23 Nov 2011

Judge refuses to make ruling on 'tea tape' recording

8:21 pm on 23 November 2011

A High Court judge has refused to rule on whether the 'tea tape' conversation between John Key and John Banks was private.

Shortly after the decision was released at 2.30pm on Wednesday, police investigating a complaint laid by Mr Key over the recording executed search warrants on two media organisations. Warrants against four media outlets, including Radio New Zealand had earlier been issued.


It now appears unlikely the secret recording will be made public before the election, if at all.

The conversation between the National Party leader and ACT's Epsom candidate was recorded at a cafe in Newmarket on 11 November by freelance cameraman Bradley Ambrose.

The Auckland meeting was widely viewed as a signal to National supporters that they should vote for Mr Banks.

Mr Key laid a complaint with police saying the conversation was private and recorded illegally.

Mr Ambrose subsequently sought a ruling at the High Court in Auckland over the conversation and his lawyers on Tuesday argued the discussion was public. Counsel for the Crown, media and Mr Key also presented their case.

Judge's decision

In her 21-page judgment issued on Wednesday afternoon, Justice Winkelmann said that having considered the evidentiary material before her she would decline to make a declaration.

Justice Winkelmann said that in declining to exercise the discretion to make a declaratory order she had "not reached any view on whether this was a private communication and whether Mr Ambrose's actions engage section 216B (of the Crimes Act)."

"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."

The judge said making a declaration would likely disrupt and confuse the conduct of an ongoing police investigation and perhaps prejudice the administration of justice.

The lawyer for Mr Ambrose told Checkpoint that they are happy to hand over any footage recorded, and are confident that police will not lay charges.

Ron Mansfield said they were happy for the matter to be fully investigated because the police would come to the conclusion that it wasn't a private communication and was not recorded intentionally.


Solicitor-General David Collins QC would not comment on the court's ruling, but had on Tuesday urged the judge to oppose the declaration saying that Mr Ambrose could argue his case in court if criminal charges were laid.

National's leader John Key says he has noted the court's decision but is not commenting on it, and says he remains focussed on the issues.

ACT's John Banks says the case was always going to be an expensive exercise in futility, and the decision is a smart one.

Labour Party leader Phil Goff says he respects the independence of the court and will not be commenting specifically on the substance of the decision.

However, he said the investigation into the tea tape had been a huge waste of police time and taxpayer money, as the police are bound to respond to a complaint laid by the Prime Minister.

Police execute search warrants

At the meeting on 11 November, Mr Ambrose had put his microphone on the table and then gave the recording to the Herald on Sunday newspaper. TV 3 has a copy of the recording.

Police had earlier issued search warrants on APN, which owns the Herald on Sunday, TV 3, Television New Zealand and Radio New Zealand as part of their investigation into the complaint laid by Mr Key.

Herald on Sunday editor Bryce Johns has confirmed two police detectives executed a search warrant at the newspaper's offices on Wednesday afternoon.

Mr Johns says some material was handed over but he is refusing to specify exactly what that was.

TVNZ has confirmed it has handed field footage to the police of the cafe encounter between the two politicians.

A spokesperson says the organisation was not required to disclose any sources during the search.

TV 3 is anticipating that police will contact or visit the organisation on Thursday.

Radio New Zealand has been contacted by police after Wednesday's court judgment. Head of News Don Rood said the organisation was considering the court's decision and consulting its lawyers.