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.
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.