The legality of its creation affects not only any liability – criminal and civil – he may face, but also further dissemination of the tapes and transcript. The stakes have been raised by the Police issuing search warrants for four media outlets, after initially issuing a strong warning about illegal publishing of the conversation.
We are currently in a strange twilight zone where there is lots of chatter about the recording, but still the recording and transcript have not yet been published. Some media have justified their restraint in terms of ethics – but no doubt legality also features heavily.
The question of legality of the taping has been thrashed already – both by those knowing something about law and others. The key criminal offence centres on s 216A of the Crimes Act. Legality or criminality turns on turns on:
(a) whether the taping was intentional; and
(b) whether the "should reasonably expect eavesdroppers" exception in the definition of private communication applies.
The wise money seems to be on"it depends".
(For what it's worth, my thoughts are:
(a) Don't know. This is largely factual and a matter of credibility.
(b) The exception applies. I doubt that, on an objective view, a person can reasonably expect that a conversation in a café (with journalists through the window watching and staff in the café working) is private and will not be overheard.
(c) There may be temporal problems in matching any mens rea (intention) and actus reus (the critical act causing the interception);
(d) I'm not convinced the offence – in the light of its history/purpose and the freedom of expression (right to receive information) in the Bill of Rights) – was designed to catch this type of thing.
But that's by-the-bye.)
The interesting thing will be whether the High Court gives a ruling or not. There's no guarantee it will. But I think it probably should.
Let me explain.
The Declaratory Judgments Act 1908 allows people to go to the High Court for clarification about the legality of a wide range of acts and situations:
"s 3 Declaratory orders on originating summons
Where any person has done or desires to do any act the validity, legality, or effect of which depends on the construction or validity of any statute….such person may apply to the High Court by originating summons for a declaratory order determining any question as to the construction or validity of such statute…"
So, on its face, questions of legality could be settled by the Court under this power.
But. The jurisdiction to issue a declaration is discretionary (see s 10). In ordinary circumstances, someone seeking a declaratory judgment like this would face formidable hurdles:
1. Here, questions of legality involve critical factual matters, not merely the interpretation of the wording of the legislation (although the two are intertwined). The courts are reluctant to issue declaratory judgments where factual matters are in dispute (see Omaha Beach Residents Society v GNS Trust Ltd  NZCA 413). The procedure for declaratory judgments is "on the papers", ie based on affidavit evidence, not based on witness testimony (although in rare cases this might be possible). It's not designed to resolve factual disputes.
2. The courts sometimes discourage the use of declaratory judgments where clarification of the legal position can be obtained in, or would pre-empt, more appropriate proceedings, especially criminal proceedings. It may be more desirable to prosecute and let the criminal process take its course - although the authorities are a little mixed on this (see for example Woolworths (New Zealand) Ltd v Attorney-General  3 NZLR 123 and Auckland Area Health Board v Attorney-General  1 NZLR 235). Further, note the Supreme Court's recent decision, Mandic v The Cornwall Park Trust Board  NZSC 135, seems to suggest (in obiter comments) that the declaratory judgment should not be treated as a residual remedy and its availability should not be unduly narrowed.
Hard to know what way a judge will go.
I said, though, that I think the judge probably should issue a declaration, to the extent they can on the evidence presented.
Why? It's often said that in law, context is everything. Here, the issue of legality arises on the hustings, with election day fast-approaching.
The uncertainty about legality is, I think, inhibiting political and electoral discourse. Yes, there's a lot of chatter about the circumstances of the teapot tapes. But the recording itself and transcript have still not been disclosed (even though hints and hearsay accounts are rife). Doubts about legality – and associated police action – have a chilling and gagging effect.
The courts have in the past adopted a more vigilant role in protecting the institution of the election. The constitutional context has demanded a more active role to ensure propriety and to protect the democratic process. (There's a very good article written by one of my former students, David Bullock, forthcoming in the VUWLR where he makes this type of argument. His analysis is rather convincing.)
A similar argument can be made here. Ordinarily, a request for clarification of this kind might be met with judicial restraint and reluctance. However, the electoral context here favours a more courageous approach by the courts – especially as the temporal horizon means criminal proceedings can't bring any resolution of the uncertainty before the election.
Regardless, it will be very interesting to see how the court rules.
UPDATE: The citation for David Bullock's article is "Electoral Expression With Institutional Bounds: Framing Judicial Treatment of Elections in New Zealand" (2011) 42 VUWLR 459 (forthcoming).