Brose v The Attorney-General
| Jurisdiction | New Zealand |
| Judge | Winkelmann J |
| Judgment Date | 23 November 2011 |
| Neutral Citation | [2011] NZHC 1654 |
| Docket Number | CIV 2011-404-7392 |
| Court | High Court |
| Date | 23 November 2011 |
Under The Declaratory Judgments Act 1908
[2011] NZHC 1654
CIV 2011-404-7392
IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY
Application under s2 Declaratory Judgments Act 1908 for a declaration that a conversation between Prime Minister John Key and Act party candidate John Banks was not a private communication — parties met at café and invited media to take photographs — media then told to leave — some media and members of public remained in the café — recording device left on table — whether recording was an unlawful interception of a private communication under s216B Crimes Act 1961 (prohibition on use of interception devices) — ongoing Police investigation concerning media outlets — whether the Court had jurisdiction to make a declaration which required determination of mixed questions of fact and law — definition of private communication.
D M Salmon, M Heard and K Simcock for the plaintiff
D B Collins QC and S Kinsler for the Attorney-General
A Caisley and M Piper for Hon John Key
No representation for John Banks, or APN New Zealand Limited
J Miles QC and C Bradley for TVWorks
JUDGMENT OF Winkelmann J
Mr Ambrose is a freelance photographer and camera operator. In the course of this work he recorded a conversation between the Prime Minister of New Zealand, the Right Hon. John Key, and the Act Party candidate for Epsom, John Banks, which occurred at a café in Newmarket on 11 November 2011. The meeting between these two men was a much anticipated event. In the weeks preceding it there had been widespread speculation in the media as to whether the Prime Minister would have a cup of tea with Mr Banks as a signal of his endorsement of the candidacy of Mr Banks for the Epsom seat. The Prime Minister's endorsement is significant because Act is a potential coalition partner for the National Party should it come to form a government following the general election scheduled for 26 November 2011.
On 14 November 2011 the Prime Minister lodged a complaint with the police, alleging that the recording of the conversation was an unlawful interception of a private communication, an offence under s 216B of the Crimes Act 1961 punishable by up to two years imprisonment. Following receipt of that complaint, and on the same day, police issued an urgent media advisory confirming receipt of the Prime Minister's complaint, and advising media outlets that it is an offence to disclose private communications unlawfully intercepted. In light of these events neither the recording nor a transcript of it has been released to the public, although there has been some speculation as to the topics discussed.
Mr Ambrose seeks a declaration from this Court under the Declaratory Judgments Act 1908 that the discussion between the Prime Minister and Mr Banks was not a “private communication” for the purposes of s 216B of the Crimes Act. He has sought this declaration on the grounds that statements made by the Prime Minister suggest that he has been guilty of criminal conduct, and that this is damaging to his reputation, and preventing him dealing with the recording, in respect of which he is the copyright owner. He brings this application to enable him to clear his name and to clarify his ability to deal with the tape.
The proceeding was served on the Prime Minister and Mr Banks. Mr Banks has elected not to participate in this proceeding. Although the Prime Minister was represented by counsel at the hearing, he abides the decision of the Court.
This proceeding was served upon the Attorney-General because the relief sought has an effect upon an on-going police investigation, and potentially if charges are laid, upon a criminal trial. The proceeding has also been served upon TVWorks Ltd (TV3), and APN New Zealand Ltd (Herald on Sunday), media organisations which have copies of the recording. TVWorks was represented at the hearing.
On the application of Mr Ambrose the proceeding received an urgent hearing. Affidavits were filed by Mr Ambrose and by the Prime Minister's Chief of Staff, Mr Eagleson, describing events they were involved in. An affidavit was filed by Detective Inspector Grantham, the officer in charge of the investigation of the complaint, describing the police investigation to date. Mr Mark Jennings, Director of News for TVWorks, provided an affidavit in which he describes coverage of the “cup of tea” meeting, and the significance of the conversation as recorded by Mr Ambrose. I have also viewed TVWorks footage captured on four cameras they had present at the event.
