A High Court judge has reserved her decision on whether a conversation in a cafe between John Key and John Banks was private.
Lawyers for the cameraman who recorded the conversation between the National Party leader and the ACT candidate for Epsom are asking for the declaration at the civil hearing, but the Solicitor-General opposes this.
The conversation between Mr Key and Mr Banks was recorded by freelance cameraman Bradley Ambrose, who put his microphone on the table and then gave the recording to the Herald on Sunday newspaper. The details have not been made public.[image:3835:full]
The meeting at Urban Cafe in Newmarket in the Epsom electorate on 11 November was widely viewed as a signal to National supporters that they should vote for Mr Banks on election day.
Police are investigating a complaint laid by John Key, who says the conversation was private and recorded illegally.
Mr Ambrose's lawyer, Davey Salmon, says his client is being defamed and has asked Justice Winkelmann to declare that the conversation was not private, saying the politicians staged the media event.
On Tuesday, up to a dozen lawyers representing the Crown, media, John Key and Bradley Ambrose argued their cases in the Auckland High Court in front of a courtroom packed with media organisations. Neither Mr Key nor Mr Ambrose were present.
During the hearing camera footage provided by 3 News was played, showing interactions between the politicians and media at the meeting.
Mr Salmon told the judge that the TV footage shows that noises from within the cafe can be picked up on microphones from outside. Conversations between other diners can also be heard on the camera footage, making their conversations public as well.
Mr Salmon said while Mr Key and Mr Banks asked that microphones be removed from their table, they did not ask not to be recorded or listened to. He said parts of the conversation could have been overheard by anyone in the cafe and if Mr Key and Mr Banks wanted to have a private discussion, they should have done it in a more private location.
Mr Salmon told the court that releasing the material could prevent rumour-mongering, misinformation and the leaking of aspects of the tape's contents by some politicians.
Justice Winkelmann raised concerns about how the civil court ruling could affect the police investigation. But Mr Salmon told her the ruling is needed because his client is being defamed, which could affect any future trial if criminal charges are laid.
Voters have right to hear tape, says TV3
A lawyer for TV 3 told the hearing that voters have a right to hear the recorded conversation between John Key and John Banks because it was in the midst of a "theatrical election stunt".
Lawyer Julian Miles said TV 3 has handed over all of its audio of the meeting to the court in evidence and the network supported Mr Ambrose's stance that the conversation was very public.
Mr Miles said the media also had a responsibility to keep voters informed during the election campaign, which included the staged cafe meeting between Mr Key and Mr Banks where both the media and the public were invited to join them.
Hearing inappropriate - Solicitor-General
Solicitor-General David Collins wrapped up the hearing on Tuesday afternoon, saying he believes it is inappropriate as the judge is being asked to take on the role of a jury.
Mr Collins said that Mr Ambrose can argue his own case in court, if criminal charges are laid.
He said can't recall a time where a civil court has ruled on a case where criminal proceedings are a possibility, facts are in dispute, and where the Crown strongly opposes such a declaration being made.
Justice Winkelmann is set to announce her decision on Wednesday afternoon.
Police are holding off enforcing search warrants on APN, which owns the Herald on Sunday, TV 3, Television New Zealand and Radio New Zealand for material relating to the recording until after the hearing.