 2:58 pm

            That’s what I meant too, q. They had legal advice that they can publish, and as nothing’s changed that legal advice is as valid today as it was last week.

            If they don’t publish it’s entirely down to their own cowardice.

          • the sprout 6.2.1.2.2
            23 November 2011 at 3:00 pm

            agreed, it will be cowardice.
            now will tv3 help us along the road to Fiji or will they do the right thing?

      • Blighty 6.2.2
        23 November 2011 at 2:58 pm

        no, because it’s only illegal to publish if you KNOW it’s private

          • Blighty 6.2.2.1.1
            23 November 2011 at 3:11 pm

            I am:

            216C “Prohibition on disclosure of private communications unlawfully intercepted

            (1) Subject to subsection (2), where a private communication has been intercepted in contravention of section 216B, every one is liable to imprisonment for a term not exceeding 2 years who intentionally—

            (a) discloses the private communication, or the substance, meaning, or purport of the communication, or any part of it; or

            (b) discloses the existence of the private communication,—

            if he knows that it has come to his knowledge as a direct or indirect result of a contravention of section 216B.”

            The last line is crucial.

            So what does 216B say?

            “216B Prohibition on use of interception devices

            (1) Subject to subsections (2) to (5), every one is liable to imprisonment for a term not exceeding 2 years who intentionally intercepts any private communication by means of an interception device.”

            The judge has specifically said that she has not ruled on whether the conversation was private.

            Therefore, no-one can know whether the conversation breached 216B.

            So, you can’t be in breach of 216C by publishing because that requires you to know that the interception breached 216B. Which you can’t know because it’s in legal limbo.

            Simple.

            • queenstfarmer 6.2.2.1.1.1
              23 November 2011 at 3:23 pm

              Wrong x 3.

              A person doesn’t need to “know” whether or not the conversation was private. Whether or not the conversation was private depends on all the facts – which is precisely why the cameramans lawyers were talking about the location, the media being invited, who else could hear, etc. If it was simply a matter of the cameraman saying “well, I’m not sure!” then there would be no need for his lawyers to give such evidence, or even any argument. All he would need to say is “I am not sure whether it was private, therefore it cannot have been private”.

              • Blighty …
                23 November 2011 at 3:29 pm

                Try reading the law again: “if he KNOWS that it has come to his knowledge as a direct or indirect result of a contravention of section 216B”

                The operative word is “knows”

                How an anyone KNOW if Ambrose was in contravention of 216B?

                Because no-one else does because the judge just declined to rule on the matter saying: “I make it clear that I have not reached any view on whether this was a private conversation, and whether Mr Ambrose’s actions engage S216B”

                If you don’t KNOW the interception was a contravention of 216B, then publishing can’t break 216C.

                • Dean …
                  23 November 2011 at 3:36 pm

                  Blighty’s right. The law obviously doesn’t require a breach of 216B to have been established in a court before 216C can come into action but it does require knowledge that 216B has been breached.

                  There is no way a reasonable person can have knowledge that 216B has been breached, especially now that even a judge who has just had a day to look at the evidence has said ‘dunno’

                  • The Gormless Fool formerly known as Oleolebiscuitbarrell …
                    23 November 2011 at 3:40 pm

                    Blighty and Dean know more about the law than Winkelman J, obviously. Good on you boys. When do we expect your elevation to the Bench?

                    • wtl …
                      23 November 2011 at 3:42 pm

                      Winkelmann did not rule that publishing would be a breach of 216C, so they are not contradicting the judge’s ruling. In fact, the application brought forward by Ambrose had nothing to do with 216C itself.

                    • Blighty …
                      23 November 2011 at 5:26 pm

                      hey, genius. point to the part in the judgment where Winkelman says it would be illegal to publish?

                      She doesn’t. She expressly says she has made no decision on whether the recording was legal or not. It is only illegal to publish something that you KNOW was recorded illegally. Therefore, it’s perfectly legal to publish in the current circumstance.

                • queenstfarmer …
                  23 November 2011 at 4:13 pm

                  Wrong x 4. I note you have actually changed your argument now. It still doesn’t matter what Ambrose “knows”, or claims he knows (which is actually a matter for the jury – the law doesn’t just accept an alleged criminal’s word without question), as far as the media goes. You need to read it more carefully, then you will understand what all the lawyers were talking about yesterday – and why none of the media organisations appear to agree with you.

                  And even if you were right (on either argument re interpretation), then why did the various QC’s at court spend so much time debating the distance of other diners, who else could hear, whether media had been invited, etc? On your theory, that would be totally irrelevant. Answer: you are wrong and they are right.

                  • Blighty …
                    23 November 2011 at 5:24 pm

                    It’s not about what Ambrose knows. It’s about what any person publishing knows.

