Gill v Attorney-General
[2010] NZCA 468
•15 October 2010
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IN THE COURT OF APPEAL OF NEW ZEALAND
CA664/2009
[2010] NZCA 468BETWEENJUDITH HEATHER GILL AND ORS
Appellants
ANDTHE ATTORNEY-GENERAL
First RespondentANDTHE REGISTRAR OF AUCKLAND DISTRICT COURT
Second Respondent
Hearing:25 August 2010
Court:Hammond, Arnold and Stevens JJ
Counsel:R J Hooker and T Homes for Appellants
A M Adams and H H Ifwersen for First Respondent
Judgment:15 October 2010 at 2.15 pm
JUDGMENT OF THE COURT
A The appeal is dismissed.
BThe respondents are entitled to costs for a standard appeal on a Band B basis with an uplift of 100 per cent, plus the usual disbursements as fixed by the Registrar.
____________________________________________________________________
REASONS OF THE COURT
(Given by Stevens J)
Table of Contents
Para No
Introduction [1]
Factual background
Summary [4]
The New Zealand public healthcare Scheme [9]
The Ministry’s analysis and audit [11]The investigation – more detail [12]
The search warrant [14]
The High Court decision [15]
First question – was judicial review appropriate? [16]
Second question – challenge to High Court decision
First issue – was the warrant properly issued? [30]
The standard to be applied to s 198 [32]
Failure to exhibit the PHO Agreement[37]
Casual patients and foreign visitors[40]
Failure to exhibit the draft audit report [46]
Failure to exhibit enrolment forms [50]
Vaccination patients [54]
Second issue: Registrar’s appreciation confidential patient files sought [57]
Third issue – reasonableness and the absence of conditions [65]
Fourth issue – scope of the warrant [77]
Fifth issue: was the warrant lawfully executed? [85]
Recent developments in the law [88]
Seizure of hard copies of patient files [91]
Police involvement in execution of warrant [102]
Cloning the hard drive [111]
Result [118]
Costs [119]
Next steps [123]Introduction
[1] This appeal concerns a challenge by way of judicial review to the issue and subsequent execution of a search warrant in November 2008 at the medical practice of Dr Gill, Auckland Metro Doctors. The search warrant was issued by the Registrar of the Auckland District Court on the application of an investigator from the Ministry of Health (the Ministry). On its execution, a substantial number of paper and electronic files were seized from Dr Gill’s premises. Rather than awaiting the outcome of the investigation into whether any criminal offences had been committed, Dr Gill brought a pre-emptive challenge against the Attorney-General on behalf of the Ministry before the High Court as to the lawfulness of the issue and execution of the warrant. The High Court dismissed all grounds of challenge[1] and Dr Gill and her medical practice (the appellants) have appealed against that decision.
[1]Gill v Attorney-General HC Auckland CIV-2008-404-8247, 27 November 2009.
[2] There are two key questions raised by the appeal:
(a)whether it is appropriate for the appellants to resort to a challenge by way of judicial review at an early stage of the investigation; and
(b)whether the appellants have demonstrated that the Judge’s decision dismissing all grounds of challenge in the High Court was wrong.
[3] The second question may conveniently be broken down into five main issues as follows:
(i)Whether the warrant was properly issued by the Registrar. This issue will require consideration of five discrete grounds of challenge to be described in more detail later in this judgment.
(ii)Whether the Registrar appreciated that the application for the warrant raised the question of the confidentiality of patient files and whether he should have considered imposing conditions on the issue of the warrant.
(iii)The reasonableness of the issue of the warrant, including the absence of terms and conditions relating to the confidentiality of patient files.
(iv)The scope of the warrant, including whether it was too broad and/or permitted the Ministry officials to embark on a fishing exercise.
(v)Whether the warrant was lawfully and/or reasonably executed.
Factual background
Summary
[4] As a result of an audit and subsequent investigation of the medical practice of Auckland Metro Doctors in 2008, Ministry officials considered that they had good cause to suspect that Dr Gill had been dishonestly claiming for public health funding through the inappropriate enrolment of patients on her Primary Health Care Organisation Register (PHO Register). The enrolments resulted in up to three years of funding per patient, of which the practice had many thousands. The patients that appeared to be inappropriately enrolled included transitory overseas visitors not entitled to publicly-funded health care and New Zealand patients attending the practice for specific reasons, such as travel vaccinations, but who did not choose Dr Gill as their primary healthcare provider and in respect of whom Dr Gill was not entitled to receive public funding.
[5] As the Ministry considered that imprisonable offences against s 228(b) and s 240(1)(a) of the Crimes Act 1961 had been committed by Dr Gill, it applied to the Registrar of the District Court for a search warrant.[2] A supporting affidavit by a senior investigator, Ms Rolls, explained the background and attached an appendix listing 9,276 names comprising a portion of the patients enrolled on Dr Gill’s PHO Register in respect of whom fraudulent claims were suspected and whose patients records from the practice were sought. A search warrant was issued by the Registrar on 5 November 2008 and extended to patient consultation records, enrolment forms, computer hard drives and other business records of the practice.
[2]Pursuant to s 198 of the Summary Proceedings Act 1957.
[6] The search warrant was executed at Dr Gill’s practice on 11 November 2008. Execution was overseen by police officers and was carried out by Ministry officials. Those persons were confronted with a very large number of paper files compromising more than 1,500 files, 50 Eastlight folders and 100 file boxes. It was not possible at the time of the search for officials to identify and isolate the 9,276 patient files without closing down Dr Gill’s practice. Hence officials decided to seize and remove to a secure off-site location all paper patient files that could reasonably be expected to include the 9,276 listed patients. In addition, the practice computer was forensically acquired by cloning it.
[7] The seizure and subsequent storage and sorting of the paper files seized were carried out in accordance with strict protocols adopted by the Ministry. As soon as any files and records (including patient files) were identified as being outside the 9,276 listed names, they were returned to Dr Gill. The protocols sought to ensure that the tasks undertaken by officials were attended to promptly, protected patient confidentiality and provided Dr Gill with ready access to any files that she required for the purpose of her practice.
[8] Several weeks after the execution of the warrant, the appellants challenged the validity of the warrant and its execution and sought the return of all the seized files. By that time, officials had sorted through, and returned to Dr Gill, a substantial portion of the files. Proceedings by way of an application for judicial review were issued on 10 December 2008. The Ministry agreed to place all of the files remaining in its possession at that time into the custody of the High Court, pending a resolution of the proceedings. This has resulted in the criminal investigation being suspended. In particular, there are further files and records yet to be reviewed.
The New Zealand public healthcare scheme
[9] New Zealand’s publicly-funded healthcare scheme requires doctors and practices to enrol patients on their PHO Register in order to receive funding for any given patient. Once a patient is enrolled, the doctor or practice receives funding for that patient for three years, unless the patient dies, transfers to another doctor or practice, or otherwise becomes ineligible for funding. Primary healthcare funding is on a per head (or capitation) rather than per visit basis. Doctors and practices are not entitled to receive primary healthcare funding for certain patients, such as overseas visitors who are ineligible for primary funding. Nor may a doctor or practice receive primary funding for New Zealand residents who do not choose that particular doctor or practice as their usual healthcare provider. Before a patient may be enrolled, the patient must complete a PHO enrolment form nominating a doctor or practice as their usual healthcare provider.
[10] This scheme is established by a series of contractual arrangements. The Auckland District Health Board is responsible for overseeing and funding healthcare and has contracted Procare Health Ltd (Procare) to deliver primary healthcare services. A PHO agreement between the District Health Board and Procare contains the terms and conditions on which patients may be enrolled on a PHO Register. Procare in turn subcontracts with individual doctors and practices, including Dr Gill. The subcontract binds Dr Gill to the terms of enrolment in the PHO agreement.
The Ministry’s analysis and audit
[11] In early 2008, the Ministry wrote to Dr Gill drawing attention to irregularities in her PHO Register in a routine analysis and stating its intention to audit her register. It requested information in respect of a number of patients, but not all of the information was provided. The Ministry could not complete the audit without this information, but instead produced a draft audit report on 17 March 2008. The report revealed significant irregularities. Based on the information in the report, the Ministry suspected that Dr Gill had enrolled on her PHO Register patients for whom she was not entitled to receive funding. In particular, information held by the Ministry suggested a pattern of enrolling ineligible patients such as overseas visitors and New Zealand residents who had visited Dr Gill on a casual basis, such as for a travel vaccination, and did not intend for Dr Gill to be their usual provider.
The investigation – more detail
[12] The Ministry therefore commenced an investigation. Despite Dr Gill’s failure to supply all of the requested documents, the investigation uncovered further evidence of suspected fraudulent activity, including:
(a)claiming that consultations with certain patients had occurred when they had not, so as to maintain those patients on the PHO Register;
(b)enrolment of patients Dr Gill never saw;
(c)enrolment of overseas visitors who had stated that they were in New Zealand temporarily;
(d)enrolment of patients who did not sign the enrolment form and with whom enrolment had not been discussed; and
(e)enrolment of patients against their express wishes.
[13] Accordingly, the Ministry considered that there were reasonable grounds to believe that evidence associated with the commission of offences would be found at the premises of Dr Gill’s practice. The offences concerned suspected fraudulent claiming and obtaining by the Dr Gill of government funding for patients in respect of whom she was not entitled to funding. The specific offences concerned dishonestly using a document to obtain a pecuniary advantage and obtaining by deception.[3]
The search warrant
[3]Contrary to s 228(b) and s 240 of the Crimes Act 1961 respectively.
[14] The application for a search warrant followed the investigation. For reasons that will be discussed later, the search warrant was in the usual form and did not contain any conditions dealing with the confidentiality of patient files and consultation records.
