Thursday, November 17, 2011

Has Duncan Garner broken the law?

We've just received a very interesting e-mail from a friend who is a lawyer, but who has asked to remain anonymous; this person writes:

I was just reading another article where Duncan Garner again offered to show a transcript of the illegally obtained recording - this time to Don Brash. I thought to myself surely if it is an illegal recording then it must also be illegal to publish it.

Sure enough:

216CProhibition on disclosure of private communications unlawfully intercepted
(1)Subject to subsection (2) of this section, where a private communication has been intercepted in contravention of section 216B of this Act, 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 of this Act.
(2)Subsection (1) of this section does not apply where the disclosure is made—
(a)To a party to the communication or with the express or implied consent of such a party; or
(b)In the course, or for the purpose, of—
(i)An investigation by the Police into an alleged offence against this section or section 216B of this Act; or
(ii)Giving evidence in any civil or criminal proceedings relating to the unlawful interception of a private communication by means of [[an interception device]] or the unlawful disclosure of a private communication unlawfully intercepted by that means; or
(iii)Giving evidence in any other civil or criminal proceeding where that evidence is not rendered inadmissible by the [[Evidence Act 2006]] or section 25 of the Misuse of Drugs Amendment Act 1978 or any other enactment or rule of law; or
(iv)Determining whether the disclosure is admissible in any civil or criminal proceedings.]

So it is fairly clear that s216B of the Crimes Act has been infringed yet all week the media, and TV3 in particular, have been asking leading questions on what has been said - basically disclosing the contents of the private communication. Note that the definition is wide it includes "the substance" - and that's before we even get to disclosing the existence of the illegal recording.

Now I guess, in relation to the latter, the various media can argue they did not know it was illegally obtained - the HOS was all very innocent about it so it was ok to publish. That is a defence if it is believed.

But given the matter is now in front of the police a lack of knowledge can not be argued. Of course it may still be argued that s216B was not infringed (good luck but the standard is a high one of beyond reasonable doubt and stranger things have happened). If that occurs then there is a complete defence.

However if reality and the law collide and the recording is illegal then Duncan Garner has probably already fallen afoul of the s216C as the disclosure was made intentionally and in the knowledge that it was in breach of s216B. There is not a lot of law on this section but I would expect knowledge to be knowledge of the circumstances it was obtained, even reckless as to whether or not illegally obtained - otherwise the law would be meaningless.

Secondly he appears to be blatantly attempting to break the law by handing out transcripts. I can see no defence under the section for handing out transcripts.

Obviously this opinion is on an all care no responsibility basis as I can only spend so much of work time researching media malfeasance - and given it is off the cuff I would prefer not to be named if you want to push this angle.

Very interesting. And given that it would seem that someone has given Winston Peters an insider's insight into the content of the tape, there may well be more than one offence committed so far.

We will watch developments over the last few days with interest.


smttc said...

You may not have to wait very long. Winston Peters has decided to be a busy body interloper and reveal the contents of the tape during the meeting he is currently in.

I hope he ends up with egg all over his face as a result.

Raymond A francis said...

Have to laugh at the media which is now refusing to give up evidence to the police, on what grounds?
This is the crew who have been braying at the PM to give to up in the"public interest"
Different story now boys

smttc said...

Newstalk ZB reports:

"New Zealand First leader Winston Peters has apparently spilled the beans on what John Key and John Banks spoke about during their cup of tea meeting in Auckland last week.

In a speech in Invercargill this afternoon he's told a gathering at the local Working Man's Club that the pair talked about the rebuilding of the ACT party.

Mr Peters says John Key also told Mr Banks who the new ACT leader should be.

Mr Key also made a remark that Winston Peters' constituents are dying and that he believes National could get enough votes on election day to govern alone.

Mr Peters says John Key has been found wanting and it's time for the New Zealand electorate to take action at the ballot box."

Yawn. Like Key said - bland, bland, bland.

Quintin Hogg said...

I think the answer to your question I2 is yes.

I'd love to see Winston tapped on the shoulder by the Rozzers.

The look on his face would be priceless

Anonymous said...

