Gill v Attorney-General sued on Behalf of the Ministry of Health HC Auckland CIV 2008-404-8247
[2009] NZHC 2566
•23 September 2009
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2008-404-008247
UNDER the Judicature Amendment Act 1972
IN THE MATTER OF a Warrant issued under section 198
Summary Proceedings Act 1957 and the execution of that Warrant and seizure of medical records of patients under that Warrant
BETWEEN JUDITH HEATHER GILL First Plaintiff
ANDQUEEN STREET HEALTH CARE (AUCKLAND METRO DOCTORS) LIMITED
Second Plaintiff
ANDTHE TRAVEL CLINICS (TRAVELCARE) NEW ZEALAND LIMITED
Third Plaintiff
ANDATTORNEY-GENERAL SUED ON BEHALF OF THE MINISTRY OF HEALTH
First Defendant
ANDTHE REGISTRAR AUCKLAND DISTRICT COURT
Second Defendant
Hearing: 15, 16, 17 and 20 July 2009
Counsel: R J Hooker and Ms Homes (on 15,16 and 20 July 2009)
R J Hooker and Ms Taylor (on 17 July 2009) for plaintiffs
A M Adams and H H Ifwersen for First DefendantNo appearance for Second Defendant (abiding decision of the Court) Judgment: 23 September 2009 at 5:00pm
RESERVED JUDGMENT OF HUGH WILLIAMS J
GILL AND ORS V ATTORNEY-GENERAL AND ANOR HC AK CIV-2008-404-008247 23 September 2009
This judgment was delivered by The Hon. Justice Hugh Williams on
23 September 2009 at 5:00pm
pursuant to Rule 11.5 of the High Court Rules
……………………………………………..
Registrar/Deputy Registrar
AAll causes of action brought by all plaintiffs for judicial review are dismissed.
B Costs are to be dealt with in accordance with paragraph [244] (b)
hereof.
CThere is to be a conference with counsel to consider suppression and the future of the seized documents.
TABLE OF CONTENTS
Paragraph
Introduction [1] Pleadings [6] Evidence on which search warrant granted [10] Evidence concerning execution of search warrant [32] Search warrants and execution: General Law [51] Submissions [66] Matters preliminary to decision [182] Discussion and Decision [189]
1. PHO contract [189]
2. Search Warrant application and affidavit [197]
2.Execution of the search warrant: [212] (i) Police involvement [214] (ii) Manner of execution of search warrant [223] (iii) Cloning of computer hard drive [234]
Result [243]
Introduction
[1] On 5 November 2008 a Deputy Registrar of the Auckland District Court (“Issuing Officer”) issued a search warrant under s 198 of the Summary Proceedings Act 1957 (“s 198”) saying the Issuing Officer was satisfied on an application in writing on oath:
THAT there is reasonable ground for believing that there is ... in Auckland
Metro Doctors and Travelcare ...
The following thing(s) namely:
• Consultation Records
• Financial Records
• Enrolment forms
• Registration forms• Computer hard drives containing electronic data
• Staff rosters
• Work diaries
• Wage records
in respect of patients listed on the PHO population of Auckland Metro
Doctors and Travelcare since 1st October 2003.
(upon or in respect of which an offence of “Dishonestly uses a document to obtain a pecuniary advantage”, Section 228(b) of the Crimes Act 1961, and “Obtaining by Deception” Section 240(1)(a) of the Crimes Act 1961, has been or is suspected of having been committed)
(which there is reasonable ground to believe will be evidence as to commission of an offence “Dishonestly uses a document to obtain a pecuniary advantage”, Section 228(b) of the Crimes Act 1961, and “Obtaining by Deception”, Section 240(1)(a) of the Crimes Act 1961.)
THIS IS TO AUTHORISE YOU at any time or times within one month from the date of this warrant to enter and search the said Auckland Metro Doctors and Travelcare ...
[2] The premises in respect of the search warrant was granted were those out of which the first plaintiff, Dr Gill, operates her general medical practice under the names of the second and third plaintiffs.
[3] The search warrant had been obtained by a Ms Rolls, a senior investigator with the Ministry of Health (“MoH”). On 11 November 2008 she, together with other officers of MoH and Police officers, executed the search warrant at Dr Gill’s
premises and, in the circumstances later described, seized many of the practice’s files and removed them to Ministry premises where an examination began.
