Thursday 17 November: police threaten search warrant over teapot tapes

by Toby Manhire / 17 November, 2011
Polls show National holding healthy lead, Winston Peters "reveals contents" of teapot tapes.

On Checkpoint it's Winston Peters' revelations about the contents of the teapot tapes that leads, followed by the search warrants likely to be served against four media organisations. Third is the National health policy.

Both One News and 3 News lead with their polls (see 6.30pm).

Next on 3 News is Winston Peters doing his thing on what he's calling "cuppagate", in a story that also includes reference to the search warrants. has a transcript of Winston Peters's declamatory speech here.

Third is a short, breaking item about cameraman Bradley Ambrose, who is seeking a declaratory judgement at the Auckland high court on whether or not the Newmarket cafe conversation - which he says he accidentally recorded - was private. Were the court to find in his favour, that would stymie the police investigation. (More here.)

One News, too, combines Winston and the police inquiry into its second story, before heading off to the big drug syndicate prosecution.

Close Up has a story about the successful elimation of youth unemployment in Ototorahanga, which is tangentially election-related.

On Campbell Live, meanwhile, it's wall to wall election coverage. First, silver-haired people in Auckland's sunny Point Chevalier are asked about suggestions John Key referred to Winston Peters' constituents as "dying off". Most aren't well pleased.

Next Campbell has Winston Peters live from the deep south. The NZ First leader confirms the things he's sure as sure can be are on those tapes: Key says National could govern alone; he says ACT need a new leader; he says Brash is a strange fellow; and he says Winnie-supporters are "dying off". ACT is doomed, Peters reckons - and "this is the Kardashians, for goodness sakes, that's going on in front of our face."

John Campbell is on the road in the next piece - and it's a terrific piece, too, a sort of anatomy of the campaign trail, in all its "banal and brutal" haste. Seek it out and watch it online. The half-hour winds up with more manufactured enthusiasm about the worm they're using for next week's debate. No need to seek that out.

We'll have the Herald/Digipoll details up here bright and early. Or early, anyway. Good night.

6.30pm: POLLS

Two polls to report: one from One News/Colmar Brunton, the other from 3 News/Reid Research. Both appear to confirm that the news that has dominated the week has barely damaged National - they drop an average of 2% across the polls (leaving them able to govern alone), Labour drop slightly more, however.

In both polls the Greens profit, going up to 13% - despite the billboard stuff. Key holds his lead commandingly in the preferred PM stakes, too. The polls have been conducted over a number of days, so the possibility remains that any impact could take a while to sink in - and the search warrants may exacerbate concerns - but the National party will feel relief, perhaps even vindication, at the sight of these numbers.

And the numbers are:

One News/Colmar Brunton

National 53% (down 1)

Labour 26% (down 2)

Greens 13% (up 4)

NZ First 2.2% (down 0.7)

Maori 1.6% (down 0.5)

Act 1.6% (up 0.1)

Conservative 1.4% (up 0.9)

Mana 1.3% (up 1.1)

United 0.8% (up 0.5)

Preferred PM: Key 53, Goff 13

3 News/Reid Research

National 50.2% (down 3.1)

Labour 27.4% (down 2.5)

Greens 13% (up 2.8)

NZ First 3.5% (up 1.1)

Act 1.8% (up 1.1)

Maori 1.3% (down 0.1)

Conservative 1.1% (no change)

Mana 1.0% (nc)

United -

Preferred PM: Key 49, Goff 10

What does it all mean? It shows that the teapot-tape saga "has not hurt National" (Guyon Espiner). It also "shows that the teapot saga has hurt National" (Duncan Garner). Clear enough?

A quick roundup of the headlines in the evening bulletins and the 7pm shows about 7.30pm, all going well.

5.30pm: I'd assumed that the fourth media organisation police say they're seeking material from (see 1.05pm) was the Herald on Sunday (or APN - the group which also owns the Listener). According to Checkpoint, however, the HoS editor still says he's heard nothing from the constabulary.