                    No-one can know that the interception contravenes s216B, therefore, if they publish, it does not breach s216C.

                    I’m really not seeing how you’re having trouble following this.

                    What s216C says is it is only illegal to publish something you know to have been recorded illegally. If you don’t know the recoding was illegal (even if it turns out the recording was illegal) then you’re fine.

                    • queenstfarmer …
                      23 November 2011 at 6:40 pm

                      I’m really not seeing how you’re having trouble following this.

                      It’s not just me having trouble following you. The High Court, about 10 lawyers/QCs, and the media company’s internal lawyers have also clearly not followed your arguments.

                      You’re now making version 3 of your argument, and you are correct that if a newspaper was given a tape, and had no knowledge or reason to believe that it might have been unlawfully obtained, then it would not be in trouble for publishing it (at least under that law).

                      However that is not the case here. The moment the device was found, the conversation was claimed to be private. The media was aware of this, which is exactly why they all refrained from immediately publishing it. This has been the position since day 1, and today’s court ruling makes no difference to this at all.

                    • RedLogix …
                      23 November 2011 at 6:51 pm

                      Regardless of whether the taping was legal or not; the simple, honest way not to be embarrassed by what you say is …not to say it.

                      Any problem with that concept qstf?

    • Carol 6.3
      23 November 2011 at 2:49 pm

      Stuff reckons they remain private for now:

      http://www.stuff.co.nz/national/politics/6019903/Tea-tape-not-public

      Mind you, TV3 says they have neither been declared public or private:

      http://www.3news.co.nz/Judge-declines-application-to-rule-tea-tape-conversation-public/tabid/419/articleID/233778/Default.aspx

      This means the ‘teapot tapes’ have not been declared public, however this does not mean the judge has ruled the conversation as private.

      • mickysavage 6.3.1
        23 November 2011 at 3:02 pm

        Stuff are soooo wrong. Geez fairfax is really bad this election campaign. They must be up for the Fox News award for independent Election Campaign journalism this year.

  7. felix 7
    23 November 2011 at 2:40 pm

    All right, let’s hear it then!

  8. Tiger Mountain 8
    23 November 2011 at 2:43 pm

    Caution? give her a saucer of milk. Lot of pressure though.

  9. Treetop 9
    23 November 2011 at 2:49 pm

    So is the SG Collins now running the NZ courts?

    Why did the SG not himself rule on whether or not the Banks/Key conversation was private or not?

  10. Pundit X 10
    23 November 2011 at 2:51 pm

    Judiciary suppressing matters of public interest days before a general election. Lets hear no criticism of Fiji pulease..

    • Chris 10.1
      23 November 2011 at 2:55 pm

      How have they supressed it by not forming an opinion either way?

      • Jackal 10.1.1
        23 November 2011 at 6:44 pm

        It’s actually a pretty simple enough matter:

        Winkleman has suppressed the tape by not making a ruling. She has ensured that MSM will not release the tape without a ruling because they fear prosecution. While a ruling is not made… they will defer to caution and also their existing tendency to protect brand Key.

        The issue isn’t unprecedented as some claim… by not making a decisive and timely ruling it appears that Judge Winkleman has deferred a decision because a ruling would look bad for National just before the election.

        1. The ruling is that the recording was made in a public place where Key and Banks cannot expect privacy. There was no arrangement made for a private conversation after the media were invited to attend the meeting.

        We get to hear the tape… Key and Banks are confirmed to be dubious and underhanded.

        2. The ruling is that the conversation is private and the tape is not released through Mainstream media.

        The backlash from this is probably just as problematic for those trying to suppress the tape.

        3. The tape is leaked.

        We get to hear the tape while the damage from example two is added to example one.

        I disagree with Pundit X… this case does not absolve Fiji for their military corruption.

    • insider 10.2
      23 November 2011 at 2:57 pm

      If she had said it was private, that would have denied Ambrose a fair trial if charges were brought because its status would have been the point of any case. Nice gambit on his part but seemingly doomed to fail. The lawyers must have been hoping the judge was stupid.

    • queenstfarmer 10.3
      23 November 2011 at 2:58 pm

      Incorret punditry. The court has not “supressed” the tape. The judge has simply kicked for touch – not enough info to make a definitive ruling.

      • Pundit X 10.3.1
        23 November 2011 at 3:08 pm

        All the NZ media were waiting for judgement. Now they won’t publish. The conversation is effectively suppressed..

        • insider 10.3.1.1
          23 November 2011 at 3:11 pm

          Nothing has changed. They are holding back because they are worried about breaking the law. Breaking the law is usually considered ‘a bad thing’.

