Another reason some have found the lack of a useful challenge upsetting. Unprincipled scumbags will do whatever you let them get away with the last time they tried.
Apart from Muldoon, there's an even more infamous example across the ditch: Sir Joh's Queensland. He ran the state for 19 years with something of an iron fist, and didn't hesitate to punch his opponents below the belt with it. Scrutiny was often greeted with "don't you worry about that!", if he didn't resort to media blackouts or libel threats.
It took the Fitzgerald Inquiry (with help from the ABC) and internal factionalism to bring him down where his ALP opponents couldn't.
Interesting development, but I really doubt a civil proceeding of this kind is the appropriate procedure
It's entirely appropriate. The very possibility of charges being brought hinges on whether or not the chat qualifies as a "private communication" under the Act. To seek a statutory declaration is to validate or otherwise the continued investigation.
A judge must rule on this question at some point, whether it's now or before a trial commences in the event that the investigation goes to completion and charges are laid. Getting a judge in now potentially saves everyone a whole lot of bother, or confirms that the Police will be able to bring a prosecution that won't get thrown out at the first hearing when a judge rules that, no, the conversation wasn't private and, thus, it was impossible for Ambrose to have broken the law.
It's a civil procedure, without cross examination, so I am not sure the judge would be comfortable ruling in a way that may usurp a criminal investigation. Also there is a recent Supreme Court authority that says it's not appropriate for cases where facts are disputed. Having said that, it's going to be heard, and the judge may take a different view.
Still, you’d think many of the facts were indisputable. Lots of footage to call on, and heaps of witnesses. It’s how to interpret those facts…
What’s mostly in dispute is the question of intention, isn’t it?
That’s the crux of the criminal case, but not what a judge would be ruling on here. (Since it turns mostly on what was inside someone’s head: as long as Ambrose hasn’t told various stories about it, it’s going to be very hard to prove the taping was intentional, I’d have thought. But if it’s ruled a conversation in such circumstances didn’t have a ‘reasonable expectation’ it couldn’t be/wasn’t being intercepted, his intention becomes irrelevant. Caveat: IANAL)
So I’d ignorantly opine it’s a legitimate move. Trouble is, any judgement will inevitably be seen as political- or at least having political weight, in the context of an election campaign. Something few judges would relish. Hence a high likelihood of punting for touch?
Rob you are absolutely correct about the evidence being plentiful it's just that in this process the evidence is only affidavit. I am not sure what the precise point the court is being asked to rule on is but if there is a conflict of evidence the kicking for touch would be almost automatic. Good legal team on it though, so if the judgment sought is on a point which is not connected with disputed facts there's a fighting chance. I gather they've got it before one of the cleverest judges too.
Just got back from Grey Lynn Park Festival where I talked to someone who knows a bit about the case. He indicated that Ambrose was* a John Key supporter, so it is unlikely that he intentional sought to record the conversation. This also implies that Ambrose was sufficiently exercised by the comments that he thought they were in the public interest to be published (alternatively, he could simply be a journalist first and JK support second). Also, I understand the lawyer who has taken on the case is confident of winning (fingers crossed, I really want the transcript to come out before the election).
* I think the past tense is appropriate, they way Key and Joyce have treated him is appalling.
Also there is a recent Supreme Court authority that says it’s not appropriate for cases where facts are disputed
Yes, that's true, but the facts of the case relate to Ambrose's intent. There's no dispute that Ambrose made a recording. The dispute is whether or not he intended to record the conversation.
The judge could have declined to hear the application on the grounds that it's a question of fact, not law, as to whether or not the circumstances of the conversation lend themselves to a reasonable belief that it was private under the law, but he hasn't. Which suggests that the court is open to being persuaded that it's a question of law, and if it's a question of law there's nothing inappropriate in the judge ruling on it before the investigation is completed. If he rules that it was a private conversation, that doesn't prejudice any factual questions about Ambrose's intent.
I am not sure what the precise point the court is being asked to rule on
S216A(1)(a) Crimes Act 1961 is the precise point. Namely, that a “private communication” cannot occur in circumstances in which any party ought reasonably to expect that the communication may be intercepted by some other person not having the express or implied consent of any party to do so.
If the judge rules that the circumstances could not give rise to a reasonable expectation that the conversation would not be overheard, the law cannot have been broken because a private communication could not take place.
ETA: IANAL, but my understanding is that this would fall into the realm of being a question of law rather than a question of fact.
I think the past tense is appropriate, they way Key and Joyce have treated him is appalling.
I'm still waiting for an interviewer to invite Joyce to repeat various of his comments.
..a `private communication'..in circumstances in which any party ought reasonably to expect that the communication may be intercepted by some other person..