Still on Checkpoint, here's what political reporter Jane Patterson, who is with the press pack following Key on the campaign trail, said

He's certainly determined to come out and answer questions ... But he continued to repeat that he didn't think that the public wanted to hear about this; they wanted to hear about the "real issues".

Asked if he'd apologise to families of suicide victims (see 8.40am), she says, he refused to comment.

He's banking on the fact that the public are on his side, and not the media's, on this one ... I think he's painted himself into a corner with these strong delcarations of principle and ethics ... I can't see him backing down.

A roundup of the headlines in the evening news bulletins later - before then, the One News / Colmar Brunton poll details, which I'll tap out as soon as they appear on the screen, just after six.

5.00pm: Just hours after Winston Peters told the media that John Key had said, in the infamous teapot tapes, that New Zealand First's support was "dying off", National has released its senior citizens policy, pledging its commitment to the "security, wellbeing of older NZers".

4.40pm: The editor of the New Zealand Herald tweets, apparently significantly, certainly teasingly:

4.35pm: Unusually, the Panel feature on National Radio's Jim Mora show is a bevy of lefties. Or two of them, anyway: Chris Trotter and Scott Yorke. Trotter has just delivered an impassioned attack on John Key's complaint to the police, which has led to the "outlandish consequence" of likely search warrants being issued to large media organisations. The only defensible course of action now, says Trotter, is for Key to withdraw the complaint.

The Herald's John Armstrong subsequently comes on the line, to say: "I one hundred per cent endorse what Chris Trotter has said." Key, says Armstrong - whom many have accused of being too generous to National over the years - has made a "monumental blunder".

Yorke makes another observation: the Police appear to have acted very swiftly, given that the question of criminality "seems murky". (My guess, for what it's worth, is the reason they were after the RNZ material is because they're trying to establish whether Ambrose's claim that the recording was accidental is credible.)

4.15pm: The teapot tapes and all that has been getting a good whack of coverage overseas.

A new Bloomberg piece is headlined NZ Police to Search Media Companies After Key Tape Complaint.

Associated Press reports the development here.

(Update: A reader helpfully directs me to the headline the Australian uses for the AP report: John Key tape 'could change votes'.)

An earlier, longer AP report on the controversy, by the agency’s excellent Wellington correspondent Nick Perry, has been picked up far and wide, including at the Washington Post, a place that knows a thing or two about intercepted recordings and political scandals.

Another place it appeared was Taiwan News, though it possibly didn’t read the story carefully enough, giving it the headline: “New Zealand leader John Key wiretapped in privacy phone call”.

4.05pm: One new detail from the 4pm bulletin on RNZ National: a confirmation that "Radio New Zealand will take legal action to prevent the release of the material to police". Oh, and they report that, according to Peters, Key said in the recording that Catherine Isaac, currently second on the ACT list, should replace Don Brash as ACT leader.

3.10pm: Has Winston Peters risked prosecution by explicitly stating what is contained in the teapot tapes (see 2.15pm)? Where a private communication is illegally intercepted (which remains moot), The Crimes Act 1961 says anyone commits an offences who "discloses the private communication, or the substance, meaning, or purport of the communication, or any part of it; or ... discloses the existence of the private communication ... if he knows that it has come to his knowledge as a direct or indirect result of a contravention of section 216B".

"Discloses the existence of"? Taken to the letter, and with all the above caveats, you could argue that incriminates a host of people, not just Winston. But I'm not a lawyer. I did first year law, but it didn't work out

3.00pm: On RadioLive, National-friendly pundit Matthew Hooten has been arguing that the teapot tape affair is worse for Labour. He says that National's private polling put National on 53% on Tuesday evening, and up a point to 54% on Wednesday, following his walkout on the media, reflecting, says Hooten, the wisdom of the change in strategic tack.

2.45pm: Philip points us in the direction of a post from 2009 by Steven Price about police search warrants and the media. Price notes the Court of Appeal’s guidelines for the issue of search warrants from 1995.

