MFAT leak report based on suspicion - lawyer

Paula Rebstock's report named the public servant who is accused of leaking a report into restructuring at MFAT - and who wants to remain anonymous. Photo / Ross Setford

A report on the leak of sensitive documents about restructuring at the Ministry of Foreign Affairs and Trade should be suppressed because its findings are based on suspicion rather than facts, the Court of Appeal has heard.

However the judges hearing the appeal have questioned the validity of that argument.

A Wellington public servant who has admitted photocopying Cabinet papers about the restructuring, took their bid to continue suppression of their name and parts of the report dealing with them to the Court of Appeal this morning.

The public servant's lawyer, Jason McHerron, told the court the case was about whether suspicions had a place in the report into the leak, completed last year by Paula Rebstock.

Ms Rebstock's report named the public servant as the person suspected of leaking the documents to the Labour Party early last year.

But Mr McHerron said suspicions didn't need to be fair, well founded or accurate.

Furthermore, the terms of reference for the investigation did not permit findings based on suspicion he argued.

Ms Rebstock was required to investigate and report on the relevant facts of the matter, "she was not required to report on her suspicions".

But Justice Rhys Harrison questioned whether there was anything wrong with Ms Rebstock setting out accepted facts and making a finding based on them.

Justice Mark O'Regan said the report contained "ample evidence to make the finding she made".

To say the facts set out in the report didn't support Ms Rebstock's suspicion was "clearly not true".

"She's found that there are facts that lead to a conclusion, that it's a matter of strong suspicion," Justice O'Regan said.

Former Foreign Affairs Minister Phil Goff caused great embarrassment to the Government when he revealed aspects of the controversial restructuring plans contained in the Cabinet papers in Parliament last year.

Lawyers for the Crown will give their submissions this afternoon.