"John Key has suggested a recent fall in the crime rate meant police had ''spare time'' to investigate the so-called tea tape."

What a narcissist. Sounds like monty python.
He really has become the village idiot.

prideofthesouth said...

anonymous at 3.59pm

"He really has become the village idiot."

Oi, that title is already taken, and banned from Kiwiblog under that name and "Greenfly".

James Stephenson said...

I'm sure Whale will be watching for potential double-standards for "journalists" versus bloggers...

Anonymous said...

Ummmm ok.... Not sure what you're getting at, it's a generic term I thought. Substitute 'incompetent fool' if you'd prefer?

toad said...

Read the definition of "private communication" in the Crimes Act, IV2.

Adolf Fiinkensein said...

How many meat pies per day do they give journos in the slammer?

Adolf Fiinkensein said...


I'm sure the police will have done so before before proceeding as they are.

You should be more concerned about how many Green MPs knew in advance of the vandalism spree from your idiots.

Roger said...

As I understand matters: Each of HoS and TV3 have a copy of the tape and a transcript. Publishing a conversation where there is no permission from either of the conversees is a criminal matter, UNLESS, there is public interest. Clearly neither TV3 or HoS are confident of meeting the public interest defence else they would have published (and given today's leaks it is easy to deduce their legal advisers easily argued the public interest test was not met). Garner, TV3 and HoS are on very dangerous ground now if it is found that they provided this material to Peters, having decided themselves there was no public interest defence to publish it. Interesting times.

Inventory2 said...

Quite so Adolf; Garteh Hughes seems to have gone to ground since Tuesday; the social media darling has vanished without a trace.

H Stewart said...

Winston just stuffed big time, the law issue is confused to say the least. My reading of the lawyers who blog ( Geddis Pundit ) is that it is very unlikely a conviction would be the result, that however is irrelevent at this stage.

This situation was not going to die out at this point because the police foolishly IMHO inflamed it today. Does anyone really believe that the media are restraining themselves from publishing due to legalities. Hell no they are not publishing because this is a stick that they can belt the PM with until he agrees to release the transcript which he can't because he took a " principled stand ".

Winston has lost the plot and handed Key an out by transmitting when he should have been recieving this was not going to die he should have waited until at least the weekend to stir it up a bit more.

Key needs to stop the glib " The police can investigate because National has reduced crime and they have more time " type lines to something that and I don't do one liners but " ..ask Winston....".

He needs to have friendly media ask him a policy question on what ever issue he has been addressing. That shuts it down and he can move on.

IV2 we have seen this issue from very different perspectives but the irony of Peters handing the PM a get out of if not gaol at least get out of a sticky situation is to funny to be true.

Maybe DPF who has been giving Goff very good unpaid for advice that Goff has been mostly following might want to turn his not not inconsiderable intellect and political skill to. Hell National might even pay him for it.

RightNow said...

"The cameraman at the centre of the tea tapes saga, Bradley Ambrose, has filed proceedings with the Auckland High Court in an attempt to clear his name."

Perhaps not passing the recording to the PoS in the first place would've been wise.

H Stewart said...

when is dark

Robert Winter said...

I can't help thinking that it is usually "Leaders" like Stalin and Bokassa and Assad who use the police and the power of the state to sort out political problems of their own making.

Inventory2 said...

Are you reduced to running that line Robert? I guess the ten-year low recorded by Labour in tonight's Colmar-Brunton calls for desperate measures.

Robert Winter said...

Hardly "reduced" - though I can see why the Right wishes to downplay what has now become post-farcical about the recording issue.

When a PM uses state power to stop access to information that most people now think is relevant to voter decison-making, how do you describe it? From any perspective, including Mr Hooten's, this is a political stuff-up of large proportions, and getting Mr Plod to rummage through RNZ and TVNZ etc won't help, and is not a good look in a democracy.

Inventory2 said...

Based on the two TV polls tonight Robert, it would seem that the "most people" you refer to are actually supporting Key's stand against the tabloid antics of the media, 3News in particular.

Moist von Lipwig said...

No Inv2
"most people"
Just don't care.