2.20pm: David Farrar tweets:

Yawn Winston has played the media for fools. Not one single direct quote. Just his interpretation. #teapottapes #votenz

Hayden East adds:

That was like a stripper only taking off their jacket. #teapottapes

2.15pm: What did Winston say? Rather than releasing a transcript, he appears to have summarised and read a few passages that he says were spoken. According to, which is first out of the blocks here, he said:

The conversation covers what Banks thinks of Brash and how Key confirms that view.

The conversation also covered restructuring and rebuilding of the Act Party and John Key telling Banks who the new Act Leader should be and, Winston Peter’s ‘constituents are dying’ is a description Key uses of hundreds of thousands of New Zealanders who happen to be older.

And equally alarming is his belief the percentage of the vote that National will get on Election Day will enable him to govern alone.

John Key has been found wanting

And the New Zealand electorate has been warned in time to take the action at the ballot box.

2.05pm: Phil Goff has been appearing on the Jackson/Tamihere show on RadioLive. On the tape controversy, the Labour leader said: "We expect the prime minister to be able to deal with probelms far bigger than this one." He has faced questions from the hosts and listeners over asset sales and the proposed removal of GST from fresh fruit and vegetables.


Winston Peters has said he will reveal the contents of the teapot tapes at a meeting in Invercargill at 2.00pm. That's in five minutes.

1.45pm: BLOGGERS

The place to start on the search warrant threat against RNZ in the teapot tape saga is Russell Brown at Public Address.

RNZ should, of course, on no account, surrender any such material. To do so would be to compromise its ability to conduct sensitive interviews in future. Even if there is nothing of note in any material it holds – and, frankly, it’s not clear it even holds anything it hasn’t broadcast – to willingly hand it over is tantamount to giving up a source. That it has even been subject to such a request is extremely troubling.

What the police are doing here is criminalising journalism.

Zetetic at the Standard goes further: "The Police are injecting themselves into a major political issue days from an election with a clear political bias. It is a fundamental breach of our constitution."

Writing before the story escalated yet again (see 11am) Cameron Slater poured scorn on the coverage of the teapot tapes at Whaleoil.

Isn’t it interesting that the media are more interested in an 8 minute conversation in a cafe than in a two month long orchestrated campaign of vandalism, illegal promotor statements and coordination within a major political party.

At Kiwiblog, David Farrar judges that Hone Harawira performed best in the debate last night.

And Denis Welch has an exclusive at Opposable Thumb: The Arab League are calling for the teapot tapes to be released.

1.15pm: Golly. From RNZ's updated story on the search warrant threat:

National Party leader John Key, who was in Whangarei on Thursday, said any police action following the complaint he laid was out of his hands, as the police act independently.

When asked whether his complaint was a good use of police time, Mr Key said National had lowered the crime rate across the country and police had a little bit of spare time.

1.05pm: According to the 1pm bulletin on RNZ, the Police have sought unpublished material from RNZ, TVNZ, TV3 and one other media organisation. I have a hunch.

1.00pm: A tweet:

12.30pm: POLICY

Timing is not everything, but it is a lot. Still, we will not amid the media maelstrom overlook National's release of the second part of its health policy. It centres on a new target for immunisation. In the words of Tony Ryall: "A re-elected National government will introduce a new immunisation target: that by the end of 2014, 95% of all eight-month-old children are fully immunised with three scheduled vaccinations. The rate is currently around 70%."

Other pledges include a comprehensive after-hours telephone advice service with access to nurses, GPs and pharmacists; free after-hours GP visits for under six year olds; the roll-out of a $12 million nation-wide rheumatic fever programme; expanded nutrition education through maternal and ante-natal support services; improvement of prostate health services; introduction of a single central electronic health record for every person by 2014; and increasing the number of people with disabilities who choose how they spend their support funding.

That's all taken, just about verbatim, from the National release here, which also includes direct links to the policy documents.