        • queenstfarmer 10.3.1.2
          23 November 2011 at 3:13 pm

          If the media choose not to publish, that’s not because of “the judiciary” as you allege. The media choose not to publish things all the time. E.g. they may be worried that it is defamatory, so they don’t publish because they might end up in court. Either way, it’s incorrect to describe such things as the “Judiciary suppressing matters of public interest”.

          • felix 10.3.1.2.1
            23 November 2011 at 3:25 pm

            Last week they claimed to believe they could legally publish the recordings, but chose not to.

            They also claimed the recordings were matters of public interest which could affect the result of a democratic process.

            They most charitable assumption is that they chose not to publish because they weren’t entirely confident of their legal position. The other possible assumption is far more sinister.

            Personally I’m of the view that without a clear indication from the judge that the conversation was private, the public interest should supersede their legal speed wobbles.

            That’s if they are at all interested in assuming their role as members of the fourth estate.

            ps Pundit X did say “effectively” which is not the same thing as accusing the judiciary of deliberately supressing anything.

  11. anne 11
    23 November 2011 at 2:53 pm

    Not making the recording public is bad for democracy in this country,the public’s right to know has been trashed,so what now for democracy? the nats are ahead in the polls labour can not close the gap,good time to leave nz.

    • seeker 11.1
      23 November 2011 at 4:33 pm

      @ Anne
      Agree with what you have said:

      “Not making the recording public is bad for democracy in this country,the public’s right to know has been trashed….”

      Three days from a really important election and as a voting member of the public, I still don’t know why:

      1 we are (really) selling our assets;
      2 what information the government is holding back from us regarding the asset sales
      3 what John Key has set up regarding his secret conversations about deep sea oil drilling
      4 whether our genetic engineering code is going to be tampered with
      5 what john k. said to j.banks which may be ‘game changing’

      and I’m meant to vote with clarity and objectivity this Saturday, having been well informed, not!

      What a democratic farce this government has become – especially, in what I fervently hope, is its death throes.

  12. uturn 12
    23 November 2011 at 2:54 pm

    “The overriding public interest is in allowing the police to go about their task of investigating a complaint, for the police to be able to make their decision as to whether or not prosecute, and leave the criminal process to proceed without interruption,”

    Clearly this is a matter no one wants to touch because the above makes no sense. Effectively it means the police decide what is legal/illegal?

    • insider 12.1
      23 November 2011 at 3:01 pm

      No a judge/jury decide in a criminal trial. Winkelman making a comment on the issue of privacy before a trial could queer the outcome to the detriment of the accused. Innocent until proven guilty and all that.

      • uturn 12.1.1
        23 November 2011 at 3:12 pm

        Your comment would stand if the Police had not already delayed serving search warrants. How could they undermine their own process by following it? They waited because they did not know. They waited for this ruling. The judgement, or lack there of, is a signal that the Police would likely win a case based on whether it was public/private. So why didn’t the Judge rule it was private?

        So what we have here is an (un?)intentional suppression of information. It says yes, you could publish with possibly legal immunity, but you’re 80% sure to lose if anyone tries to prosecute you.

      • Draco T Bastard 12.1.2
        23 November 2011 at 3:18 pm

        Actually, I don’t think it would.

        If the judge declared the conversation public then the charges are dropped.

        If the judge ruled private then the police would continue on looking for intent. It wouldn’t actually change the ruling in that case as the police would have to prove he intended to record a private conversation.

        It’s obvious that the conversation is public (public space and well within hearing of others) so why did the judge decline to decide? And then there’s the fact that the police should have asked this question themselves before starting any other part of the investigation. Our justice department is moving very strangely on this issue.

        • insider 12.1.2.1
          23 November 2011 at 3:47 pm

          Interesting points. I don’t think it is as clear cut as you. I think the presumption should start that any such conversation (by anyone) is private. If you were hunched over your coffee talking quietly to a friend, it doesn’t necessarily make it any less private that it is a cafe. If you were talking in a loud booming voice that carried across the room it would be a bit different. If a person is deliberately trying to listen in at the next table, that is different to someone who hears bits in passing.

          The judge is saying her expressing a view at all creates a risk of prejudice.

          • Draco T Bastard 12.1.2.1.1
            23 November 2011 at 4:37 pm

            216B, Private Communication (b):

            does not include such a communication occurring in circumstances in which any party ought reasonably to expect that the communication may be intercepted by some other person not having the express or implied consent of any party to do so.

            Nothing about purposefully there, nor hunching down over your coffee. Basically, when your in a pubic space where you can expect to be surrounded by the public then you cannot have a private conversation because anybody could intercept it. Any other ruling is bollocks.