Thanks for that, Matthew. When I go to a cafe or a restaurant I take extra care to ensure that, if I am discussing anything delicate, I do it very carefully. And if, in spite of this care, I get overheard I don't blame those who have heard what I have said: I blame myself for my carelessness. It has happened! A cafe or a restaurant is not a place where one can expect ones communications to be private.
Unless JK and JB had agreed with the owner of the cafe that they had that space entirely to themselves as a private space, I am afraid the only people they can blame for this is themselves (and maybe the DPS) for their carelessness.
Just realised I cited the section slightly incorrectly, it’s S216A(1), part (b) of the definition of “private communication”. But that’s only a minor mistake in this context.
ETA: “interception” is also pretty broad, being defined as: hear, listen to, record, monitor, acquire, or receive the communication. Which pretty much makes the case a slam dunk, given that the conversation could be monitored by any camera or person on the other side of the glass, or listened to by the staff and the other patrons.
Belatedly, on Hooton
I’m glad he’s being so honest,
“Honest” is not a word that I’d use in the same sentence as the name “Hooton”, ever. If he ever appears to honest, its because he’s found some raw material that he’s going to process, twist and transform and distract you from.
“Disingenuous”, however, is a word I would use. I’d add the adverb “slickly” as well, just to be sure.
that’s great in a political commentator, but I have to say that after watching 3 weeks of him talking about the Machiavellian tactics of the National party
Bit of a problem with “smart” too, I’m afraid. He has a certain low cunning, and a cynicism that basically empty people think of as a superior substitute for wisdom and definitely superior to morality, which they equate with naiveté.
His smugness when he thinks he’s right, and his adolescent petulance when challenged give away his emotional and intellectual limitations.
Hooton’s not genuinely smart, and he’s not honest. He’s paid to do a job and he’s happy to be seen by his masters to be doing it well for them. That’s where he finds his sole validation, whatever temporary feints he may make towards “objectivity”. Don’t mistake him for anything other than a spin doctor.
and repeatedly pointing out that he pretty much agrees with most of the policy of the Labour party, I can’t figure out why such an obviously smart
And that, I think, shows his utter moral and intellectual corruption. Loyalty to tribe and paymaster trumps any sense of what might be right or genuinely intelligent matters less that the cheapest form of loyalty and reward. The man's a worm.
Thought someone might have linked to this great analysis of Joyce's motives by Lew by now. Oh well, I will...
Speaking of criminal, I can't recall (your honour) which thread we were discussing it on, but Rudman has written more about Auckland's ANZ tower's creche being removed but not the 5 extra floors that it bought the original developers.
Auckland’s ANZ tower’s creche being removed
a stock market creche?
Nothing compared with the scale of sanctioned vandalism in Christchurch right now. Heritage property owners whining about the cost win against Historic Places Trust experts. Swift demolition. Exactly as Gerry promised.
Now will the other 99% of Cantabrians do anything meaningful about it at the polls, or just give this government a blank cheque for more of the same?
This could be moment to find the censored video of JK when the Guy tried to leap into the debating chamber. This was pulled from the Stuff news site before it gained legs and exposed the real John Key as a deluded, vindictive and mean spirited person. Where is this footage? JK's Minders have control of the mainstream media. This election coverage is heavily biased and who has the guts to call it. This is a failure of our Democracy and is of great concern.
Now will the other 99% of Cantabrians do anything meaningful about it at the polls,
Yes please. I was happy to see the march on telly tonight. I hope something shifts
My problem is , nobody wants to rock the boat for fear of hurting fragile feelings, then the whole South Island has endured lots of turmoil and how do you shake the people any more than already experienced.The sadest thing is only when, Nact fucks over the people, will there be a change. I ,having been born in Christchurch, think my family there are conservative. They think I am alternative. I live in peace and I know it’s because I don’t rely on this Government.
only when Nact fucks over the people will there be a change.
Yes, and the change is merely that those people will be fucked?
For any other result, Labour (and others) need to start making explicit lists of what they will reverse -- and then actually do exactly that as soon as they get the chance.
This could be moment to find the censored video of JK when the Guy tried to leap into the debating chamber. This was pulled from the Stuff news site before it gained legs and exposed the real John Key as a deluded, vindictive and mean spirited person. Where is this footage?
I actually watched that live at the time and it was total delayed confusion. Annette King was the only one expecting the guy to jump. The confusion seemed like a surreal situation in slow motion. The guy was destitute. Slightly deranged or not, I understood he was at his wits end. That doesn't really need to be used for advantage of anything. That was a deeply disturbing situation. John Key was not thinking of any thing other than his own selfish uninformed view that it is all about him, but the throat slit delivery to Labour was so abhorrent, the footage should not be delivered for anyones advantage. It was an attempt at suicide. It was Phil Goff who settled the House. It was a realisation that National never cares. It was really upsetting. It's not an advantage for any Party. It was deeply sad.