The High Court decision
[15] In the High Court, Hugh Williams J dismissed all causes of actions in the application for judicial review. He summarised the result as follows:
[243] The nub of plaintiffs’ claims is that what occurred on the obtaining and execution of the search warrant amounted to unreasonable search and seizure in breach of s 21 of NZBoRA. For the reasons given, the conclusion is that no case has been made out for breach of s 21. The warrant affidavit did not mislead the Issuing Officer. It did not need to exhibit the voluminous material suggested by Mr Hooker. The manner of its execution – particularly the wholesale removal of the plaintiff’s practice records – was not unreasonable. The way in which the computer hard drive was cloned was unexceptionable. While the circumstances create considerable concern for the plaintiffs, none of the pleaded breaches nor grounds for judicial review has been made out. No judicially reviewable error of law has been demonstrated.
First question – was judicial review appropriate?
[16] In their statement of claim by way of judicial review, the appellants sought the quashing of the search warrant and the return of all material seized. These remedies were sought at a time when the Ministry’s investigation was still proceeding, not all the seized materials had been reviewed and no decision had been made as to whether to lay criminal charges against Dr Gill. There is no dispute that the filing of the judicial review proceedings halted the criminal investigation.
[17] The limitations of judicial review in the context of a criminal investigation are self evident. There is usually no cross-examination and hence the court has restricted fact-finding ability. We agree with the submission of Ms Adams for the Ministry that judicial review is not the appropriate forum in which to adjudicate upon the strength of a possible criminal case against Dr Gill, her likely defences or the exclusion of evidence at any future criminal trial. The disadvantages of the choice by the appellants of an application for judicial review were recognised by the Judge as follows:[4]
[I]t needs to be noted that the challenge to MoH’s obtaining and executing the search warrant in this case is brought under the rubric of judicial review. What the plaintiffs must therefore demonstrate is error of law in the traditional judicial review sense, set against the requirements of s 198 ([R v] Williams [[2007] 3 NZLR 207], A Firm of Solicitors [v District Court at Auckland [2006] 1 NZLR 586 (CA)], and the other authorities to which reference has been made). The affidavits in this case are voluminous but, given the usual lack of cross-examination in judicial review, there is a significant weight in the observations in Faisaltex [R (Faisaltex Ltd) v PrestonCrown Court [2009] 1 Cr App R 564 at 578] and Fitzpatrick [R v Chief Constable of Warwickshire, ex p Fitzpatrick [1999] 1 WLR 564 (QB)] that judicial review is an “extremely unsatisfactory tool” to make findings on the manner of applying for and executing search warrants or on their lawfulness under s 21 of NZBoRA.
[4]At [199].
[18] Mr Hooker for the appellants submitted that a challenge by way of judicial review was necessary so that Dr Gill could ensure that the confidentiality of patient consultation and other records could be maintained. He further contended that it was necessary to test the nature and scope of any privilege surrounding confidential information and records emanating from the doctor-patient relationship. Had this been the real purpose of the judicial review proceedings, we consider it could have been achieved by means of a succinct, focused statement of claim directed to those key points. An alternative approach would have been to negotiate with Ministry officials or its legal advisers suitable confidentiality undertakings pending the outcome of the investigation. But rather, a broadly based statement of claim sought to challenge many aspects of the application for the search warrant, its issue and execution.
[19] We consider that the judicial review action was not the appropriate means of proceeding in the circumstances of this case. First, it was prematurely taken. The criminal investigation was in its early stages and not all of the seized material had been reviewed. Second, if criminal charges had been laid against Dr Gill, various opportunities would have arisen to challenge the validity of the warrant and/or its execution either before any trial or in the course of it. Consideration of the warrant and any evidence obtained pursuant to it could more appropriately have been tested pursuant to an application under s 344A of the Crimes Act. Issues of relevance, admissibility generally and exclusion of evidence (taking into account s 30 of the Evidence Act 2006) could therefore have been conveniently ruled on. Judicial review will rarely be appropriate where there is a readily-available alternative remedy,[5] and in particular the courts have held that they will only intervene in matters which involve the exercise of a prosecutorial discretion or investigative power in exceptional cases.[6]
[5]See G D S Taylor and J K Gorman Judicial Review: A New Zealand Perspective (2nd ed, LexisNexis, Wellington, 2009) at [5.28].
[6]Fox v Attorney-General [2002] 3 NZLR 62 (CA) at 69–72; Polynesian Spa Ltd v Osborne [2005] NZAR 408 (HC) at [61]–[69].
[20] We have not overlooked the possibility that grounds may exist in appropriate cases to challenge a search warrant by judicial review proceedings. This Court has previously entertained such challenges by way of judicial review where the defect in the search warrant is of a fundamental nature, where the matter could be said to go to the jurisdiction of the issuing officer or where some other ground of true unlawfulness (such as want of jurisdiction) is established. Hence, in a case where the challenge to the warrant was unsuccessful, this Court has acknowledged that a search warrant issued under s 198 of the Summary Proceedings Act 1957 is amenable to challenge on jurisdictional grounds not only in proceedings instituted for that purpose, but also in collateral trial proceedings in which the obtaining of the warrant and the finding of property or other evidence are impugned.[7] That observation was, however, made in the context of an application to appeal a ruling made in the District Court that a warrant was validly issued.[8]
[7]R v Grayson and Taylor [1997] 1 NZLR 399 at 408.
[8]A similar challenged against the validity and execution of a search warrant came before this Court of an appeal against a pretrial ruling under s 344A of the Crimes Act in R v Sanders [1994] 3 NZLR 450.
[21] A successful challenge to a search warrant occurred in Auckland Medical Aid Trust v Taylor.[9] There the warrant was found to be fundamentally defective because it was not issued in respect of a particular offence and with sufficient particularity that the searching officer would know the offence to which the evidence must relate. As McMullin J concluded, those whose premises are being searched must “know just what are the metes and bounds of the search and seizure contemplated.”[10]
[9]Auckland Medical Aid Trust v Taylor [1975] 1 NZLR 728 (CA).
[10]At 749.
[22] A similar result followed in Tranz Rail Ltd v Wellington District Court.[11] That case concerned a search warrant under s 98(2) of the Commerce Act 1986. The warrant was found to be invalid on the basis that it was too widely drawn, was general and lacked specificity.
[11]Tranz Rail Ltd v Wellington District Court [2002] 3 NZLR 780 (CA).
[23] We also refer in this context to the decision of this Court in A Firm of Solicitors v District Court at Auckland.[12] A search warrant obtained by the Serious Fraud Office was successfully challenged on an application for judicial review. The warrant was directed to the offices of a law firm, two of whose clients were suspected of committing fraud. The warrant was held to be fundamentally flawed on a number of grounds including material non-disclosure in the application for the warrant, a lack of specificity, and the absence of a mechanism for dealing with legal professional privilege.
[12]As discussed by Tipping J at [38] to [42].
[24] We note also that the challenges in all of the examples discussed above occurred before the advent of s 30 of the Evidence Act, which provides a mechanism for determining in criminal cases whether evidence improperly obtained should or should not be excluded on a proportionality basis.
[25] We consider that there is considerable force in the observations of Jowitt J, with whom Rose LJ agreed, in R v Chief Constable of Warwickshire Ex p Fitzpatrick when he stated:[13]
Judicial review is not a fact finding exercise and it is an extremely unsatisfactory tool by which to determine, in any but the clearest of cases, whether there has been a seizure of material not permitted by a search warrant. In my judgment a person who complains of excessive seizure in breach of section 16(8) should not, save in such cases, seek his remedy by way of judicial review but should rely on his private law remedy when he will have a tribunal which will be able to hear evidence and make findings of fact unfettered by Wednesbury principles. In an appropriate case the court in a private law action is able to grant interlocutory relief on a speedy basis on well recognised principles so that in all by the clearest cases of a breach of section 16(8) judicial review has only disadvantages and no advantages when compared with the private law remedy. (Emphasis added.)
[13]R v Chief Constable of Warwickshire, ex parte Fitzpatrick [1999] 1 WLR 564 (QB) at 579. This passage was endorsed by the Divisional Court in R (Faisaltex Ltd) v Preston Crown Court [2008] EWHC 2832 (Admin), [2009] 1 WLR 1687at [91].
[26] The prospect of seeking a civil remedy in the context of a challenge to a search warrant by virtue of public interest immunity was also canvassed by this Court in New Zealand Air Line Pilots’ Association Inc v Attorney-General.[14]
[14]New Zealand Air Line Pilots’ Association Inc v Attorney-General [1997] 3 NZLR 269 at 291.
[27] The discretionary nature of a grant of relief in judicial review case also requires mention. Even if certain grounds of challenge are made out, this does not mean that relief must follow. It would be open to a Court considering a pre-emptive challenge in the course of a criminal investigation and prior to any decision to charge, to refuse to grant relief if it might involve the premature exclusion of evidence divorced from any consideration of proportionality issues. A similar approach was taken in the context of application for a declaration regarding the lawfulness of seizure of fish under s 207 of the Fisheries Act 1996. In South East Resources 2001 Ltd v Chief Executive Ministry of Fisheries MacKenzie J observed:[15]
If I were to decline to make a declaration at this stage, in the exercise of my discretion under the Declaratory Judgments Act, that would not mean that no judicial ruling on the plaintiff’s legal position would be possible. Issues as to the legality of the respondent’s actions could be raised in any criminal proceedings, which might follow the investigation. If no criminal proceedings follow, then the validity of the respondent’s actions, as they affect the plaintiff’s property rights in respect of the hoki, could be the subject of civil proceedings. Thus, the issue is not whether the Court should intervene at all, but rather as to the timing of that intervention.
[15]South East Resources 2001 Ltd v Chief Executive, Ministry of Fisheries [2004] NZAR 715 (HC) at [19].
[28] Relief was declined in the exercise of the Court’s discretion.