            • insider 12.1.2.1.1.1
              23 November 2011 at 5:01 pm

              I disagree and so it appears does the judge because time and effort was spent on discussing distances of people from table, conversation volumes etc and the judge said that part of the law was an objective test and for her to make a ruling she would have to determine the facts and and draw inferences about the conditions in which the conversation took place. That tells me being in a public place does not automatically remove your right to privacy.

              • Draco T Bastard …
                23 November 2011 at 6:08 pm

                distances of people from table, conversation volumes etc…determine the facts and and draw inferences about the conditions in which the conversation took place.

                None of which matter. Shape of the building, materials used, etc etc all influence the way sound will travel. There’s no way that they could accurately determine who could/couldn’t hear. It’s an impossible ruling so go with the blanket statement that all conversations in public spaces are public.

                If you want privacy, get a room (not that two politicians talking about their actions in government should have privacy anyway).

        • Deuto 12.1.2.2
          23 November 2011 at 4:58 pm

          “Our justice department is moving very strangely on this issue.”

          Draco, I assume you mean the justice process or system rather than the justice department. The Ministry of Justice have no involvement in the process of criminal charges until the Police decide to lay charges and the process moves into the court stages of the case.

          In terms of the seeking of the declaration, the Ministry’s involvement would have only been in respect of the administrative aspects of the High Court process – eg setting the date and time of the hearing, providing the courtroom and administrative support to the courtroom, the judge.and the participants.

          Not a criticism – just me being pedantic in respect of the different roles of the Police, the Ministry etc in the overall justice system.

    • Godder 12.2
      23 November 2011 at 3:06 pm

      No, the Police decide if there is sufficient prima facie evidence to establish a criminal act. If so, they lay a charge. A Judge or Jury who hears the evidence then decide whether the charge is proven, which would include determining whether the conversation was public or private.

      • uturn 12.2.1
        23 November 2011 at 3:14 pm

        As above. They had all the cause they needed,but delayed. Why?

        • godder 12.2.1.1
          23 November 2011 at 3:28 pm

          You mean why did the Police delay executing search warrants? In case the Judge ruled it was public I suppose but that doesnt equate to the Police undermining their own process as you assert. I dont agree they waited as they didn’t know if it was public or private – that is an element of what they are investigating and it may be that information they believe they may obtain under warrant will assist in establishing whether it was or it wasnt. That’s what search warrants are often used for, to search for evidence to assist in deciding whether charges should be laid.

          The short point is that the jurisidiction granted to the High Court under the Declaratory Judgments Act isnt meant to be used to usurp the role of a Judge or Jury to decide criminal acts based on contested facts. That’s my reading of the decision. The Court may have felt able to determine in this judgment if it was public or private if there was no dispute as to the facts, but there is a dispute.

  13. anne 13
    23 November 2011 at 2:58 pm

    Do nz’ers take this lying down or find other creative ways of protecting their rights to know
    what key really thinks of us,this is in the public interest and we should know,it does however
    make key look like the dictator that he is,a police state=John Key.

  14. tsmithfield 14
    23 November 2011 at 3:04 pm

    What. A. Bugger. 🙂

    The public will interpret this as:

    Key = right
    Ambrose = wrong.

    I see Ipredict has leapt to 95% for Key and 5% for Goff on this news.

    • the sprout 14.1
      23 November 2011 at 3:06 pm

      no the public will interpret this as Key=something to hide

    • Lanthanide 14.2
      23 November 2011 at 3:43 pm

      Actually iPredict was at those prices before the release of her judgement. I bought up a few more dollars worth of Goff.

      I also made a nice little sum on shorting National Majority when it was up to 80 cents. It’s now back down to a more sensible 45.

    • seeker 14.3
      23 November 2011 at 4:38 pm

      And this is good for democracy why ts?

  15. Lanthanide 15
    23 November 2011 at 3:07 pm

    Having read the relevant parts of the judge’s ruling, I have to agree with her.

    TV3 has a link to it here: http://www.3news.co.nz/Judge-declines-application-to-rule-tea-tape-conversation-public/tabid/419/articleID/233778/Default.aspx

    • insider 15.1
      23 November 2011 at 3:19 pm

      That’s big of you Lanth. I’m sure the judge will be delighted to hear it 😉

      • Dean 15.1.1
        23 November 2011 at 3:22 pm

        Well, since Winkelman hasn’t decided anything and has left the door open for publication, I’m not sure why anyone would have a problem with her decision.

    • William Joyce 15.2
      23 November 2011 at 5:01 pm

      A sound decision from the judge. Sometimes you have to play the hand you’re dealt and we have seen court cases having been taken for no other reason than determining points of law or allowing the full evidence to play out.

  16. Tiger Mountain 16
    23 November 2011 at 3:08 pm

    No one wants to touch it with a 40 foot pole? Are not courts for prodding at difficult matters? And actually making decisions fer crissakes. Sure things take months, at least in industrial law they do. But when a Prime Minister personally takes an action resulting in a police investigation days out from a general election….