12.15pm: TVNZ have been told they can expect a search warrant, too.

12.10pm: A couple of extra details from RNZ's Midday Report. They report that "police are investigating four media organisations", and that Bryce Johns, editor of the Herald on Sunday, "has not yet been approached by police.

Phil Goff comments: "It looks to me like an effort by John Key to gag the media." It isn't clear to me whether this is specific to the RNZ search warrant development or more generally to Key's complaint to police. If the former, that's a stretch, I'd say.

And chief parliamentary reporter Jane Patterson calls in from Whangerei where she has been following John Key. He "refused to comment on the questions I put to him about Radio New Zealand", insisting that it had nothing to do with him.

11.50am: What to make of this latest, remarkable development (see 11.05am) in an already remarkable story?

The first thing to say is that it's unlikely John Key would be watching it with any relish. But he made the complaint with the police and the police would presumably say - we await an official statement - that they are going about their investigation.

What recording are they after? Presumably the one that was broadcast on Checkpoint on Monday (see here at 5.15pm for summary and audio). I'm not aware of other interviews, but I may be wrong - the RNZ release refers to "unpublished material relating to interviews it conducted with the cameraman"  - that's interviews plural. In that interview, Mary Wilson pressed Bradley Ambrose in her usual precise style on how the recording was made and how it made its way to the Herald on Sunday.

Does it go to the question of Ambrose's "inadvertent" claim, and whether it was recorded deliberately or not? As Steven Price said in his excellent blogpost on the legality of the matter four days ago, intention is crucial in this matter.

Other questions. Did Bradley Ambrose also give an interview to TVNZ (I think he did but I'm not certain about that, and a quick search doesn't reveal it), and if so have they been asked for their material - and if they have, did they provide it? Are the police looking for inconsistencies in Ambrose's accounts? The other question is this: how come the police haven't issued a search warrant to get the recording itself from the Herald on Sunday and TV3.

11.10am: Quite why Nine to Noon hasn't bumped its usual stuff back by five minutes to interview head of news Don Rood, I don't know. Load of people will presumably be tuning in having heard this remarkable news, only to hear Kathryn Ryan pretending to be interested in the latest news about the iPhone.

11.05am: More on that breaking news - RNZ posts the following on its website:

Officers working on the case have contacted Radio New Zealand wanting unpublished material relating to interviews it conducted with the cameraman who made the recording which he gave to a Sunday newspaper.

Radio New Zealand's head of news, Don Rood, has refused to hand over any material gathered by news staff and says the news organisation will always protect its sources.

Mr Rood says police have told him that they will get a search warrant and execute it on Thursday or Friday.

Radio New Zealand says it does not have the original tape at the centre of the complaint.


Police are demanding that Radio New Zealand hand over unpublished material related to the teapot tapes controversy. According to RNZ, they have been told a search warrant is likely to be executed today or tomorrow. The material is believed to relate to an interview conducted with the cameraman who recorded the conversation, Bradley Ambrose.

10.40am: Just catching up with Winston Peters' chat with Marcus Lush on RadioLive from earlier this morning (online here). Peters says the police warning not to print is "specious", and that the media should go ahead and release the teapot tapes. Lush raises the interesting new line put by Peters in last night's debate, hinting that Key and Banks had discussed a post-parliament role for Brash (see 8.05pm yesterday). "What I know is what I am saying, says Peter, refusing to go further. "You should lean on your own profession."

Peters gets cross when pushed by Lush on whether NZ First would prop up a Labour government. Read my speech, he says. Can't you just say, pleads Lush. Ive told you, says Peters: "N-O spells No!"

10.15am: Here's the statement from the Media Freedom Committee (see 9.50am), "Wrong to link 'teapot tape' to UK wire tapping".

10.00am: John Key and John Banks are now the subject of more than a dozen online efforts to imagine what they said to each other in the Urban Cafe on Friday. A couple of new YouTube clips launched last night take a fresh slice of mickey. There's Leave John Key Alone (warning, some sweariness) and a dubstep John Banks Doesn't Like Losing.