[29] We therefore consider that the use of the rather blunt instrument of judicial review should rarely be permitted to be used to challenge the issue, validity and execution of a search warrant, particularly in the course of an investigation into alleged criminal offending. This was not an appropriate case to do so. But because the various detailed grounds of challenge were fully argued in the High Court and before us, we propose to rule on each point raised by the appellants.
Second question – challenge to High Court decision
First issue – was the warrant properly issued?
[30] This issue needs to be divided into the following sub-issues raised by the appellants both in the notice of appeal and the written submissions:
(a)Whether the PHO agreement ought to have been exhibited to Ms Rolls’ affidavit in support of the application, or alternatively was the summary included in the affidavit misleading in any material respect?
(b)Was the Registrar misled by the description in the affidavit of the position of casual patients and the appropriateness of the enrolment of foreign visitors?
(c)Whether the draft audit report ought to have been attached to the affidavit, or alternatively was the summary discussion of it in the affidavit misleading in any material respect?
(d)Was the Registrar misled by the failure to attach examples of the enrolment forms or by the description in the affidavit of the content of the enrolment forms?
(e)Whether the description of the vaccination patients in the affidavit involved such a “lack [of] specific information to be of any evidential basis”?
[31] We will briefly deal with the standard to be applied in determining whether the search warrant was correctly issued, before addressing each of the challenges raised by the appellants under this head.
The standard to be applied to s 198
[32] The High Court judgment correctly identified the relevant appellate authorities on the evaluation of search warrants under s 198 of the Summary Proceedings Act, in particular, the relevant paragraphs from R v Williams.[16] The Judge also referred to R v Kissling[17] and R v T.[18] In the latter case, this Court confirmed that the principles set out at [208]–[225] of R vWilliams are “guidance as to best practice for those who apply for search warrants”.[19] The applicable standard was conveniently summarised by this Court in R v T as follows:[20]
[T]he courts must not lose sight of the fundamental principle that an application for a search warrant under s 198 of the Summary Proceedings Act 1957 must be supported by evidence which affords the issuing officer with reasonable grounds to believe that the evidence associated with the commission of an offence is at the stated location. Where the application provides such evidence with reasonable specificity, the material supplied is not misleading or selective and the power of search which is sought is not unduly wide, there will be little or no scope for a successful challenge.
[16]R v Williams [2007] 3 NZLR 207.
[17]R v Kissling [2008] NZCA 559, [2009] 1 NZLR 641.
[18]R v T [2008] NZCA 99.
[19]At [9].
[20]Ibid.
[33] In R v Kissling this Court warned against taking an over technical approach in challenges to the validity of search warrants under s 198, in particular where factors were “of peripheral significance and ... do not detract from the cogency of what was properly available.”[21] Moreover, the Court added: “It is important that defence counsel (and the courts for that matter) do not engaged in nitpicking exercises”.[22]
[21]At [35].
[22]At [36].
[34] Having referred to these authorities, the High Court held that the application and the search warrant met the requirements of s 198 of the Summary Proceedings Act. Thus the Registrar was justified in issuing it. In support of these findings, the following key points were identified:[23]
(a)The primacy of s 198 is important. The test for issuing search warrants in s 198 is whether the Issuing Officer, having received sworn evidence, is “satisfied that there is reasonable ground for believing” that buildings, premises or other places will contain items which, broadly speaking, will be evidence of the commission ... of a nominated crime punishable by imprisonment.
(b)The s 198 procedure does not contemplate a hearing on the merits supported by argument. It does not necessarily require the provision of documents supporting the application ... Poring over the detail of the considerable additional documentation was unlikely to have been helpful. All that would have introduced an element of complexity and distraction to what Parliament intended to be a relatively simple process. ...
(d)... As was said in Williams (at 213) all the applicant needs to demonstrate is a reasonably objective and credible basis for thinking the search will turn up the items sought. If the application does not reach that standard, it fails.
(e)... Section 198 provides a relatively straightforward set of requirements for the issue or denial of search warrants, conditioned or unconditioned, and attempts by counsel or litigants to gloss the statute with a set of much more complicated and rigorous requirements is not to be encouraged.
(f)[...] [T]he Issuing Officer is entitled to rely on the sworn statement in support of the warrant application without anything substantial in addition. In this case, Ms Rolls having made a sworn affidavit in support, there was no need for her, for example, to produce the voluminous contractual documents to support what she said about eligibility for subsidies and the categories of those entitled. Provided her affidavit was accurate in that respect, the Issuing Officer was entitled to rely on what she swore.
[23]At [196].
[35] Before considering the appellants’ specific challenges to the validity of the warrant, it is convenient to refer to the conclusions of the High Court. The Judge held:
[208] Assessing the warrant affidavit and the warrant, in terms of Williams and the earlier authorities mentioned, the Court’s view is that:
(a)The warrant and affidavit are as specific as circumstances allowed given the state of the investigation and Dr Gill’s rejection of the draft audit report.
(b)The papers accurately describe the offences and the time over which they were alleged to have occurred.
(c)The warrant and affidavit were specific as to the location of the search and the things likely to be discovered.
(d)The affidavit expressed Ms Rolls and therefore MoH’s opinion concerning “whether there were reasonable grounds to believe” leaving it to the Issuing Officer to reach his conclusion.
(e)Although additional material could have been exhibited to the affidavit, for the reasons mentioned, it was unlikely to have played much part in the Issuing Officer’s consideration of the s 198 criteria and may even have been unhelpful. Further, while the discussion of the relevant eligibility criteria could perhaps have been a little fuller, there is no basis to conclude it was inaccurate or misleading.
(f)Finally, the affidavit deposed to Ms Rolls’ personal belief and did not elaborate. With the possible exception of reference to Dr Gill’s rejection of the draft audit report, it would have been obvious to the Issuing Officer that MoH, in its role as Devil’s Advocate, could do no more than express scepticism of the only view contrary to that which it held.
[209] In the final analysis, the Court’s view is that the warrant affidavit and the search warrant fulfilled the requirements of s 198 and the Issuing Officer was therefore justified in terms of the statute in issuing the warrant.
[36] For the Ministry, Ms Adams correctly submitted that this Court has recognised that the issue and execution of a search warrant is an exercise of discretion.[24] Counsel emphasised the significance of this in the context of an application for judicial review which can only provide an appraisal of the decision-making process against the usual principles of review. Accordingly, both before the High Court and on appeal the burden was on the appellants to establish that the decision to issue the search warrant was not properly open to the Registrar and that there were other errors affecting the validity and execution of the warrant that merit the grant of a remedy partway through a criminal investigation. Against the above summary of the standard, we consider the specific challenges to validity of the warrant.
Failure to exhibit the PHO Agreement
[24]Citing Television New Zealand Ltd v Attorney-General [1995] 2 NZLR 641 at 647.
[37] The starting point is the High Court judgment. A firm view was reached by the Judge that there was no obligation to exhibit the PHO Agreement and the related documents to the affidavit.[25] He accepted that the s 198 procedure does not necessarily require the provision of documents supporting the application. In particular, the Judge found that:[26]
The PHO contract and its incorporated documents are lengthy, complex and, depending on the way various provisions are interpreted, may even be contradictory. Putting them before the Issuing Officer would either risk no attention being paid to them or a lengthy attenuated hearing dealing with aspects of contractual interpretation. Section 198 does not require that.
[25]At [195] and [196].
[26] At [196](c).
[38] We agree. A summary of the contractual arrangements was all that was required to be placed before the Registrar. Given that the s 198 procedure does not contemplate a hearing on the merits, the Registrar is entitled to rely on the sworn statement summarising the position in the affidavit. Axiomatically, any summary must be accurate.
[39] The appellants have not demonstrated that the Judge’s overall approach and findings on this point were wrong. Further, we do not consider that the appellants have shown that the summary of the contractual arrangements for healthcare funding was misleading in any material respect. On the contrary we are satisfied that Ms Rolls concisely outlined the key features of a rather complex system in a manner likely to have been of assistance to the Registrar. This ground of appeal must fail.
Casual patients and foreign visitors
[40] In his written and oral submissions, Mr Hooker argued strongly that the affidavit was deficient, and the contents would have misled the Registrar in a number of respects. In summary, the affidavit was in error by asserting that a one-off, publicly funded service payment is available for casual patients who are visitors from the United Kingdom or Australia. It was submitted that in actuality Dr Gill enrolled United Kingdom and Australian visitors on her PHO register because they did not fit the criteria enabling her to claim the fee for service for them as “casual users” and such enrolment was the only way to obtain Government funding, pursuant to reciprocity healthcare legislation, for their treatment. The appellants also submitted that the application did not produce, or deal adequately with, the PHO Agreement and the Ministry information on the Ministry website. Thus the Registrar did not have available information on which to accurately determine this question. It is therefore submitted that the Registrar was misleading in material respect.
[41] Under this ground, the appellants submitted that the Registrar was misled in relation to the description in the affidavit of the position regarding casual patients and the appropriateness of enrolment on Dr Gill’s PHO Register (and the prospect of public funding for three years) of visitors to New Zealand, particularly those from the United Kingdom and Australia.
[42] We have carefully considered the affidavit that was before the Registrar. It dealt with the issue of eligibility for capitation funding on the one hand or a fee for service on the other for patients treated at a doctor’s surgery. The affidavit also referred to the distinction between casual and enrolled patients and referred to certain features of the PHO Agreement. The affidavit summarised some common reasons why a patient who is not enrolled on the PHO Register may nevertheless be entitled to funding on a fee for service basis.[27] The Judge concluded that this material accurately reflected “the basis for part of [the Ministry’s] concern that Dr Gill may have received unjustified public funding and the amount”. [28] The Judge also found that paragraph 29 was “a spare recital of the position for British and Australian visitors.”[29]
[27]At paragraph 29.
[28]At [206](e).
[29]At [206](f).
