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Dean reads the tea leaves

By Steven | November 18, 2011

Dean Knight has posted on cuppagate. He’s particularly interested in the declaration application. He explains the hurdles faced by the applicant (judicial reluctance to grant declarations when issues are still in dispute and where criminal proceedings can sort things out), and says he thinks the judge should grant one anyway (to protect the integrity of the election).

By the by, he also thinks the parties to the conversation couldn’t reasonably expect not to be overheard.

Topics: Journalism and criminal law | 10 Comments »

10 Responses to “Dean reads the tea leaves”

  1. Glassboy Says:
    November 18th, 2011 at 10:33 am

    Even if the court makes a declaration it is going to do nothing to the self-righteous tissy that the various media outlets have worked themselves into. If anything it will extend it.

  2. Steven Says:
    November 18th, 2011 at 10:55 am

    Maybe. But it will mean that they can publish the tapes/transcript, which ought to take a lot of the air out of the story.

  3. Glassboy Says:
    November 18th, 2011 at 12:08 pm

    It will mean that the media can get themselves out of the Chinese finger trap they have got themselves into but meanwhile they have handed National a week of being seen to try and talk about the “real issues” but not having to actually provide any content.

    Meanwhile the only thing we have managed to hear from Goff are comments about smuggling ACT into Parliament, which a) demonstrates a lack of understanding of democracy, and b) is just insulting to the voters.

    And in the end I think Stephen Frank’s comment this morning on National Radio is right – the public are ready for some frank comments from politicians. Publishing a transcript of Key saying what everyone else thinks anyway is going to further make the media look like prima donnas.

  4. FelixGeiringer Says:
    November 18th, 2011 at 5:18 pm

    Try as I might, I cannot seem to comment on Dean’s page.

    My first comment is this:
    This declaratory judgment application would be significantly strengthened if a media organisation joins as a party.

    First, Dean’s freedom of expression argument would be of more direct interest to a party before the Court. Ron Mansfield is saying that his client does not care about politics.

    Secondly, the camera man is asking for a declaration about an act already committed. The Court may wish to leave that to be decided by the normal criminal process if and when it needs to be. Whereas, a media organisation would be asking for a declaration about the legality of a future action. There is a strong history of declarations being granted for that purpose and it accords with the rule of law principle that a person is entitled to know whether or not an action is lawful before they do it.

  5. Andrew Geddis Says:
    November 18th, 2011 at 6:04 pm

    “Try as I might, I cannot seem to comment on Dean’s page.”

    Well, Dean is a very discerning individual, with very high standards … so maybe you need to up your game?

    (I say this as someone who’s had the same problem. So now I ignore everything he says, on the basis that I don’t want to be part of a club that doesn’t want me to be a part of it. Or something.)

  6. deanknight Says:
    November 18th, 2011 at 9:38 pm

    Felix: Agreed. Much stronger case if the media tag in.

    Andrew and Felix: Hmm. I shall investigate. It is an outrageous breach of your expressive rights… If it’s any consolation (and it’s prob not), I had sone difficulties myself posting the piece itself… on fickle wifi in some dodgy Parisian sidewalk cafe.

  7. Steve Parkes Says:
    November 19th, 2011 at 7:38 pm

    “[The media] have handed National a week of being seen to try and talk about the “real issues” but not having to actually provide any content.”

    Well, yes, but it was a rather see-through tactic.

    “Meanwhile the only thing we have managed to hear from Goff are comments about smuggling ACT into Parliament, which a) demonstrates a lack of understanding of democracy, and b) is just insulting to the voters.”

    ‘Smuggling’ is a good characterisation, actually. It’s an unsatisfactory aspect of the current MMP system being exploited here. Not that I blame NACT for trying to work it to their advantage, but I don’t fault their opponents for criticising them either.

    “Publishing a transcript of Key saying what everyone else thinks anyway is going to further make the media look like prima donnas.”

    I doubt that will be the focus of attention if the court rues the meeting was not private. If that happens, Key and especially Steven Joyce’s aggressive approach over this issue will look rather foolish. Will some in the media be a bit smug about it? Probably, and understandably so.

  8. Steve Parkes Says:
    November 19th, 2011 at 8:46 pm

    *rules

  9. FelixGeiringer Says:
    November 22nd, 2011 at 2:04 pm

    Were I in Winkelman J’s shoes, based on the evidence as I have seen it reported, I think I would not be inclined grant this declaration. It would not be appropriate to do so given that the question is partly one of fact and falls to be decided in other proceedings, possibly based on different evidence. However, I would nevertheless observe that on the evidence before the Court today Key and Bank’s conversation does not appear to be a private communication under s 216A of the Crime Act.

    The Police would therefore be free to pursue their investigation. However, if they have decided to do so it is hoped that they are doing to based on some evidence of which the Court today was unaware.

    Nor would the Court be injuncting anyone from making any criticisms of Mr Ambrose. However, any such persons will be aware of the danger that in doing so they may be defaming Mr Ambrose making themselves liable for damages for such defamation.

    Nor has the Court had presented to it today any evidence the knowledge of which would prevent the media publishing the contents of that conversation. However, in making that observation the Court is not precluding the possibility that were a media organisation aware of some other facts that had not been presented to the Court it is possible that those facts may amount to the requisite knowledge under s 216C of a breach of s 216B and publication by that media organisation would therefore be an offence.

  10. Justin Says:
    November 23rd, 2011 at 2:56 pm

    Looks like Winkelman J agreed with you Felix. Too much risk of influencing a Police investigation and too many disputed facts.

    Actually I think the point made at [50] in the judgement the NBR posted is interesting. Seems there is at least an argument that Ambrose may have known there was to be a private talk after the photo op which would point to intent.

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