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No declaration after tea
By Steven | November 23, 2011
Winkelmann J has declined to grant a declaration that the famous Epsom cuppa was not a private conversation.
Does that mean it was a private conversation? No, it just means that she’s declined to rule on the issue right now.
She gives several reasons. First, there are still facts in dispute, and she wan’t sure she had adequate evidence to determine them. She says this despite watching footage from the four (!) TV3 cameras at the event, and receiving a lengthy description of events from Ambrose and another from the PM’s chief of staff. There don’t seem to be many facts actually in dispute, and Winkelmann J barely mentions any. She does say that TV3 and Ambrose seem to be at odds about what the media were told before the event, but this seems fairly inconsequential. She also notes that she hasn’t heard from many of the witnesses to the cuppa, who may well have something to add to the video evidence. She says the police haven’t finished gathering evidence. She didn’t want to “conduct a mini-trial” to sort out factual issues… this is a far cry, she says, from a ruling on the interpretation of a statute when the facts are clear.
Second, she doesn’t want to gazump the police investigation. Ambrose’s lawyer seems to have submitted that (a) this case has nothing to do with the police investigation and (b) that if the declaration was granted, it would save the police time (presumably because they could end the investigation, one element of the crime having been definitively disproved). Winkelmann decided it would be inappropriate for a civil court to influence – and perhaps end – a criminal police investigation and consequent prosecution decisions. (Surely everyone in the courtroom must have realised that a declaration from her would have effectively ended the investigation).
Ambrose and the media strongly urged her to consider the public interest in the taped material, with the election looming. Ambrose and the media need clarity about what can be published. That’s a reason for exercising her power to issue a declaration, they argued. But the judge disagreed. Any declaration would have to be so hedged about with qualifiers (“on the basis of the evidence that was before me” etc) that it would still leave confusion about what could be published. (I’m really not so sure about that. A judicial indication – even a hedged one – would be a licence to the media to publish, because the police could hardly prove, after that, that the media knew the material was illegally intercepted.)
None of this is really a surprise. I don’t think the judge can be criticised for the ruling, even if another judge may have taken a bolder approach.
What I was really interested in was any hint from the judge that there’s at least serious doubt about whether the conversation was private. If she’d dropped that hint, the media could probably have published. Again: if a judge says it’s a hard call, or indicates a leaning toward considering the conversation public, then it’s hard to see a prosecution against the media for publishing it.
I suppose you can try to draw out some indication in this judgment that the issue is seriously contested. That there’s doubt. But it’s hard. The judge scrupulously avoids making any finding. She explicitly says she hasn’t formed a view about whether the conversation is private. If that indicates some doubt – it also indicates the possibility of criminality.
So I can’t see anything that helps the media here. In fact, the opposite may be the case, because in traversing the evidence for each side, the judge describes factors that point toward the private nature of the conversation:
— The Chief of Staff says, after the public bit, “Thanks guys, why don’t we just leave them to have a chat?”
— Key says “Have a chat, yeah, thank you. Get yourselves a cup of tea, enjoy the moment”.
— Mr Ambrose accepts that he heard the instruction to leave.
— The Chief of Staff saw a mic on the table and said “Ah, we’re not leaving microphones here, thank you”.
— Diplomatic protection squad members seem positioned to create a sort of cordon.
It’s looking less and less likely that the actual content of the tea tape will see the light of day before the election.
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