9.50am: There has been a testy exchange on Newstalk ZB Wellington between Sean Plunket and Tim Pankhurst, former Dominion Post editor and now secretary of the Media Freedom Committee, which discussed the teapot saga at their AGM yesterday. Plunket, who has been for much of the hour been castigating the Herald on Sunday and 3 News for their "lack of intestinal fortitude" in releasing the teapot tapes, challenges Pankhurst to provide him with transcripts of all the conversations he's had with editors on the matter - and while he's at it he'd like details of all the conversations between the media organisations and their lawyers.

"Context is important," objects Pankhurst, saying that the teapot tapes were captured during a "media stunt". Plunket is fired up, though. These media outfits "want to get all outraged about certain parts of this situation, but not look at the specific ethics of how this recording came about".

Can't wait to see how Plunket and his co-host on The Nation, Duncan "prober" Garner, get on on Saturday. Bring it.

9.30am: Here is the morning paper review.

8.55am: Amid questions about the strategic nous of the National handling of the teapot tapes scandal, their campaign manager Steven Joyce has attempted to regain some momentum, coming out swinging in a press release attacking Labour claims on the economy. "The only things that Labour is racking up faster than debt are smears and untruths," says National's minister of everything. "Labour is panicked and attempting to pull the wool over the eyes of the New Zealand public. Under Labour, New Zealand would owe our future."

8.50am: All this focus on Morning Report, I can hear you thinking: as if that is going to make the slightest bit of difference - its listeners made their minds up long ago. Ever alert to your thoughts, I've been listening to Newstalk ZB a bit this morning. Mike Hosking is not very impressed with the ongoing fixation on the teapot tapes (see yesterday, 11.40am), but judging by the emails and texts he's reading, his listeners are split down the middle. (One listener is convinced that John Key is behind the whole thing, and knew all along that he was being recorded.)

On the 8.30am news on Newstalk ZB, leading is Peter Dunne saying "too much is being read into so-called political deals" in seats such as his. Second is the Occupy movement. Third is a report from Business NZ "into the time New Zealand businesses take to pay their bills". On ZB, at least, they seem to be moving on from the tea stuff.

8.40am: Raymond Miller of Auckland University has been on Morning Report saying that John Key, as a former currency trader, will have weighed up the risks and benefits of going to the police over the teapot tapes, and then made his decision. One of the risks of staying schtum on the subject, however, is that other items fill the void. RNZ's Morning Report has reminded us at least four times of the "no-show from the National party president" (see 7.35am).

And next on Morning Report is news that "family members who have been affected by suicide" are "outraged" by John Key's "flippant and casual" invocation of parents talking about a suicidal child on Tuesday afternoon (see here at 5.45pm for the full comments) Maria Bradshaw, mother of a suicide victim, is on the show. She says: "This is a difficult time of year for us with Christmas coming", and it is no time for suicide being used "for manoeuvring around a tight political corner". Ouch.

"We have asked John Key to review the literature and data and conduct an independent review into suicide", but he has done nothing, and now used it "for his own personal political advantage". And: "Journalism does not cause suicide, current government policy does."

7.55am: Who is that on the Breakfast sofa? I'll just cut and paste from below. The man who never says no, Don Brash. And of course he faces another volley of questions that repeat the moot that Banks and Key want him out. Brash can probably excpect a call from the Key campaign team this morning. "Don: oxygen, starve, issues that matter."

To be fair, Corin Dann gives Brash a broader range of questions on Breakfast - he even gets a chance to (briefly) describe ACT's education policy. And he must realise he's in the last-chance saloon: a poll for Fairfax this morning, based on 200 Epsom voters, puts the National candidate Paul Goldsmith on 45.5%, with John Banks on 29.1%. More from the papers in the Philip Pinner Paper Review™ soon.