    Judge Helen should have called Key and Banksie to account for themselves, and perhaps help her “have an opinion”. I guess some legal types sniffing around here will come up with various squiggly arguments why that should not or could not happen but it cuts little ice for some of us.

  17. joe90 17
    23 November 2011 at 3:10 pm

    In her judgment Judge Winkelmann said:

    “I make it clear that I have not reached any view on whether this was a private conversation, and whether Mr Ambrose’s actions engage S216B. Indeed my decision turns upon the inadequacy of the evidentiary material before me to reach such a view, and in any event, the inappropriateness of my undertaking a mini trial as to whether certain conduct constituted a criminal offence, when exercising the Court’s civil jurisdiction, and in advance of a police investigation or trial.”

    Do the police get to decide whether certain conduct constituted a criminal offence?.

    • uturn 17.1
      23 November 2011 at 3:18 pm

      Yep, you’ve found the strange legal (or possibly just logical) loop she’s applied. I think we’d need an experienced Barrister to even begin to unravel it. Whatever it really is legally, it sure looks dodgy to the layman.

      • godder 17.1.1
        23 November 2011 at 3:41 pm

        The quote from the judgment actually identifies and highlights the issue well .

        The High Court has criminal and civl jurisdictions. Key’s complaint is of criminal conduct, which leads to a Police investigation and, if there is sufficient evidence, the laying of a charge in the criminal jurisdiction. A Judge or Jury then determines the charge having heard the evidence, seen the witnesses under cross examination etc.

        Here Ambrose invoked the Court’s civil jurisdiction by seeking a declaration (a civil remedy) to rule on issues which are normally dealt with in the criminal jurisidction. Winkleman has ruled that is inappropriate.

        • Jim Nald 17.1.1.1
          23 November 2011 at 6:04 pm

          inadequacy of the evidentiary material before the judge??

          ackshully, another judge may have taken another view – that a declaration is sought and so a declaration may and can be given now based on and strictly confined to the evidentiary material that has been presented.

          with judges, ahem, “I can provide you with another one that will give you a counterview”

  18. ianmac 18
    23 November 2011 at 3:15 pm

    And Joe in the same para “Indeed my decision turns upon the inadequacy of the evidentiary material before me to reach such a view,…..”
    Given that the case was over private or not private, and that evidence was presented, it seems by what she said that there is no compelling evidence so far that it was private. Surely if there was strong evidence she could have said “private.”

    • insider 18.1
      23 November 2011 at 3:22 pm

      or was she saying that what was presented was not ‘proper’ evidence and there was not a full discussion and testing of the evidence and issues? Didn’t the SG ignore the privacy issue?

  19. Dean 19
    23 November 2011 at 3:17 pm

    Winkelman: ““I make it clear that I have not reached any view on whether this was a private conversation, and whether Mr Ambrose’s actions engage S216B”

    If you don’t know that Ambrose broke S216B then you can’t break S216C by publishing his recording.

    “Subject to subsection (2), where a private communication has been intercepted in contravention of section 216B, every one is liable to imprisonment for a term not exceeding 2 years who intentionally—

    (a) discloses the private communication, or the substance, meaning, or purport of the communication, or any part of it; or

    (b) discloses the existence of the private communication,if he knows that it has come to his

    knowledge as a direct or indirect result of a contravention of section 216B.”

    Pretty simple.

    Publish it.

  20. Blue 20
    23 November 2011 at 3:26 pm

    How hard can it be to decide if a conversation is private or not? The judge has ruled that it’s a political hot potato and she’s not touching it before the election.

    TV3 need to get some balls and publish it now. The HOS won’t, they’re still busy trying to pretend they’re not a tabloid.

    • Tiger Mountain 20.1
      23 November 2011 at 3:40 pm

      “The judge has ruled that it’s a political hot potato and she’s not touching it before the election”

      Yep that was the actual ruling. Freedom below, +1.

    • Vicky32 20.2
      24 November 2011 at 4:15 pm

      “TV3 need to get some balls and publish it now. The HOS won’t, they’re still busy trying to pretend they’re not a tabloid.”

      Sadly, they’ve meekly handed it over to the poliss. Proof if any were needed that TV3 suck biggly…

  21. freedom 21
    23 November 2011 at 3:28 pm

    “my decision turns upon the inadequacy of the evidentiary material before me to reach such a view,”

    What more info could the Courts possibly require. They have access to all relevant witnesses – John Key, John Banks, also a couple of dozen media folk, and approximately twenty civilians. There are a butt load of images of the physical environment, and then there is the recording itself though that is hardly relevant to the decision as this case is about the context of the recording, not the content.