[4] During the next month while the examination continued, files were returned to Dr Gill, or copies made available as required, to enable her to continue her practice. She objected and sought, ex parte, an interim injunction to lodge the remaining files with the Registrar of this Court. After discussions between the parties, the remaining files were, by consent, deposited with this Court on 11
December 2008. There they remain.
[5] The circumstances in which the search warrant was obtained and executed resulted in commencement of these judicial review proceedings on 12 December
2008.
Pleadings
[6] Dr Gill pleads that the affidavit supporting the search warrant application (“warrant affidavit”) omitted or mis-stated information in over a dozen ways. She claims the warrant was invalid as the Issuing Officer lacked jurisdiction under s 198 to “issue a search warrant for the search of confidential medical/patient records” or the Issuing Officer should have imposed conditions on the search and seizure of the confidential information. Secondly, Dr Gill pleads the Issuing Officer was in error of law in issuing the warrant because he was misled by omissions and misleading statements on the part of MoH in some 21 different ways. Thirdly, the warrant is pleaded to have been invalid because of its generality.
[7] MoH’s attitude is that the warrant affidavit and search warrant disclosed all material information and the warrant affidavit was augmented by discussions between the Issuing Officer and Ms Rolls immediately prior to the warrant being granted. It also pleads that, although not mentioned to the Issuing Officer, MoH had elaborate protocols in place to protect confidential information and executed and dealt with the files and their confidential information in accordance with those protocols.
[8] The plaintiffs assert execution of the warrant was unlawful or unreasonable or in breach of s 21 of the New Zealand Bill of Rights Act 1990 (“NZBoRA”). Some 25 aspects of execution of the search warrant are challenged.
[9] MoH asserts it acted properly in all respects in executing the warrant and in uplifting, caring for, and generally dealing with the files
Evidence on which search warrant granted
[10] The evidence on which the search warrant was granted all came from
Ms Rolls.
[11] Her 11-page 99-paragraph warrant affidavit began:
5.This investigation deals with patients that Dr Judith Heather GILL has enrolled on her Primary Health Organisation (PHO) register, affording her 3 years of District Health Board capitation funding that she was not entitled to claim. These patients should have been treated as:
5.1 Casual patients, and thus claimed for on a per consult (Fee
For Service) basis, or
5.2 Not eligible for subsidy and no claim made.
[12] Elaborating, she said in 2002 changes in Government health strategy led to the establishment of PHOs to deliver and co-ordinate primary health care services. The general intention of the strategy was for each member of the public to be an “enrolled patient” which meant they became a patient of a particular doctor who was a member of a PHO.
[13] PHOs receive subsidies from District Health Boards (“DHBs”) for health services on a capitated basis generally irrespective of the number of visits made by patients during any three year period and are extended by any subsequent consultation. An “enrolled patient” draws capitated funding even if they never visit a doctor by contrast with the previous scheme under which each visit was subsidized by the General Medical Subsidy.
[14] ProCare was a PHO contracted to the Auckland DHB. It sub-contracted with health providers including the plaintiffs (who became bound by the terms of the main contract) from 1 October 2003.
[15] The warrant affidavit said generally medical practices have three categories of patients:
a) “Enrolled patients” entitled to ongoing capitated funding once a quarterly register is submitted.
b)Those who consult doctors once only, which entitles the practice to claim a Fee For Service for each consultation.
c) Patients who consult doctors but are ineligible for subsidy payments.
[16] Ms Rolls’ warrant affidavit referred to the Enrolment Requirements for PHOs stemming from a document incorporating the PHO agreement setting out the process for a patient to become “enrolled”. The patient agrees to the enrolment process by signing the enrolment form (and is given an opportunity to transfer from the previous doctor). The affidavit quoted the PHO agreement’s Enrolment Requirements as:
23.2 The patient “Indicates to a provider that they intend to use that provider or PHO as their usual provider of essential primary care services on an ongoing basis”. The Requirements clarify “A person should not be invited to enrol on an enrolment register when they are not intending to continue to use that provider for ongoing essential primary care services”.
[17] Once the enrolment process is complete the doctor receives subsidy on a quarterly basis for three years unless the patient terminates enrolment. The sums are significant: a GMS subsidy for a 6-year-old male equated to $15-$20 but PHO capitation funding for the same child equals $93.54 p.a.; a 25-year-old woman without Community or High Use discounts attracted no funding under GMS but a capitation funding of up to $81.04 p.a. Both subsidies are in addition to any fee charged by the doctor to the patient.