7.40am: TV3's political editor, Duncan Garner, has been on Firstline describing how the prime minister he knew has changed. It's like I don't even know him any more, he almost says. Will they air the tapes? "Where we stand is this: we are reviewing our decisions daily. We understand the law, and this stage we have decided not to run the tapes. But of course there's today and tomrorow and Saturday and Sunday, so we will just see. I mean the level of public interest has really become quite immense ... There are some legitimate questions here ... Yes, John Key is trying to create a wedge between the public and the media, so people don't like the media, but I think there's enough public interest in these tapes now to come out."

And on Banks? "I believe John Banks is now misleading the New Zealand public."

7.35am: The 7am news on TV3's Firstline kicks off with the minor party leaders' debate - specifically, their "failing to show any sympathy" for the prime minister over the teapot tapes. Next is yesterday's big drug bust. Third is the state of the Occupy protest movement in NZ, the US and Australia.

On Breakfast, the 7am bulletin begins with Obama in Australia, and the agreement that a couple of hundred US soliders will be based in the country from next year. Then the drug bust. And then the minor leaders' debate, again with a focus on the call for the teapot tapes to be released.

Shortly after 7am, RNZ's Morning Report says the National party president, who was booked to appear on the programme, has cancelled at the last minute. Who will appear? The man who never says no, Don Brash. And of course he faces another volley of questions that repeat the moot that Banks and Key want him out.

And it's on Brash's insistence the tape shouldn't be released that Morning Report leads its 7.30am bulletin (I missed the 7am). That's followed by Peter Dunne calling for an independent panel to do pre-election fiscal costings (an idea that Gordon Harcourt and Rod Oram deserve the credit for). Then the Pike River memorial, with organisers hoping it does not become politicised.

7.00am: "The thing I know that matters to New Zealanders is the issues that really matter." That was John Key yesterday, doing his best to change the subject from the teapot tapes, the details of which continued to dominate yesterday on the campaign trail.

Just as well for him the spotlight shifted in the early evening to the half-dozen leaders of the smaller parties. If you missed any of that - or any of the day - relive it all in its livebloggedness here, together with last night's verdicts on the debate from the Listener's Jane Clifton, Diana Wichtel and Fiona Rae.

A roundup of the morning bulletins soon, then the papers, and on we go. Expect Key's camp to continue striving to starve the secret recording story of oxygen today. The day's most important moment could be just after 6pm, when One News gives us the results of its latest Colmar Brunton poll.

One guideline, in a case where there is no suggestion that the media organisation has committed any offence and it has done no more than record events which may include the commission of offences by others, is that the intrusive procedure of a search warrant should not be used for trivial or truly minor cases. [The Court felt that protesters overcoming naval personnel to replace the flag at Waitangi treaty grounds was sufficiently serious, particularly as they were “calculated insults to the constitution of New Zealand”].

A second guideline is that, as far as practicable, a warrant should not be granted or executed so as to impair the public dissemination of news… in the present case the company appears to have already broadcast what it wanted from the tapes in its news programmes.

A third guideline is that only in exceptional circumstances where it is truly essential in the interests of justice should a warrant be granted or executed if there is a substantial risk that it will result in the “drying-up” of confidential sources of information for the media. In this case again there appears to be no risk of that kind. The tapes simply recorded public events.

A fourth guideline is that a warrant should be executed considerately and so as to cause the least practicable disruption to the business of the media organisation. In this instance, had the appellant so wished it might have been possible for the police to view the tapes at the studio and to take away only those found to be of significant evidential value…

A fifth guideline for the grant of a warrant relates to the relative importance of the tapes for the purposes of a prosecution. [A warrant may be issued] ”when it is likely that the film will have a direct and important place in the determination of the issues before the Court.” It must be remembered that the evidential value of tapes may because of their accuracy exceed that of accounts by eye witnesses. In a confused situation involving the actions of many members of a crowd the …  recording may be fairer to all concerned than eyewitness evidence. While the availability of other evidence is a factor for consideration, the superior reliability of a film will often outweigh it.


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