    What other info do you require to say if a conversation was private or public ?

    Defend the legality of the Justice’s actions all you want .
    It is judicial manipulation of public interest and nothing will change my mind on that

    • godder 21.1
      23 November 2011 at 3:48 pm

      The Court hasnt had access to all witnesses. No-one has given oral evidence or been cross-examined.

      • freedom 21.1.1
        23 November 2011 at 3:57 pm

        If the Chief justice wants to talk to someone, anyone, anytime in the process of a decision, they can.

        For the Chief Justice to say there was not enough evidence to declare the situation private or public is difficult to believe. This case was not about the content of the tape so what new evidence will be discovered in the future that can supplement the ample weight of evidence already upon the desk.

        you could say it is a lame deer on open ground , pity the hunter was bilndfolded

        • Godder 21.1.1.1
          23 November 2011 at 4:05 pm

          Actually, the CJ can’t on her own volition talk to anyone, anytime at any point. That would be highly unusual.

          Ambrose chose to use a particular civil process. He sought an urgent ruling which precluded oral evidence and cross-examination. That was always going to mean that if the Court found there was a dispute on the facts (which can only be resolved by having the witnesses give oral evidence and having them cross-examined) it was highly unlikely to issue a declaration (whether it be the conversation was private or public). Any litigation who seeks urgent Court intervention no matter what the circumstances runs that risk. He ran the risk and he lost.

          Just one issue – Ambrose swore in an affidavit that he didnt hear the direction to remove any recorders or no recorders will remain on the table (or whatever it was). My understanding is that’s not accepted and he needs to be cross-examined and tested on that evidence but a) the process he chose doesnt allow for that and b) a Judge or Jury sitting in the criminal jurisidciton are the decision makers for that type of issue.

          • freedom 21.1.1.1.1
            23 November 2011 at 4:20 pm

            Just because something is not usually done does not preclude it occuring.
            Law is meant to be tested, always and fully, to protect it and to strengthen it.

            this postponement of responsibility is cancelling a rafting trip because it is raining

            • godder 21.1.1.1.1.1
              23 November 2011 at 4:39 pm

              I agree fully the law should always be tested but it has to be done in a principled way. The fact that something is not usually done (although its arguable what Ambrose wanted has not ever been done) should at least mean there has to be exceptional reasons to do it now.

              What you seem to want is that in this case the Chief Justice ignore settled principles of law and process and rule on an issue which is the domain of a jury and having not heard all the evidence. I dont agree with that.

              • freedom …
                23 November 2011 at 5:03 pm

                obviously i am not a lawyer,
                but i feel i get the gist of the separate issues and the separate cases at stake here.
                What i consider to be reasonable in this situation is a yay or nay towards whether the environment the recording was made in is private or public.

                There is more than enough relevant information for evidentiary discussion to be made. Importantly, if deemed public then the decision would not unnnecessarily commit further resources of the Police and the Courts. Except of course those resources that rightly follow any impending charges relating to any unlawful actions or accusations by known parties.

                If deemed private then the Police investigation into how the recording was made can continue with the Police confident that they are acting in full compliance with the law relating to the prosecution of a criminal act.

                when a horse falls they generally see if the leg is broken before they shoot it dead
                this time it appears the glue factory is taking orders before the horse even leaves the gate

    • insider 21.2
      23 November 2011 at 3:53 pm

      Freedom

      None of those people were in court so the issues weren’t examined. No manipulation at all. Nothing sinister. SHe’s just saying there was no chance to do this in a proper way. Would you want charges against you heard without being present and the opportunity to examine witnesses?

      • freedom 21.2.1
        23 November 2011 at 4:26 pm

        do not confuse the talk of a possible defamation case or a complaint laid by the PM with the decision requested of this case regarding the legality of the recording a conversation.

        • godder 21.2.1.1
          23 November 2011 at 4:35 pm

          But the decision requested was in the wrong forum. The legailty of the recording cannot be determined by the request for a declaration using the civil jurisdiction.

          • freedom 21.2.1.1.1
            23 November 2011 at 5:42 pm

            then why was it even heard? The whole gamut of protocols that are in place in our justice System and this gets a Chief justice in the High Court. Yet people now turn around and say it was the wrong forum. Judicial manipulation of information that is now, undoubtedly in the public interest.

    • seeker 21.3
      23 November 2011 at 5:26 pm

      @ Freedom 3.28pm

      “my decision turns upon the inadequacy of the evidentiary material before me to reach such a view,”

      “It is judicial manipulation of public interest and nothing will change my mind on that.”

      Maybe you are right, because when the tapes are scrutinised ( I recorded both news channels on this last night) one can see someone quickly clearing Key’s table of objects saying ‘take your mikes’ or something, but they leave that now infamous ‘black bag’ on the table.