[43] Counsel for the Ministry submitted that the Registrar was not misled by the content of the affidavit. Rather, it is the appellants who have misunderstood the legal position. Counsel for the Ministry submitted that no United Kingdom or Australian citizen who is temporarily in New Zealand who meets the eligibility criteria of the relevant national reciprocity legislation is entitled to be enrolled on a PHO Register. This is because they cannot possibly intend to receive publicly-funded, ongoing primary health care from a New Zealand doctor. Accordingly, the appellants’ submission that Dr Gill had to enrol such patients to be able to obtain funding for them is misconceived. Putting aside the position with respect to fees for service, enrolment of the visitors for up to three years’ primary health care funding in each case was not justified.
[44] Counsel for the Ministry also submitted that the appellants were wrong in contending that the fee for service payments are not available to such visitors. This is because United Kingdom citizens temporarily in New Zealand who require prompt treatment may be entitled to a fee for service or partial subsidy for attendance in certain circumstances.[30] With respect to Australians temporarily in New Zealand, they are not eligible for any publicly funded primary health care and therefore no fee for service subsidy is available for a casual user. Accordingly, the Judge was correct when he concluded that the affidavit accurately summarised the position for funding of casual users and foreign visitors. Moreover, the appellants’ key submission that the only way Dr Gill could deal with United Kingdom and Australian visitors for whom she could not obtain a fee for service to enrol them on her PHO Register for three years’ funding, was erroneous. The submission ignored the point, clearly set out in the affidavit, that there is a category of patients who are ineligible for funding. Such patients must therefore pay an unsubsidised fee for their visit to the doctor. The same applies in respect of a New Zealand citizen who attends a surgery as a casual patient and is not in the category of persons for whom a fee for service is available.
[30]For example, if they are a child under 6 years of age or are a “high user”.
[45] We are satisfied that the Registrar was not misled by the content of the affidavit in relation to casual patients or foreign visitors. We agree with the Ministry submission that it did not follow from the fact that Dr Gill could not claim a fee for service for some of these visitors that she should enrol them on her PHO Register. Therefore, like the Judge we are satisfied that the Ministry had reasonable grounds for believing that Dr Gill was aware that she had enrolled patients in her PHO Register whom she knew intended to be in New Zealand temporarily and did not intend to receive ongoing primary health care from her. The appellants have not shown that the Judge’s findings on this issue were erroneous. Moreover, they have not shown that the Registrar was misled by the content of the affidavit. The appellants have failed to make out this ground of appeal.
Failure to exhibit the draft audit report
[46] Under this ground of challenge the appellants submitted that the Registrar was misled by a failure in the affidavit to make clear that the audit report was only a draft, by the description of the findings of the audit report and by drawing unwarranted adverse inferences from it. At the hearing, Mr Hooker did not pursue the point concerning the failure to annex the draft audit report to the affidavit. But the appellants submitted that the Registrar was nevertheless misled about the report being a final one, when it was in fact only a draft.
[47] In the High Court, the Judge found as a fact that the statistics in the draft report were accurate, that the audit report mirrored the Ministry’s preliminary views and, given that Dr Gill had rejected the entire draft report, nothing would have been gained by the Ministry saying it disagreed with Dr Gill’s response.[31] The Judge also accepted that the audit report was not the only basis upon which Ministry officials suspected that offences punishable by imprisonment had been committed.[32] The post-audit investigation carried out by Ministry officials provided additional grounds on which to base the application for the search warrant.
[31]At [87]–[88] and [206](g).
[32]At [135]-[136].
[48] We have considered the paragraphs of the affidavit dealing with the audit. There is nothing in the fact that the audit report was not exhibited. The point was properly abandoned on appeal. Neither is there any merit to the challenge to the content of the affidavit summarising the audit report and its key findings. We are satisfied that there is no sound basis for the appellants’ submission that the Registrar was misled on this aspect.
[49] The appellants have not succeeded in demonstrated that the factual findings and other conclusions of the Judge concerning that audit were wrong. This ground of challenge must also fail.
Failure to exhibit enrolment forms
[50] For a provider such as Dr Gill to be permitted to enrol a patient on her PHO Register and claim capitated primary health care funding, the patient must meet both eligibility and entitlement requirements. Eligibility is the right of a person to be considered for publicly funded health care services in New Zealand, and is generally only available to New Zealand residents. The concept of entitlement is additional to eligibility. The PHO Agreement sets out the criteria to determine whether a person is entitled to be enrolled on the PHO Register. The key requirement is that the enrolling patient intends to use the doctor as their preferred provider of primary health care services, that is, as their regular doctor. Once a patient is enrolled, three years of funding follows unless the patient is disenrolled sooner. The Ministry’s case is that it is the doctor’s responsibility to assess whether a patient is entitled to be enrolled. The doctor has access to the criteria and to information provided by the patient, both of which are needed to make a decision as to enrolment. In essence, the doctor is both the trusted gatekeeper and the recipient of public health funding for patients. The Ministry contends that Dr Gill’s own enrolment forms collect sufficient information to enable her to make the necessary assessment. Therefore, when enrolment decisions are made there will be three categories of patients: enrolled patients (eligible for public funding and entitlement to be on the PHO Register); casual patients (who are eligible for part public funding but not entitled to be on the PHO Register); and ineligible patients (who are not eligible for public funding and who must pay the doctor a non-subsidised basis for their consultations).
[51] The affidavit in support of the application did not exhibit an example of Dr Gill’s enrolment forms. The appellants contended that this fact, coupled with the misleading content of the affidavit about the enrolment process and Dr Gill’s enrolment forms, would have misled the Registrar.
[52] The High Court considered this challenge and assessed both the content of Ms Rolls’ affidavit on this topic and an example of Dr Gill’s enrolment forms. We note that a feature of the Ministry’s case is the fact that on one part of the two page enrolment form a patient will sign following a sentence stating “I agree that I am now an enrolled patient of Auckland Metro Doctors and Travelcare”. With regard to the enrolment form point, the Judge made findings about the affidavit as follows:[33]
Paras 53-62 deal with difficulties [the Ministry] (and patients) experience with Dr Gill’s enrolment form especially as it related to casual users. The passage under consideration accurately reflects the considerable detail in the forms Dr Gill uses. Although the affidavit was erroneous in suggesting the patient could only sign the form once, that is immaterial.
[33]At [206](h).
[53] We are satisfied that these conclusions were correct. The appellants have not demonstrated that the Judge’s findings were erroneous. We agree with the Ministry’s submission that Dr Gill’s enrolment forms provided her with sufficient information to be able to assess whether her patients intended to stay in New Zealand and whether they intended to receive ongoing primary health care from her as their preferred provider. The signing of the enrolment forms deals with a different point namely that the patients consent to being enrolled. For completeness, we note that the appellants were critical of Ms Rolls’ statement in the affidavit that there were “many versions of these forms”. We were shown at least two versions in the evidence and Dr Gill’s own affidavit makes reference to these forms. There is nothing in this point. The challenge in relation to enrolment forms fails.
Vaccination patients
[54] This challenge concerned the content of the affidavit relating to the large number of patients who obtained travel vaccinations from Dr Gill. In some cases, such patients had been referred by their own doctor or a travel agent for this specific purpose. But Ministry inquiries revealed that such patients were enrolled by Dr Gill for ongoing public funding. Counsel for the Ministry referred to an enrolment form used for vaccination patients and contained a statement: “I wish to enrol as a patient at Auckland Metro Doctors and Travelcare.”
[55] The Judge decided that the paragraphs in the affidavit dealing with vaccination patients accurately summarised the position. He observed that the evidential statements referred to (from some patients who had been given travel vaccinations) might have been attached.[34] But this was not necessary when the affidavit contained an accurate summary of them. The gist of the evidential statements was these particular patients only attended Dr Gill’s practice to receive a travel vaccination and a visit was only intended to be on a one-off basis for that purpose. They did not intend to enrol as a funded patient with Dr Gill because they already had their own doctor. Further, enrolment was not discussed during their visit for the vaccination.
[34]At [206](i).
[56] The appellants contended that the discussion “lack[s] specific information to be of any evidential basis.” We disagree. The appellants have not shown that the Judge’s conclusion was wrong. We are satisfied that the Judge’s assessment of the affidavit on this point was balanced and accurate. We consider that this challenge is an example of the type of “nit-picking” that should not be encouraged. The challenge must therefore fail.
Second issue: Registrar’s appreciation that confidential patient files sought
[57] The gravamen of this challenge is that there is no evidence that Ms Rolls specifically drew to the attention of the Registrar that confidential medical records would be searched and seized. Further, it is submitted that the confidentiality of medical records and any information passing between doctor and patient ought to have been considered by the Registrar, evaluated and balanced against any competing public interest in advancing the investigation. In summary, the appellants submitted that “the warrant as issued and as executed had no regard to issues of patient confidentiality.” The applicable appeal point contended that the High Court was “wrong in law and fact in determining that there is no basis for their Registrar to impose a condition on the search warrants for doctors’ surgeries [sic] in a manner that conditions are regularly imposed on search warrants for lawyer’s [sic] offices”.
[58] The first question is whether the Registrar knew that he was dealing with a proposed search of medical records, including patient files, from a doctor’s surgery. This point may be shortly dealt with. Ms Rolls’ affidavit made it abundantly clear that the investigation was about the enrolment by a doctor of her patients for public funding. It was explained that the Ministry had been investigating various aspects of patients of the practice including:
(a)the personal details on enrolment forms;
(b)the status of the patients including whether they were visitors or New Zealand residents;
(c)the involvement of patients with other doctors;
(d)the clinical reasons for the visits; and
(e)whether the patients attended the claimed consultations.
The final seven paragraphs of the affidavit appear under a heading “MEDICAL RECORDS SOUGHT”. The affidavit itself refers to “details of patient consultations, date of service, clinical note details, appointment details, patient account details and claim records for this surgery ...” There is also a reference to the need to search enrolment and registration forms for patients on the surgery register. The records to be searched included both hard copies of patient records and all relevant computer records.
