Aaron Smith Illegally Recorded in Disabled Toilet - Legal Argument from Jeremy Bioletti

The recording of All Black Aaron Smith and the woman he 

allegedly had sex with in a Christchurch Airport toilet raises

the important issue of whether the recording may have been

a crime under the privacy provisions of the Crimes Act.

According to media reports a person directly outside the

disabled toilet where the incident occurred used a cell phone 

to make an audio recording of the activity that was occurring. 

This apparently “left no doubt as to what was occurring.”

Although I have not heard the recording it may well be that

communications occurring between the two people involved 

were captured by way of the recording.  Clearly at no stage 

were they interrupted to inquire as to whether they consented

to being recorded.

Part 9A of the Crimes Act defines crimes against personal privacy.

Section 216A defines various terms used in the offence provisions

of the act. Under Section 216A intercept includes in relation to a

private communication to record the communication while it is

taking place. Obviously here a recording took place.

 An interception device includes any electronical device that is 

capable of intercepting a private communication. 

The cell phone used on this occasion is clearly such a device.

The section defines private communication which means

a communication (whether in oral or written form or otherwise)

made under circumstances that may reasonably be taken

 to indicate that any party to the communication desires 

it to be confined to the parties to the communication; but

(b)

does not include such a communication occurring 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.

As the activity occurred in the disabled toilet it may well be that 

the door was closed and the particular space was sealed off. 

Disabled toilets are usually a self-contained space within the

 toilet block. This would indicate a desire by the parties

 that any communication be confined to the parties and 

that there was no reasonable expectation that the

 communication would be intercepted.

Lastly under section 216A a party is defined as any originator

 of the communication and any person intended by the

originator to receive it.

Accordingly  party is an intended party to the communication

. The person recording the activity on his cellphone 

was not a party to the communication.

In this instance a private communication may  have been intercepted.

Section 216B of the Crimes Act  makes it an offence liable to

 imprisonment for a term not exceeding 2 years to intentionally 

intercept any private communication by means of an interception

 device.Section 216C makes it an offence to disclose a private 

communication or the substance meaning or purport of the 

communication of it or any part of it which has been unlawfully 

intercepted if you know it has come to your knowledge through

 an unlawful interception.

The actions of the person who made the recording and the media 

who publicised it may constitute a crime. Certainly the consequences

 for Aaron and his former partner have been severe. The woman involved

 whilst anonymous at the moment will be suffering from being hunted

 by the media and if identified may well suffer serious personal consequences.