The High Court judge hearing the case about the 'tea tape' recording of the conversation between John Key and John Banks has decided not to make a call on whether it was a private conversation.
The conversation between the National Party leader and the ACT Party's Epsom candidate was recorded at a cafe in Newmarket on 11 November by freelance cameraman Bradley Ambrose.
The meeting between Mr Key and Mr Banks was widely viewed as a signal to National supporters that they should vote for Mr Banks.
Mr Ambrose had put his microphone on the table and then gave the recording to the Herald on Sunday newspaper.
Mr Key laid a complaint with police saying the conversation was private and recorded illegally.
Mr Ambrose then sought a ruling at the High Court in Auckland over whether the conversation was private or not.
On Tuesday, lawyers representing Mr Ambrose argued the discussion was public, and counsel for the Crown, media and Mr Key also presented their case before Justice Winkelmann.
In her written judgment on Wednesday afternoon, Justice Winkelmann stated that having considered the evidentiary material before her she would decline to make a declaration.
Justice Winkelmann said that in declining to exercise the discretion to make a declaratory order she had "not reached any view on whether this was a private communication and whether Mr Ambrose's actions engage section 261B (of the Crimes Act)."
"Indeed my decision turns upon the inadequacy of the evidentiary material before me to reach such a view and in any event, the inappropriateness of my undertaking a mini trial as to whether certain conduct constituted a criminal offence, when exercising the Court's civil jurisdiction, and in advance of a police investigation or trial."
The lawyer for the cameraman who recorded the conversation between John Key and John Banks, says they're
Justice Winkelmann this afternoon said that she isn't satisfied she has enough evidence to make the determination, and fears it could prejudice any potential criminal proceedings.
Ron Mansfield, the lawyer for Mr Ambrose, told Checkpoint his client was disappointed by the ruling and just wanted to get back to work as soon as possible.
He says they are happy to hand over any footage recorded and are confident that the police will not lay charges.
"We are quite happy for the police to fully investigate the matter because we think that if they do they will come to the conclusion one that it wasn't a private communication.
"And secondly they will come to the conclusion that it wasn't recorded intentionally," he said.
Police execute search warrant
Police had earlier issued search warrants on APN, which owns the Herald on Sunday, TV 3, TVNZ and Radio New Zealand as part of their investigation into the complaint laid by Mr Key.
Radio New Zealand was contacted by police after the ruling on Wednesday.
Head of News Don Rood says the organisation is considering the court decision and is consulting its lawyers.
TVNZ has confirmed it has handed field footage to the police.
TVNZ spokesperson Megan Richards says the organisation was not required to disclose any sources during the search on Wednesday.