[59] Evidence before the High Court established that Ms Rolls specifically informed the Registrar, in response to a question from the Registrar, that the search warrant was intended to cover patient records. A contemporaneous file note made by Ms Rolls described the process followed by the Registrar and his statement: “Well this is a doctor’s surgery with patients.” The Registrar also asked “what do you mean by consultation note?” The response was that this meant “notes recorded by medical staff during consultations with patients.” The purpose of seeking these records was to provide proof that a consultation actually took place.
[60] The High Court was cognisant of these factual aspects and the competing contentions as to whether there was sufficient consideration of doctor-patient confidentiality by the Registrar. The Judge referred to the Registrar’s “obvious concerns about doctor/patient confidentiality as to the way in which [the Ministry] intended to deal with the seized material.”[35] Like the Judge, we are satisfied that there was ample evidence that the Registrar knew that the Ministry intended to search for and seized confidential patient medical records. The more significant question is how the protection of such records was dealt with by the Ministry.
[35]At [200].
[61] We consider that the affidavit fully spelt out for the Registrar why patient records were required for the investigation. Further, the reasons justifying access to patient records were obvious. These included the seriousness of the offending being investigated, the centrality of the patient records to the investigation and the limited disclosure likely to result from the execution of the search warrant. On the latter point, Ministry officials had in the course of the audit been inspecting Dr Gill’s patient records, including clinical and enrolment records. This would have involved a mix of personal and medical information on the enrolment forms. What the warrant was directed at was acquiring the same records for forensic and evidential purposes.
[62] With respect to disclosure of such medical records, the evidence before the High Court established that Ministry officials involved in the investigation, together with the police officers involved in the search, adopted extensive protocols to protect the confidential information in the patient records, while still meeting law enforcement requirements. The protocols dealt with security of the records, conducting a file analysis in secure meeting rooms, minimising the number of people present during the analysis, limiting the number of investigators involved, eliminating the relevant records and returning copied and original files to the appellant urgently by hand. There was no analysis of any of Dr Gill’s personal files and any documents protected by legal professional privilege were not viewed. These protocols were specifically referred to by the Judge.[36] The Judge commented that a retired general practitioner of lengthy experience employed by the Ministry was present during the execution of the search warrant and the subsequent examination of the files.
[36]At [44]–[45].
[63] On the question of the protocols, the Judge concluded:[37]
... the only area where the Court takes the view it may have been preferable for [the Ministry] to place additional material before the Issuing Officer – there is a certain degree of cogency in Mr Hooker’s submissions that [the Ministry’s] audit protocols should either have been dealt with in the affidavit or exhibited. That would have gone some considerable distance in meeting the Issuing Officer’s obvious concerns about doctor/patient confidentiality as to the way in which [the Ministry] intended to deal with seized material. It might, for example, have resulted in the warrant bearing a condition that execution was to be in accordance with those protocols.
But the absence of reference to the audit protocol in the warrant affidavit and warrant do not undermine the lawfulness of the application before the Issuing Officer. In fact, [the Ministry] dealt with the seized material in accordance with the protocol so exhibiting it to the warrant affidavit and inclusion of a condition to that effect would have made no difference. [The Ministry] executed the warrant as if it contained a condition that it act in accordance with its audit protocol.
[37]At [200]–[201].
[64] We are not satisfied that the appellants have demonstrated the Judge’s findings and conclusions were wrong. Plainly, the Registrar was well aware that the search warrant sought medical records, including confidential information concerning patients. The evidence before both the Registrar and the High Court confirmed this, as well as the detailed reasons why patient records and information were required for the investigation. While the Registrar did not have before him the details of the protocols to be followed by Ministry officials and police officers during the search and thereafter, we do not consider that omission to be fatal. The appropriateness or otherwise of imposing conditions on the search warrant in this case will be considered next. But the challenge based on the Registrar’s alleged lack of knowledge of the subject matter of the search must fail.
Third issue – reasonableness and the absence of conditions
[65] It is convenient to refer to the statutory provision governing search warrants. Section 198 of the Summary Proceedings Act relevantly provides:
Search warrants
(1)Any District Court Judge or Justice or Community Magistrate, or any Registrar (not being a constable), who, on an application in writing made on oath, is satisfied that there is reasonable ground for believing that there is in any building, aircraft, ship, carriage, vehicle, box, receptacle, premises, or place—
(a)Any thing upon or in respect of which any offence punishable by imprisonment has been or is suspected of having been committed; or
(b)Any thing which there is reasonable ground to believe will be evidence as to the commission of any such offence; or
(c)Any thing which there is reasonable ground to believe is intended to be used for the purpose of committing any such offence—
may issue a search warrant in the prescribed form.
…
[66] Guidelines relevant to granting of a warrant and the reasonableness thereof were considered by this Court in Television New Zealand v Attorney-General.[38] There, Cooke P stated in relation to warrants to search the premises of media organisations that:[39]
Both the grant and the execution of a warrant are discretionary. It is possible to state as follows some general principles or guidelines to be borne in mind when the reasonableness of granting a warrant or executing a search is under consideration; but in our respectful view the judgment under appeal cannot safely be affirmed or acted on in so far as it purports to set out what might be seen as close to a detailed code of rules.
[38]Footnote 24 above.
[39]At 647.
[67] The Court then discussed five guidelines relevant to determining the issue of reasonableness, none of which have particular application in this case. But there was a suggestion that normally the imposition of conditions on warrants should not be encouraged:[40]
... Beyond those guidelines we doubt whether the Court can usefully go. It may be that the issuing authority – who, in a media case, should preferably be a District Court Judge – can add conditions to a warrant; but normally it will be better to follow the prescribed form. ... On the whole, common sense and the spirit of New Zealand judgments is of course what should govern. Cases vary greatly and we do not think that the Court should attempt to prescribe specifics as distinct from general principles.
[40]At 648.
[68] The issue of reasonableness in respect of the issue of the warrant in this case ultimately comes down to the point regarding the absence of conditions attached to the warrant. All other grounds of challenge to the issue of the warrant have failed. We are satisfied that this ground must also fail. Our reasons are set out below.
[69] The appellants submitted that the Registrar ought to have imposed similar conditions on the warrant as are regularly imposed on search warrants for lawyers’ premises. Counsel noted that s 198A of the Summary Proceedings Act sets out a strict procedure that must be followed during execution of a search warrant at a lawyer’s office. But this section is silent as to warrants executed in all other situations, including doctors’ practices. This submission relied on an analogy between doctor-patient confidentiality and the common law legal professional privilege.
[70] This submission was rejected in the High Court as follows:[41]
[203] In New Zealand, doctor/patient confidentiality gives rise to no privilege against production (other than if it is later asserted and upheld in Court). Other countries may have elevated doctor/patient confidentiality to a right giving rise to privilege, but that has not been the New Zealand approach. Accordingly the Canadian and other authorities on which Mr Hooker relied have no relevance here. They bear on confidentiality, not privilege.
[204] On that issue, it must also be said that Mr Hooker’s submissions to the effect that medical records, broadly so called, can never be the subject of search warrants were patently too wide. Whilst authority in this country regularly supports the imposition of restrictive conditions on search warrants for locations such as lawyers’ offices where privileged material is likely to be encountered, privileged material is unlikely to be encountered in searches of doctors’ surgeries. Thus there is no basis for Issuing Officers to condition search warrants for doctors’ surgeries in a manner akin to conditions regularly imposed on search warrants for lawyers’ offices. To go as far as Mr Hooker submitted would, as Ms Adams said, effectively render doctors and their patients’ records immune from search even though there might be reasonable grounds for believing criminal conduct had occurred in relation to them.
[41]At [203]–[204].
[71] The appellants repeated such arguments on appeal but we are satisfied that the doctor-patient records sought in this case are not protected by a general privilege against compulsory disclosure in New Zealand. The common law does not recognise (and has never recognised) a privilege arising out of the desirability of maintaining confidentiality of information passing between a doctor and a patient. [42] Further, doctor-patient communications are not protected by a general evidential privilege under statute. It is true that s 59 of the Evidence Act grants a privilege in criminal proceedings to certain communications and information applicable to a narrow class of doctor-patient clinical interactions. But this section does not confer a general privilege applicable to communications arising in the course of the doctor‑client relationship. Moreover, any evidential privilege applicable under s 59 of the Evidence Act in criminal proceedings is unlikely to apply in a search warrant context.[43] For completeness we note that no other statute grants a privilege to information arising in the course of the doctor-patient relationship. Rather, information conveyed in the course of a doctor-patient relationship enjoys at best a qualified protection under statute.[44]
[42]Complaints Assessment Committee v Medical Practitioners Disciplinary Tribunal [2006] NZSC 48, [2006] 3 NZLR 577 at [13] and [98].
[43]R v Kissling at [25].
[44]For example, the Health Information Privacy Code 1994 promulgated under s 46 of the Privacy Act 1993 and the Health Act 1956, ss 22B, 22C and 22D.
[72] The appellants’ submission that conditions ought to have been imposed by the Registrar to protect confidential patient records and information is not supported by authority. Moreover, even in the context of recent law reform proposals, the Law Commission has recommended against extending the protection applicable to lawyers’ premises and the Search and Surveillance Bill[45] recently introduced into Parliament does not extend the solicitors’ premises principles to other contexts.
[45]Search and Surveillance Bill 2009 (45-1).
