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Sneaky devices 3

By Steven | November 17, 2011

The cameraman in the middle of cuppagate, Bradley Ambrose, is reportedly seeking a court declaration that he committed no crime because the recorded conversation wasn’t private. (That is, that the conversation did not 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.)

Some of the arguments about whether this test is satisfied have been thrashed out in the posts and threads below. I think the balance of argument is that it can’t be a private conversation. (Even those, like me, who think it might be have to concede that eliminating this element beyond reasonable doubt is a tall order).

Still, I wonder whether a judge will want to grant a declaration about issues that are squarely in the middle of an ongoing police investigation.

Also interesting is Ambrose’s lawyer’s comment that Ambrose has yet to be contacted by the police. That means that police are apparently seeking search warrants against media organisations to obtain notes, out-takes, and other information about Ambrose’s conduct, before they’ve even interviewed him. Can it really be shown, as the Court of Appeal has required, that whatever evidence the media organisations are likely to hold “will have a direct and important place in the determination of the issues before the Court” when that evidence might be entirely unnecessary if Ambrose himself tells them what they need? (I’m not saying he will speak to the police, or if he does, that he’ll say much, but surely he needs to be asked before subjecting the media to a search warrant.)

A final point. As barrister Felix Geiringer has been saying for a while, even if it’s true that Ambrose committed an offence (and he thinks that’s highly doubtful, incidentally), it doesn’t follow that the media will also be committing an offence by publishing the tape or transcript right now. It would have to be shown that the media publishing the material know that it was illegally intercepted. Right now, at best the situation is unclear. If a media organisation published relying on a legal opinion that the tape did not seem to have been made illegally in breach of s 216B of the Crimes Act, then it would be hard to see how a prosecution could follow against that organisation.

Topics: Injunctions, Search warrants | 44 Comments »

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