      This, I thought, showed a) the bag being there was not solely down to Ambrose and b) they (security) couldn’t have been too worried about ‘privacy’ if they did not clear the table properly.

      Further, Ambrose asked if he could go and get his bag, so it shows he was probably at the back and didn’t hear what was said when the place was cleared.

      At least he tried to go and get his bag and so ‘clear the table properly, but he was denied access, so was not trying to purposefully ‘tape’ the two Johns.

      It also shows that as Ambrose had needed to ask, if he wanted get his expensive belonging back, that it was there before he left and had not been retrieved and/or given back to him as some one had done in camera sight with other ‘blackish ,baggy’ belongings I saw removed from the table.

      This whole mess is because John Key says one thing in public and apparently another thing, in what amounts to ‘under his breath’, which he calls ‘private’ when he means ‘two faced’ and does not like being caught out about it(who would)

      The other reason for the ‘police’ aspect of this horror mess (especially for a probably pretty ‘innocent of purposefully recording’ said ‘duplicitous’ remarks by John and John , Ambrose) is Stephen ‘call the police’ Joyce.

      I am sure the judge could have seen ‘the clearing of bags from the table’ on the video recording. I don’t think I am wrong about this .I watched it twice last night.

  22. mike 22
    23 November 2011 at 3:28 pm

    “According to Fairfax Media the decision clears the way for police to search TVNZ, Radio New Zealand, TV3 and the Herald on Sunday.

    They quote Radio New Zealand head of news Don Rood as saying he expected a visit today – police had told him “see you on Wednesday” the last time they spoke.”

    So no decision means the search warrants still stand? That sucks…

    • jaymam 22.1
      23 November 2011 at 4:23 pm

      I hope to see all of those media with the police search as their lead story, until after Saturday.

      • mike 22.1.1
        23 November 2011 at 4:31 pm

        Yes police searching media outlets because the PM is concerned about a recording of his words should be a big story, let’s see if it is.

    • Chris 22.2
      23 November 2011 at 6:23 pm

      The search warrants were always going to still stand. The police just wouldn’t have bothered executing them if she had decided that it was public.

      Which is basically why she didn’t rule either way – she didn’t want to prejudice (against either side) any ongoing police investigation.

  23. Carol 23
    23 November 2011 at 3:42 pm

    Andrew Geddis reckons that the judge delivered the ruling he expected, and that it doesn’t indicate she’s been “leaned on” by the powers that be. He also reckons that no criminal charges will be brought for this case, but that the “tapes” shouldn’t be published before the elections for “ethical” reasons. I’m not sure what his reasoning is on that last bit:

    http://www.pundit.co.nz/content/the-bradley-ambrose-non-decision

    (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 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.
    […]
    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.

    • mike 23.1
      23 November 2011 at 4:20 pm

      Hold up. So the judge said that a conviction here is very unlikely, yet the search warrants are still going ahead? Is it just me or is that a bit loopy?

      Also I believe that only those who have heard the tape should have an opinion as to whether releasing it is ethical. What if, hypothetically now, the tape shows Key is lying to the public in a serious way? Then it would surely be unethical not to release it. So where is the line? Only those who have heard the tape can decide, the rest of us can only wonder.

      Granted, those who have heard it have chosen not to release it. But anyone who thinks that journalists and editors of news organisations always make ethical decisions based on high principles should read this article:

      http://www.monbiot.com/2004/10/06/no-longer-obeying-orders/

      Meanwhile real issues get pushed aside such as National quietly releasing an awful education policy that gets no attention. Giving the public less than a week, not enough time, to consider it before the election.

      http://thestandard.org.nz/nats-education-policy/

      • Carol 23.1.1
        23 November 2011 at 5:04 pm

        No Andrew Geddis said that the case is unlikely to result in any conviction. The judge didn’t say anything like that. She left it open for the police to investigate.

        I also think the case is becoming a distraction from important election issues.

        • Pundit X 23.1.1.1
          23 November 2011 at 5:25 pm

          The case is becoming a distraction for Standard readers simply because there is a widely held belief that the conversation if exposed to fresh air would spell the end for Key. Whether that actually distracts from the issues that are framing the election is open to question. I’m of the view that publication of the conversation would prejudice Key’s re-election. Nevertheless there is certainly a healthy debate taking place on policiy issues but disappointingly it isn’t translating into support for the left..

        • mike 23.1.1.2
          23 November 2011 at 6:44 pm

          Ah I see. The way the quote was laid out confused me.

    • Jim Nald 23.2
      23 November 2011 at 5:39 pm

      While on the topic of ethics, this needs to be said – the actions of the two Johns have revealed their hypocritical and unethical behaviour.