[73] We would emphasise that, at the investigative stage, the requirements of s 198 itself provide a balance between the public and individual interest in protecting confidential material, as opposed to the public interest in law enforcement. Therefore a search warrant may only be issued where the applicant has demonstrated on oath that there is a credible and reasonable ground for believing that an offence has been committed and that evidence of the offence will be obtained by a search of the premises. Accordingly, whether protection is needed for the confidentiality of patient records and information is best achieved by a careful assessment of whether the test in s 198 is met. A similar approach was applied by the Ontario Court of Appeal in R v Serendip Physiotherapy Clinic[46] when considering s 487 of the Canadian Criminal Code, the equivalent of s 198. There, Rosenberg J stated:
[34] ... The section is designed to mediate between the state interest in the investigation and the public and individual interest in documents and other materials in which there is a reasonable expectation of privacy. As a result of s 487, Parliament has permitted a judicial officer to authorize all manner of serious intrusions into the privacy of individuals. If the requirements of s 487 are met, the police can enter a private home and seize the most intimate of records such as diaries and personal papers. ... Using s 487, the police can obtain financial and other records from third parties, material about the individual’s lifestyle, intimate relationships and even personal opinions. They can gain access to a core of biographical and other information that is protected by s 8 of the Charter. But, it has never been suggested that a properly issued search warrant, meaning a search warrant that was obtained in accordance with the requirements set out in s 487, authorizes an unreasonable search and seizure.
[35] It follows that the requirements of s 487(1)(b), in particular the requirement that the officer provide information under oath of reasonable grounds to believe that the record sought “will” afford evidence with respect to the commission of an offence, strikes the proper balance even where the target of the search is the seizure of health records. By its terms, s 487 precludes granting of a search warrant for the purposes of a fishing expedition or on the basis of mere suspicion. Thus, where, as here, it is conceded that the medical records are not protected by privilege, the only mandatory prerequisites to the granting of the search warrant are those set out in that section. In the absence of a Constitutional challenge to the validity of s 487, I can see no principled basis for drawing a line around the types of records seized in this case and exempting them from the s 487 regime and I can find no legal basis for engrafting common law requirements on to a comprehensive statutory scheme.
...
[37] ... Thus, the threat to privacy and dignity of the individual represented by a search of premises containing medical records can serve as nothing more than a “backdrop against which the reasonableness of the search may be evaluated”. The primary obligation to balance the interest of the state and the interest of the public and the individual rests with the justice of the peace who has a discretion to refuse to issue the search warrant even where the minimum requirements set out in s 487 of the Criminal Code are met.
[38] In the proper exercise of his or her discretion the judicial officer can impose conditions where the police seek to seize records containing private medical information. For example, where the records likely contain private mental health information, the justice of the peace might well include special sealing conditions. However, a failure to include such conditions in the case of every warrant to search for and seize medical records does not affect the jurisdiction of the justice of the peace.
[46]R vSerendip Physiotherapy Clinic (2004) 245 DLR (4th) 88.
[74] A similar discretion exists under s 198 of the Summary Proceedings Act. The Registrar is therefore in a position to make an assessment involving the balancing of competing interests to determine whether patients’ medical information and records sought to be searched are required as evidence of possible criminal offending.
[75] We are satisfied that the High Court correctly concluded that the test in s 198 was met, particularly in relation to patient medical information and records. We consider that there was no unreasonableness or unlawfulness in the Registrar granting the warrant without conditions. The appellants have not succeeded in demonstrating that the Judge was wrong. Therefore the challenge must fail.
[76] Before leaving this issue, we deal briefly with a point of clarification regarding the method adopted by the Ministry post the search for protecting the confidentiality of patient information and records. We were referred to the details of the protocol applicable when the Ministry is carrying out an audit pursuant to s 22G of the Health Act 1956.[47] Counsel for the Ministry confirmed that this protocol is not the same process as that referred to in evidence before the High Court. The Ministry’s procedures for protecting confidential information were as summarised at [62] above. The same procedure or protocol will apply upon any resumption of the investigation. We are satisfied that compliance with such a protocol is appropriate and fulfils the same purpose as would a condition, had it been attached to the warrant.
Fourth issue – scope of the warrant
[47]As set out in the Ministry’s Primary Health Care Audit Protocol dated April 2004.
[77] The challenge under this head is whether the warrant was too wide. There is no dispute between the parties that an application under s 198 should not seek a warrant in terms that are too wide and allow for a fishing exercise.[48] But the appellants submitted that the findings of the High Court on the scope of the warrant were erroneous.
[48]See R v Williams at [223].
[78] The Judge held on this point as follows:
[207] The terms of the warrant were earlier cited. It appears to be appropriately limited to the “thing(s)” sought with each category founded in the affidavit and is also appropriately limited to “patients listed on the PHO population” of the plaintiffs since a nominated date. It seems unexceptionable.
[208] Assessing the warrant affidavit and the warrant, in terms of Williams and the earlier authorities mentioned, the Court’s view is that:
(a)The warrant and affidavit are as specific as circumstances allowed given the state of the investigation and Dr Gill’s rejection of the draft audit report.
(b)The papers accurately describe the offences and the time over which they were alleged to have occurred.
(c)The warrant and affidavit were specific as to the location of the search and the things likely to be discovered.
[79] Counsel for the Ministry submitted that, read as a whole, the affidavit supporting the application and the warrant were as specific as the circumstances allowed. Given the state of the investigation and Dr Gill’s rejection of the draft audit report, counsel supported the Judge’s findings that the terms of the warrant were appropriately limited to patients who had been enrolled on the PHO Register of Dr Gill’s practice on or after a nominated date. Accordingly the warrant did not authorise a roving or fishing search of the premises.
[80] Counsel referred to the various limiting features contained in the affidavit. These included details of events and analysis that had given Ministry officials good cause to suspect that Dr Gill had dishonestly enrolled patients on her PHO Register since her practice became part of the scheme on 1 October 2003. In particular Appendix A to the affidavit listed some 9,276 patients, who were enrolled on Dr Gill’s PHO Register over a three-year period, in relation to whom fraudulent claiming was suspected. Hence the warrant was worded as authorising the search and seizure of files (both hard copy and electronic) of patients listed on the PHO Register since 2003. This was the same group of people, namely the 9,276 patients as were referred to in Appendix A.
[81] Counsel for the Ministry accepted that the draft warrant presented to the Registrar could have had Appendix A attached to it. However, both the Registrar and the High Court were well aware of the offences alleged and the specific (and named) patient files sought. This information was appropriately captured in the warrant and the officers executing the warrant operated on the same basis. We are satisfied that the evidence established that the officers were searching for the files of patients listed on Appendix A and no others.
[82] Finally, on this issue, it is necessary to deal with the appellants’ submission that the warrant was too broad because there was no evidence that a crime had been committed in respect of the enrolment of each and every patient listed on Appendix A. This submission was not advanced before the High Court. Counsel for the Ministry met this contention by a submission that the warrant was sought in respect of patients listed on Appendix A because of trends identified in Dr Gill’s PHO Register enrolments by the audit. The investigation thus far had suggested that significant percentages of audited patients had been wrongly enrolled for three years funding by Dr Gill when in fact they were either casual or transitory patients. Such trends were confirmed by the post-audit investigation into the situation of individual patients. Sample cases were investigated by officials and the offending indicated grounded a reasonable belief of broader offending in relation to the enrolled patients named on Appendix A. Counsel for the Ministry submitted that this type of extrapolation is a common feature of fraud investigations.
[83] Counsel for the Ministry also submitted that applications under s 198 are a summary procedure to facilitate the detection and investigation of offending, rather than ultimate proof of particular offences. Thus there was no need to provide a specific basis for suspicion of a crime in relation to each patient listed on Appendix A. We agree. The method of investigation was appropriately applied by officials and the results of the sample cases appropriately included in Ms Rolls’ affidavit. We reject the submission by the appellants that the affidavit in support of the warrant was required to provide evidence of the commission of an offence in relation to each and every patient listed on Appendix A.
[84] We are satisfied that the appellants have not succeeded in showing that the Judge’s findings and conclusions referred to at [78] above were wrong. Moreover, the additional ground advanced on appeal has not been successful. This ground of challenge must therefore fail.
Fifth issue: was the warrant lawfully executed?
[85] The High Court found that the execution of the warrant by the police and Ministry officials was lawful, reasonable and did not breach s 21 of the New Zealand Bill of Rights Act 1990.[49] On appeal, the appellants advanced three grounds arising out of the execution of the warrant, each of which were decided in favour of the Ministry by the High Court. First, the appellants challenged the removal of all of the hardcopy patient records beyond those of the 9,276 patients listed in Appendix A, being the subject of the search warrant. Secondly, the appellants raised the issue of the level of police involvement in the search and seizure, both during and after execution of the warrant. Finally, the appellants challenged the copying of the entire computer hard drive by cloning.
[49]At [241] and [242].
[86] In response, counsel for the Ministry submitted that, in the context of application dealing with evidence, not every unreasonable search in breach of s 21 will result in the exclusion of the evidence concerned. Here the relief sought by the appellants included the return of all material seized as a result of the search. Counsel correctly submitted that in a criminal case the exclusion of the evidence is determined by the balancing exercise referred to in R v Shaheed[50] where a breach of the New Zealand Bill of Rights Act has occurred or more generally under s 30 of the Evidence Act. Counsel further submitted that, outside the context of admissibility of evidence, it was appropriate that any breaches of s 21 in the execution of a search warrant must be handled similarly. Thus they might not automatically result in the return of the material seized. The discretionary nature of remedies on judicial review supported this submission.
[50]R v Shaheed [2002] 2 NZLR 377 (CA).
[87] The High Court was cognisant of such factors and noted that exclusion of the evidence on the basis of what had occurred in executing the search warrant had not been sought by the appellants.[51] Thus some “tentative conclusions” only were offered. We do not propose to discuss this aspect of the judgment. Rather, we will deal with each of the three grounds raised by the appellants under this challenge, noting the Judge’s conclusion that “all the issues raised by the [appellants] concern the execution of the search warrant had been considered and decided in [the Ministry’s] favour.”[52]
Recent developments in the law
[51]At [240].
[52]At [241].