The event at the cafe was arranged by the Prime Minister's Office. It was attended by a large media contingent, with approximately 40 media representatives present. It is common ground that it was organised to ensure coverage in the press and on television. The Prime Minister's Chief of Staff, Mr Eagleson, says in his affidavit that prior to the “cup of tea” meeting he and other members of the Prime Minister's staff spoke to the media people present. They explained that media would be provided with an opportunity to photograph and film the Prime Minister and Mr Banks and to record preliminary exchanges between them. The briefing covered that all media people would then be required to leave the vicinity where the Prime Minister and Mr Banks were seated. Mr Eagleson says that this was to enable the Prime Minister and Mr Banks to have a discussion to which others would not be privy. However, during this time, the media would be free to film and photograph the meeting from behind a solid glass window which he describes as soundproof.
Mr Eagleson said that it was intended that the media would again be given an opportunity for photographs and brief questions after the private conversation between the Prime Minister and Mr Banks.
Mr Ambrose's account is that he received no briefing, nor was he aware of any statements suggesting that any aspect of the event was intended to be private.
The film that I viewed revealed events as follows. As the Prime Minister arrived at the cafe” there was some initial engagement between the media, the Prime Minister and Mr Banks, which then continued for a time inside the café. The two men sat at a table which is close to the end of the glass wall Mr Eagleson refers to. After a few minutes or so the media were asked to retire from the immediate area where the two men were seated. Mr Eagleson said to the media “thanks guys, why don't we just leave them to have a chat”. Mr Key said “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. Mr Eagleson saw a microphone on the table and said “Ah, we're not leaving microphones here thank you”.
It seems that members of the diplomatic protection squad then positioned themselves around the inside of the café, possibly to create some sort of cordoned off space around the two men. Most members of the media were ushered out of the café by members of the Prime Minister's staff, although some remained inside the café. So too did members of the public (some at tables nearby) and café staff.
After the media withdrew the Prime Minister and Mr Banks had a conversation over a cup of tea. Unknown to the Prime Minister's staff, the Prime Minister or Mr Banks, a small black pouch containing a microphone, the property of Mr Ambrose, remained on the table throughout their conversation, and that is visible on the film.
Mr Ambrose's account in his affidavit is that the event was a “media scrum”, and he was anxious that he would not capture sufficient film coverage of the event. In the confusion he left the pouch on the table, with the microphone in it. At some point — it is unclear from his affidavit quite when — he became aware it was still on because of a light indicator on his camera. Mr Ambrose recovered the black pouch at the end of the event although the Prime Minister's staff were initially reluctant to hand it over. He subsequently provided a copy of the recording to the Herald on Sunday and TVWorks.
Mr Ambrose brings the proceedings under ss 2 and 3 of the Declaratory Judgments Act 1908:
2 Declaratory judgments
No action or proceeding in the High Court shall be open to objection on the ground that a merely declaratory judgment or order is sought thereby, and the said Court may make binding declarations of right, whether any consequential relief is or could be claimed or not.
3 Declaratory orders on originating summons
Where any person has done or desires to do any act the validity, legality, or effect of which depends on the construction or validity of any statute, or any regulation made by the Governor-General in Council under statutory authority, or any bylaw made by a local authority, or any deed, will, or document of title, or any agreement made or evidenced by writing, or any memorandum or articles of association of any company or body corporate, or any instrument prescribing the powers of any company or body corporate; or
Where any person claims to have acquired any right under any such statute, regulation, bylaw, deed, will, document of title, agreement, memorandum, articles, or instrument, or to be in any other manner interested in the construction or validity thereof,—
such person may apply to the High Court by originating summons for a declaratory order determining any question as to the construction or validity of such statute, regulation, bylaw, deed, will, document of title, agreement, memorandum, articles, or instrument, or of any part thereof.
The grant of relief is discretionary:
10 Jurisdiction discretionary
The...
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