      Voters who are discerning should be distrustful of their double act of theatre and scamming.

  24. anne 24
    23 November 2011 at 4:26 pm

    If 4.5 million people say they published it,how can they prove who did?

  25. mik e 25
    23 November 2011 at 6:12 pm

    I bet you the tape had something about undermining Len Brown As well

  26. Jester 26
    23 November 2011 at 6:31 pm

    Just saw the decision. Man what a game-changer!

  27. coolas 27
    23 November 2011 at 6:40 pm

    This may have been asked before and I missed it, but why doesn’t someone, anyone, who has the transcript sent it to Australia and have it published there?

    • mike 27.1
      23 November 2011 at 7:02 pm

      I’m trying to decide between:

      a) The journalists and editors involved operate on a very high standard of ethics and principles.

      b) Not doing so increases antipation and demand for their product once they do release it.

      Cast your vote now!

      I wanna hear the tape rather than just read a transcript…

  28. dad4justice 28
    23 November 2011 at 8:08 pm

    Another Jellyfish bitch judge. Yawn, yawn, NZ justice is a sick expensive joke! FFS when will it be fixed? Maybe I should ask John or Helen or Heather or Justice Potter or Peter?Fuck you scum of the earth liars. What a load of lies you pollie types spin.It’s a sick person that votes for such loser lying creeps!!!

    • Draco T Bastard 28.1
      23 November 2011 at 8:32 pm

      FFS when will it be fixed?

      When we get 20+ years of left-wing government that goes through all our centuries of laws and legal precedent and gets rid of the BS and replaces it with something rational. Or, and when we get full participatory democracy which does the same thing – which ever comes first.

  29. Mike 29
    23 November 2011 at 11:20 pm

    An interesting aside : see the 3 paragraph on Professional comments

    http://www.kiwisfirst.co.nz/index.asp?PageID=2145845379

    • mike 29.1
      24 November 2011 at 2:37 am

      Interesting link Mike I shall quoth from it:

      Helen Winklemann:

      “…However, in the last two years, Winkelmann J has demonstrated a worrisome tendency toward unduly protecting the Crown and powerful interests from legal accountability in secret.

      Helen Winkelmann J is timid by nature and personally dowdy. She is bright, but extremely reticent to confront her fellow judges when they pervert the rule of law or engage in personal misconduct. Winkelmann also staunchly considers it is every judge’s right to routinely suppress the open public function of their actions and rulings. These traits were instrumental in her peers supporting her promotion to Head of the High Court Bench in 2009.

      Would have close connections with Banks and key businesses from her legal practise. She has delivered a number of Auckland District Law Society seminars on aspects of company law including creditors remedies and fiduciary duties.

      Winkelmann J was the High Court Judge who revoked bail in the ill-fated terrorist prosecution by the Police (September 2007), reversing bail terms granted by Auckland District Court Bouchier. Suspects consequently spent a month in prison without bond until the terrorism charges were eventually dropped. This case revealed Winkelmann J is very susceptible to political pressure (she was aware there was no credible evidence in the Police terror charges when she revoked bail). In December 2010, Winkelmann J denied these 18 defendants their statutory right to trial by jury on reduced weapons charges, then ordered the Court staff to conceal the judgment reasoning which stated jury members would likely use “improper reasoning processes” in deliberation.

      Winkelmann J will rule according to law and facts in most cases where political pressure is not brought to bear. However, her extreme sensitivity to publicly exposing corruption by public officials is becoming commonplace. In September 2009, she ruled there was no reasonable cause for issuance of 6 of the 9 land warrants executed by the Police in the ‘Terrorist raids’ debacle in September 2007. But Winkelmann J suppressed her judgment from the public in what was clearly an attempt to unduly protect the Police and judicial officials from scandal.”

      Sounds like a very handy judge for politicians.

      • uturn 29.1.1
        24 November 2011 at 7:25 am

        I accept this site publishes opinion and all are welome to theirs. I don’t fully understand the non-decision over this aspect of the tea tapes or how it happened, but the blogsite the above article came from is going too far. I do not believe a lack of legal knowledge makes it ok to begin commenting on a person’s gender, dress sense and manner as an introduction to alleged corruption or not. It then makes any evidence of historical behaviour and rulings suspect through the bias of the author.

  30. jaymam 30
    24 November 2011 at 10:05 am

    Wouldn’t it be a good idea for someone like Winston to publish the transcript in the next day or so?
    That would get lots of publicity for Winston and more hits on Key and Banks. How bad can the penalty be for publishing?

  31. Pundit X 31
    24 November 2011 at 10:10 am

    Winston doesn’t have a transcript to publish. But if someone does and would like to publish anonymously before the election. let me know. fotografiejc@googlemail.com

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