[88] The Law Commission has considered the law on seizure under warrant of items that may constitute evidence of an offence.[53] The Commission referred to the general law that an item may only be seized if there are reasonable grounds for belief that it is evidence of offending and such an assessment can be made on the spot. However, the Commission noted that where the officer conducting the search is confronted with a large volume of material this may create difficulties. The common law allows the material on the premises to be sifted[54] and bundles of documents reasonably believed to contain evidential material to be removed for sorting elsewhere, provided that sorting is carried out expeditiously and documents that are not of evidential value are promptly returned.[55] In Australia, officers conducting a search are empowered by statute to seize items for examination where it is significantly more practicable to do so. In the United Kingdom likewise where officers may remove items that they reasonably believe may contain or be evidence.
[53]Law Commission Search and Surveillance Powers (NZLC R97, 2007) at [6.86]-[6.95].
[54]R v Leeds Magistrates’ Court ex parte Dumbleton [1993] Crim LR 866 (QB).
[55]Citing Reynolds v Commissioner of Police of the Metropolis [1985] 1 QB 881 (CA).
[89] The Commission recommended the enactment of a similar power in New Zealand where “it is not reasonably practicable for their evidential status to be determined at the place searched”. Relevantly, the Commission invited consideration of the length of time and level of intrusiveness of the search in determining whether it is reasonably practicable to carry out the examination of the items on site. The Search and Surveillance Bill contains a provision[56] dealing with the circumstances in which items may be removed for examination or analysis to determine whether they constitute evidence of offending. The Select Committee interim report on the Bill states that that provision reflects the existing law.[57]
[56]Search and Surveillance Bill 2009 (45-1), cl 109.
[57]Search and Surveillance Bill 2009 (45-1) (interim select committee report) at 7.
[90] The Law Commission report also considered the power to take a forensic copy of a computer hard drive. It referred back to its recommendations[58] with regard to removal of items for examination and recorded that, given the nature of a computer hard drive, it would never be reasonably practical to search the computer hard drive without resorting to specialist methods such as forensic acquisition. This too necessitates the examination of the contents of the hard drive off site. Therefore, the Commission recommended:[59]
that the proposed power to remove an item for examination should be supplemented with powers authorising (i) the forensic copying of date either at the place where the search occurs or following removal of the data storage device for purposes of such examination and (ii) examination of the forensic copy.
[58]At [7.39]–[7.52].
[59] At [7.48].
Seizure of hard copies of patient files
[91] The appellants submitted that the “wholesale seizure” of all of the patient files at Dr Gill’s practice could not be justified on the grounds of impracticality or security. On this point, the High Court found in summary that Ministry officials could have better anticipated that they would find a substantial volume of hard copy files at the practice.[60] However, the Judge accepted that the decision of Ministry officials to remove the hard copy files rather than embark on a lengthy sifting exercise on site (with consequential major disruption or closure of Dr Gill’s practice) was the preferable choice between two difficult options. The course followed meant that the records were kept intact and secure. Moreover, the seized material was processed in accordance with the protocols discussed at [62] above and returned to Dr Gill as quickly as possible. Accordingly the Judge concluded that the appellants “criticism of the choice made and the way in which it was implemented must therefore be regarded as unjustifiable.”[61]
[60]At [233].
[61]At [233].
[92] The applicable legal principles may be succinctly stated. We agree with the submission by counsel for the Ministry that issues of excessive seizure are usually fact-intensive and wholly unsuited to judicial review.[62] Undoubtedly, however, issues of practicality will arise where the target of the search involves a professional office likely to house large amounts of relevant information on both computer and hard copy files. The topic of seizure of documents in bulk was considered by the English Court of Appeal in Reynolds v Commissioner of Police of the Metropolis.[63] There, Slade LJ referred to the relevant statutory provisions and concluded with the following propositions:[64]
(1)No matter how convenient this course may seem to be, a police officer acting under a search warrant issued under the Forgery Act 1913 is not entitled, without the consent of the owner, indiscriminately to remove from the premises each and every file, book, bundle or document he can lay his hands on, even if only for the purpose of temporary sorting. Before doing so, he must have regard to the nature and contents of the item in question.
(2)However, provided that he acts reasonably in so doing, he is entitled to remove from the premises files, books, bundles or documents which at the time of removal he reasonably believes contain (i) forged material, or (ii) material which might be of evidential value, as showing that the owner is implicated in some other crime.
(3)Any necessary sorting process in relation to all items removed (eg, those contained in files and bundles) should be carried out with reasonable expedition and those of them which are not found to fall within either of the two relevant categories should then be returned reasonably promptly to the owner.
[62]Citing Faisaltex.
[63]Reynolds at footnote 55 above.
[64]At 896.
[93] The topic of seizure of privileged material was later discussed by the English High Court in R v ChesterfieldJustices, ex p Bramley.[65] Both decisions were considered by this Court in A Firm of Solicitors v District Court at Auckland.[66] The Court observed:[67]
To the extent that the judgment of the majority in Bramley and the judgment of Slade LJ in Reynolds, conflict, we prefer the latter. The approach suggested by Slade LJ in Reynolds represents a reasonable balance between the competing interests of respect for privacy rights and effective law enforcement in cases involving large amounts of documentary material or computer data.
[65]R v Chesterfield Justices, ex p Bramley [2000] 1 QB 576 (QB) at [91]–[116].
[66]A Firm of Solicitors v District Court at Auckland [2006] 1 NZLR 586 (CA).
[67]At [97].
[94] When discussing Reynolds, this Court referred to the three propositions described by Slade LJ and observed that an officer executing a warrant could not remove from premises indiscriminately all material he could lay his hands on. O’Regan J put the position thus:[68]
Removing material even for the purpose of sifting off-site was a seizure. However, ... the officer executing the warrant was entitled to remove from the premises files, books, bundles or documents which, at the time of removal, he reasonably believed contained forged material or material which might otherwise be of evidential value. If that occurred, any subsequent sorting process had to be carried out expeditiously, with non-evidential material being returned promptly.
[68]At [91].
[95] The critical issue therefore turns on the reasonableness of the officers’ actions and the reasonableness of the belief that the documentary material removed from the premises contained information of evidential value to the investigation of offences of dishonest claiming of public funding. The affidavit evidence of Ms Rolls confirmed that it was the intention at the outset of the search to isolate and remove only files relating to patients listed on Appendix A. Importantly, the Ministry did not intend to, and did not in fact, remove hard copy files that related to Dr Gill’s personal matters. The same is true of folders labelled “Atarangi Trust” and many other Eastlight folders that did not bear labels indicating that they were patient files. In other words, there was at the time of the search (which extended from 2.15 pm to just before 10 pm) a preliminary sorting of documents outside the scope of the warrant.[69]
[69]As occurred in R v Leeds Magistrates’ Court ex parte Dumbleton [1993] Crim LR 866 (QB).
[96] But within the category of patient files, the volume of files and the way in which they were organised and labelled meant that it was not possible for the officials executing the warrant readily to identify and check the patient files to determine relevance. Ms Rolls estimated that it would have taken days or even weeks to have isolated only those patient files listed on Appendix A. This task would have caused the closure of Dr Gill’s practice. Leaving the documents at the practice unattended would have created major security and document integrity issues.
[97] Having regard to the nature, contents and volume of the items in question, the evidence shows these comprised a large number of hard copy files, in respect of which the coding system was unreliable. Many of the patient files were not properly or correctly labelled and were not filed by date. This caused difficulties for officials, for example in identifying files that preceded 1 October 2003, being the date specified in the warrant. But as Slade LJ emphasised, the officer concerned must act reasonably having regard to the nature of the items the subject of the warrant.
[98] We are satisfied that the officers executing the search warrant acted reasonably in dealing with the items in question. Further, we accept that they also believed at the time of removal that the hard copy patient files pertaining to the 9,276 files listed in Appendix A would contain material of evidential value.
[99] Similar conclusions were reached by the Judge, although he did not explicitly apply the propositions in Reynolds. Williams J found that:[70] “
the decision to remove the seized material rather than impound it on site must be seen as the preferable choice out of the two inconvenient options. It did ensure the records were kept intact, secure and able to be accessed only be a restricted team of officials experienced in dealing with such material.
[70]At [231].
However, we have made our assessment by applying the principles in Reynolds as endorsed by this Court in Re A Firm of Solicitors.
[100] In summary, we are satisfied that the approach of Ministry officials to the difficult task that confronted them at the practice was reasonable and justified. We agree with the submission for the Ministry that the steps followed, when searching for the 9,276 patient files listed in Appendix A within a much wider and undifferentiated group of files at Dr Gill’s practice, were a genuine attempt to identify the material covered by the warrant. It is clear from the evidence that obviously irrelevant material was left behind. Further, the task of sifting for relevant files that occurred offsite was conducted promptly, sensitively and in accordance with applicable protocols. Irrelevant material being promptly returned. Ms Rolls also deposed to the efforts taken to return files or copies of files that Dr Gill needed to continue her practice.
[101] This was not a general search. The appellant has not made good the challenge and this ground of appeal must therefore fail.
Police involvement in execution of warrant
[102] The next aspect of the challenge to the execution of the warrant concerns the level of police involvement in the search itself. The appellants have also raised a further point relating to the police involvement in the custody of the seized files following execution.
[103] The first challenge concerns the interpretation of s 198(3) of the Summary Proceedings Act which expressly authorises a constable executing a search warrant to use “such assistants as may be necessary”. In the High Court, the Judge preferred the evidence on behalf of the Ministry relating to the level of police involvement. The Judge found that this was a case where the constables executed the warrant as required by s 198, holding:
[216] In terms of the statute it was therefore necessary for the Police to be present and for Police to be in charge of execution of the search warrant even though the officers present would have known less about the investigation and what MoH required to seize than anybody else present. Their role could therefore only ever have been formal, but nonetheless they were required to supervise and participate in execution of the search warrant because the warrant was addressed to them.
