On the last working day before Christmas the Crown Law Office filed a claim with the High Court for nearly $14,000 in legal costs from the freelance journalist who challenged the privacy of Prime Minister John Key's cup of tea with Act's John Banks. The Government's vindictiveness in this matter beggars belief.

Whatever view may be taken of the actions of anyone involved, there can be no dispute that the incident raises important questions of public interest that remain unresolved. Can a conversation in the course of a political "photo-opportunity" be a private communication protected by the Crimes Act 1961? If so, is it an offence for anyone to overhear it and repeat what is heard? Or only if it has been taped?

Photographer Bradley Ambrose, who swears he accidentally left a tape recorder running on the table where Mr Key and Mr Banks were sitting, went to the court for a ruling on the first question before the election.

At the hearing, counsel for the Attorney-General chose not to address that issue, arguing instead that Mr Ambrose's request for a declaratory judgment should be refused on procedural grounds. Since police were investigating a complaint from Mr Key, the Crown suggested a court ruling at that stage would interfere with the process of criminal justice.


Judge Helen Winkelmann agreed, deciding it would not be appropriate to conduct "a mini-trial as to whether certain conduct constituted a criminal offence ... in advance of a police investigation or trial".

The hearing was held, and judgment issued, just four days before the election. Had the decision gone the other way the conversation that Mr Key was trying so strenuously to keep private could have been published before polling day.

These questions are not best considered in the heat of an election campaign when most people's view of the issue and whether it was important seemed to depend on whether or not they were intending to vote for Mr Key.

But when the last Herald-DigiPoll survey of the campaign asked people if they thought Mr Key should have involved the police in the incident, just over half said no.

This is an important question and it ought to be considered by the courts again, this time away from the pressure of an election campaign. Unfortunately, the only way it might now be resolved is if police decide to bring a criminal prosecution, which would be grossly heavy-handed in the circumstances, and seems unlikely for evidential reasons.

The police would have to prove the conversation had been intentionally taped and that anybody who disclosed what was said on the tape knew it had been illegally recorded.

But even if those requirements of the Crimes Act could be satisfied, the first question would remain, should a conversation in those circumstances enjoy privacy protection?

Mr Key and Mr Banks wanted their meeting to be well publicised for their own purposes. They invited a phalanx of news cameras and expected to be seen but not heard. It was extraordinarily careless of them to discuss anything they wanted to keep secret and extraordinarily unwise, when they realised they had been taped, to invoke the police and thereby prolong their agony.


Mr Ambrose deserves credit for trying to test the central issue in court. He does not deserve to be hit with a bill for $13,669.45 simply because the Crown Law Office considered his application for a declaratory judgment "misconceived".

Crown Law chose to meet it with a team of lawyers led by the Solicitor-General, David Collins QC, but chose not to grapple with the substance of the subject. The least it can do now is pay its own bill and put it down to the public interest.