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.