[217] In formal terms, therefore, execution had to be supervised by Police as the legal responsibility for it remained theirs, but given the police officers lack of familiarity with the background to the matter, execution had to be a joint affair with MoH officers indicating what was to be seized and the police officers formally seizing it with their assistance. That was less than desirable, but must be regarded as satisfying s 198, given that the constables’ duties were non-delegable but their lack of knowledge was considerable.
[218] In order for the section to operate, the Police execution requirements of s 198 must be given a realistic interpretation in circumstances where the search warrant has actually been obtained by other agencies. Any other approach would render it near impossible for such agencies (other than those able to access statute-specific search warrants).
[219] Accordingly, the Court holds that the circumstances of execution of the search warrant in this case were that the execution was undertaken by constables, having the responsibility for executing the search warrant, but with the assistance of MoH officials under their command and direction.
[104] The appellants submitted that the Judge was wrong to prefer the evidence on behalf of the Ministry. Counsel was critical of the absence of an affidavit from the officer in charge or one of the police officers involved.
[105] We will deal briefly with the second part of the challenge before setting out our conclusions. The appellants submitted that there had been a breach of s 199(1) of the Summary Proceedings Act which requires that a constable retain custody of things seized pursuant to a warrant under s 198. Counsel argued that it was Ministry officials who packaged and took all files from the practice and were thereafter secured in a manner organised by Ministry officials, rather than the police. Here the storage and subsequent examination of the seized material was not under the direction and control of the police. This was a point that had not been pleaded by the appellants and was said to have been “only obliquely challenged” in the High Court.[71]
[71]At [221].
[106] Section 199 requires that anything seized under a search warrant shall be “retained under the custody of a constable.” This Court has applied a liberal interpretation to these words to ensure that the provision is workable. In Rural Timber Ltd v Hughes the Court stated:[72]
Section 199 of the Summary Proceedings Act requires things seized under s 198 to be retained under the custody of a constable, except while being used in evidence or in the custody of any Court. The evidence is that the police allowed Ministry of Transport personnel to have for examination materials that had been seized. As with the case of an expert asked to consider material for similar purposes, we regard the Ministry as holding the materials on behalf of and subject to the direction and control of the police, on which view there was no breach of s 199. “Custody” there must be interpreted reasonably liberally to make the section workable. (Emphasis added.)
[72]Rural Timber Ltd v Hughes [1989] 3 NZLR 178 (CA) at [185]–[186].
[107] Counsel for the Ministry submitted that, while the Ministry officials held the seized records, it was the police who delivered the documents into the Ministry’s possession by participating in a seizure and driving the cars containing the seized material. Counsel submitted that this gave workable affect to the requirement of s 199 that the police have custody but enabling Ministry officials to access the files and undertake the criminal investigation. Here it was possible for the police to have requested the files at any time but as they were not conducting the investigation there was no need for them to do so. Accordingly, counsel submitted that if the word “custody” in s 199 is interpreted liberally, the Ministry investigators acted as agents for the police.
[108] We are satisfied that the appellants have not shown that the High Court was wrong in its findings concerning the custody of the seized material. We consider that the requirement in s 198 that the search warrant be executed by a constable was met. On the facts he was lawfully assisted by Ministry investigators. While the records were placed in the custody of the Ministry, this was as lawful agent of the police. Importantly, one of the reasons why retained custody was retained on an agency basis was to ensure that the Ministry protocols were complied with to protect patient confidentiality. We conclude that the appellants’ submissions supporting this challenge are misconceived and the findings of the High Court were correct.
[109] Even if we had not been satisfied that the requirements of ss 198 and 199 had been met, we agree with the submission for the Ministry that this would not necessarily result in a finding of an unreasonable seizure under s 21 of the New Zealand Bill of Rights Act. Had it been necessary for us to decide the point we would have been in agreement with the conclusions of the Judge that any proportionality assessment would not have resulted in a finding of unlawfulness by virtue of the Ministry having possession of the seized files.[73]
[73]At [222].
[110] For the above reasons, we are satisfied that those aspects of this challenge concerning police involvement in the search and as to the custody of documents following seizure must fail.
Cloning the hard drive
[111] The appellants have challenged three aspects relating to the forensic acquisition (cloning) of the computer used in Dr Gill’s practice. The first point involved a suggestion that evidence had been placed before the Registrar as to why cloning of the computer was necessary. Secondly, the appellants submitted that the Ministry had no power to seize irrelevant material from the computer.
[112] Finally, the appellants challenge the Judge’s finding that the cloning of the computer hard drive could be justified by examining the Ministry’s conduct after the search. Counsel submitted that what was “best practice” was a matter for the Registrar to assess at the time of application and ought not to be assessed after the search has been executed.
[113] The High Court carefully considered the appellants’ criticisms of the cloning of the hard drive based on lack of security, indiscriminate copying, taking irrelevant material and denying access. The Judge concluded:[74]
... while, again, Dr Gill’s concerns are understandable and the intrusion on her practice, at least in the first days after execution of the search warrant, was considerable, the conclusion must be that the manner of cloning the [appellants’] hard drive and dealing with the information it contained – relevant and irrelevant to the investigation – was in accordance with best practice and was appropriate to preserve privacy and confidentiality concerns as far as possible.
[74]At [238].
[114] Counsel for the Ministry supported this conclusion. Counsel submitted that the cloning of the computer hard drive was within the scope of the warrant, was forensically necessary and was justified by the reasonable belief of officials that the computer contained the files of the 9,276 patients listed in Appendix A. Counsel noted also that the need to make a forensic acquisition of the practice computer hard drive was signalled in the application. Thus, the Registrar was plainly aware that the hard drive would be cloned.
[115] Computer hard drives inherently contain a mix of relevant and irrelevant material. This Court in A Firm of Solicitors accepted that a computer hard drive can be a “thing” relevant to an investigation and able to be searched and removed if necessary, provided there are reasonable grounds to believe that there is data stored on the particular hard drive that may be relevant to the investigation. Obviously such evidence cannot be extracted from the hard drive without the use of forensic investigative techniques and it is often not practicable to carry out those extraction measures on site[75]. As O’Regan J said:[76]
In our view, removal of a hard drive or a clone of a hard drive would be analogous with the removal of a book or very long document which contains a combination of relevant, irrelevant and privileged materials. The fact that there is privileged material or irrelevant material in the book should not prevent the officers conducting the search from removing the book. It cannot be contemplated that the search would involve reading the whole book on-site and tearing out the pages containing relevant and non-privileged information for removal.
[75]A Firm of Solicitors v District Court of Auckland at [106] and [115].
[76]At 114.
[116] We accept the submission of counsel for the Ministry that the courts have for a number of years understood and accepted the technical necessity of the practice of the cloning of computer hard drives. We also consider that the appellants’ submission that more information should have been placed before the Registrar to justify the cloning of the hard drive in this case is misconceived. We consider that the cloning of the hard drive at Dr Gill’s practice was reasonable and lawfully justified as a matter of best practice and in order to ensure that relevant patient records covered by the warrant were seized.
[117] The appellants have not shown that the conclusions of the Judge were wrong. We are satisfied that the cloning of the hard drive in this case did not result in Ministry officials obtaining access to information that was not within the scope of the warrant. This challenge must also fail.
Result
[118] All of the appellants’ challenges have failed. It follows that the appeal must be dismissed.
Costs
[119] At the conclusion of the appeal we heard submissions from the parties on costs. For the Ministry, Ms Adams sought increased costs. She referred us to observations of the Judge in his decision on costs,[77] and to the breadth of the challenge covering “every conceivable aspect of the manner in which the search warrant was obtained and executed”, meaning that the documents and arguments in the High Court covered a very wide range. She further noted that many of the points argued were raised prematurely. Ms Adams submitted that the position was even more egregious on appeal. She submitted that the appellants had again failed to define and refine the issues on appeal. She noted that the appellants had filed the case on appeal without consulting the respondents, in breach of r 39(1) of the Court of Appeal (Civil) Rules 2005. Finally, she submitted that the appellants had pursued points without any merit, something all the more serious given the significant impact that the litigation has had on the criminal investigation. Counsel emphasised that the impact of delay in conducting the investigation was notorious and potentially highly prejudicial to prosecution if charges were to be laid.
[77]Gill v The Attorney-General (Costs) HC Auckland CIV-2008-404-008247, 27 November 2009 at [17]–[21].
[120] In summary, counsel for the Ministry sought an uplift of 100 per cent by way of increased costs. This would result in a figure for costs which would see the Ministry only recover about one-third of its actual costs.
[121] In response, Mr Hooker submitted that while costs to any order would follow the event, costs should be awarded on the basis of a standard appeal on a band B basis. He rejected the appropriateness of a costs uplift, arguing that many of the issues raised by the appellants involved important issues of principle that needed to be determined on appeal. By way of example, he referred to the importance that Dr Gill saw in protecting the confidentiality of patient records. However, as we have observed at [18] and [19] above, this was not an appropriate case for judicial review proceedings. Had it been solely the intention of the appellants to ensure the confidentiality of patient records, a concise, focused statement of claim (probably on agreed facts) could have been filed. Alternatively, an agreement could have been reached with Ministry officials to ensure the protection of the confidentiality of patient records but on the basis that the criminal investigation could continue.
[122] We are satisfied that this is an appropriate case for an uplift. There will be an order that the respondents are entitled to costs for a standard appeal on a band B basis with an uplift of 100 per cent, plus the usual disbursements as fixed by the Registrar.
Next steps
[123] Now that the appeal has been disposed of it is appropriate that the investigation by the Ministry be re-activated without delay. This will require the release of documents currently in the custody of the Auckland High Court. We leave it to the Ministry to make an application in that Court for the release of the documents. Any such application should be treated with urgency.
Solicitors:
Vallant Hooker & Partners, Auckland for Appellants
Meredith Connell, Auckland for First Respondent
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