Brian Rudman: Tea tape saga a waste of police time

John Banks and John Key. Photo / Mark Mitchell

It's little wonder that Prime Minister John Key arranged to be half a world away playing the international statesman, when the carefully choreographed final act of the teapot tape farce was finally staged.

If anyone stooped to the practices of the News of the World in this affair, it was the Prime Minister, not the Herald on Sunday or cameraman Bradley Ambrose. It was he who charged around making all sorts of wild accusations against the media. Accusations that after nearly four months of investigation, the police have been unable to substantiate.

By absenting himself from the country, he has left it to the police to clean up his political mess as best they can. They would have been smartest to have kept their announcement of defeat, short and sweet, said Mr Ambrose had no case to answer, and left it at that. But instead, Assistant Commissioner Malcolm Burgess tried to suggest some sort of victory, by announcing that Mr Ambrose's actions had been "illegal," the taping had "most likely" been on purpose and at least "reckless," but there was not sufficient public interest in the matter to go to court. However, he warned media that further occurrences were likely to be prosecuted.

To add to the confusion, Mr Key, in a press statement from Seoul, drags the police into politics by saying the Crown prosecutors had phoned him the week before to say there was a prima facie case against Ambrose but that he, the Prime Minister, had told them he "wanted to make it go away".

The solution, it appears, was a backroom deal between lawyers for both sides, plus the police, which included a letter of regret from Mr Ambrose, which doesn't admit to deliberately taping anything. He just repeats what he's been saying from day one, that his remote microphone was left on the cafe table in error.

As a working journalist, what worries me, is the vagueness of Commissioner Burgess' ominous threat to prosecute if it happens again. He said the investigation sent a message that "the recording and distribution of conversations that are considered private is likely to lead to prosecution in the future". The question is, considered private by whom? Does he mean, if the Prime Minister growls again.

The offence to which he is referring under the Crimes Act states "every one is liable to imprisonment for the term not exceeding two years who intentionally intercepts any private communication by means of an interception device".

As Otago law professor Andrew Geddis points out, the vital word is "intentionally".

He says "it isn't really enough that someone was reckless about intercepting a private conversation ... you need to show they deliberately set out to do so."

Yet the furthest the commissioner went at his press conference was that it was only "most likely" that the taping had been on purpose. The other key word, of course, is "private," and the only people that seem to believe the stage-managed press circus that was Mr Key and Epsom Act candidate John Banks' pre-election tea party was private, are the participants and the police.

The meeting took place in a popular public tea shop. From the television footage, tables are close together and many were occupied by bemused members of the public. In fact, one journalist stayed in the shop at a table unnoticed after the rest of the media scrum was herded out following the "photo op" stage of proceedings. The rest were crowded outside, some at an open door, with cameras rolling and clacking, powerful microphones endeavouring to pick up what they could.

It reminds me of the lawyer - or real estate agent - I was never sure which, who used to sit at the front of my morning bus, barking instructions to her PA from her cellphone. Snippets of private deals used to spray around the bus. I always sat there hoping to catch something of interest, but never did.

Are bystanders supposed to insert earplugs to avoid hearing such "private" conversations. Surely there's an onus on someone who wants to have a private conversation to chose a suitably private venue.

In the case of the Epsom tea party, the whole purpose of the stunt was to show the voters of New Zealand, with the essential assistance of Mr Ambrose and the 20 to 30 other hacks who were lured to attend, that Mr Key's National Party was calling upon its faithful in Epsom, to support the Act candidate, Mr Banks.

It was very public theatre - mime indeed, because Mr Key couldn't actually stand up and tell the party faithful to rat on National's candidate in so many words. But after weeks of public courting via the media, everyone knew that the "cup of tea" meeting was the signal for Epsom Nats to hold their noses and vote John Banks.

It's hard to believe any judge or jury in the land would have considered beyond reasonable doubt that this widely advertised public play acting, suddenly became private, just because My Key lost control of events.

If ever there was a case of wasting police time, this was it.