[18] Ms Rolls said patients who are not enrolled may nevertheless be entitled to payment for each Fee For Service if:
a) They are enrolled elsewhere but are visitors and require medical treatment in the location they are visiting;
b) They elect not to become enrolled.
c)“When that patient is a temporary visitor from the United Kingdom and requires prompt treatment for a condition arising after their arrival in New Zealand (or become acutely exacerbated). Although Australian visitors are entitled to limited health care subsidies under reciprocal arrangements there is no eligibility for funding for universal general practitioner care”. (para 29.3)
d)“Any treatment to a visitor is of a transitory nature due to the patient’s short tenure in New Zealand and cannot be considered to be ‘ongoing essential primary care services’ as required by the Enrolment Requirements, and a practitioner should not then receive 3 years funding for someone who no longer remains in New Zealand.” (para 29.4).
[19] Ms Rolls’ said MoH commenced an investigation into the plaintiffs in August
2004 concerning their enrolments and “in particular the high number of patients enrolled with addresses listed ‘backpacker’”. That description indicated a possible higher than usual number of casual patients.
[20] On 15 April 2005 Dr Gill said it was “appropriate a claw-back take place as these people have clearly been identified as casuals who have inadvertently registered or enrolled” and on 11 July 2005 expressed concern about “ineligible people” receiving medical funding as a result of software coding. Ms Rolls’ affidavit (para 35) quoted Dr Gill saying on 14 May 2008 in a newspaper:
“Foreign visitors have been getting medicines and laboratory tests at bargain basement prices because the computer system used by GPs does not identify them as ‘non eligible’ for subsidies”.
[21] On 4 February 2008 the investigation became an audit of ProCare for the quarter 1 October-31 December 2007, Ms Rolls said, focusing on the plaintiffs. At
that time Dr Gill’s PHO population, that is those she said were enrolled with her practice, totalled 4360 patients, of whom 1343 were “contested”. A “contested” patient is one who appears on the roll of another practice. The audit also showed the plaintiffs claimed a high number of patients who “appeared to fall into the category of patients holding casual status due to their immigration and/or residential status”:
152 enrolment forms were examined, of which 57 described their position as temporary or transitory and were therefore likely to be “casual users”. Many were referred to Dr Gill by backpackers’ accommodation, hostels and travel agents.
[22] Ms Rolls’ warrant affidavit said the high number of “casual users” was evidenced by the enrolment forms used by Dr Gill on which a number had described themselves as “visitor” or “on vacation” or provided a departure date from New Zealand. Those patients, Ms Rolls said, were thought unlikely to require ongoing medical attention, but the forms Dr Gill used said the patient agreed that “I am now an enrolled patient of Auckland Metro Doctors and Travelcare” even though the MoH eligibility rules state “no claim for payment may be made for provision of services to a person who is not in New Zealand at the time of service provision”.
[23] One hundred patient forms concerning “uncontested” patients were requested to assess the number of casual users. Sixty-one were assessed as falling into that category. Dr Gill received $1305.42 for these patients and full year funding amounted to $5221.68. Extrapolated from Dr Gill’s entire “uncontested” population she would have received $17,238.60 for casual users.
[24] The warrant affidavit said “100 contested but superceded (sic.)” forms were examined and “74 assessed as probably being casual users”. Superseded patients are contested patients named by another practice using a more recent date of enrolment to obtain funding. Dr Gill received no funding for that group in the quarter under examination but was often paid in the preceding quarter or quarters.
[25] The warrant affidavit then dealt with vaccination patients. Dr Gill specializes in travel medicine and the affidavit said many patients were referred to her by their own doctor or by travel agents. Investigators spoke to a number of patients enrolled with the plaintiffs following vaccinations; all were said to have stated they only
visited Dr Gill once for travel vaccinations and never intended to be enrolled with her. Enrolment was never discussed with them and they were “unimpressed” she received funding for them. Some were submitted by Dr Gill in early 2008 following a claimed consultation on 10 March that year. The patients advised investigators no such visits took place.
[26] The warrant affidavit then contained a summary. It said the foregoing statistics demonstrated, to MoH, “her fraudulent intent in claiming ongoing subsidies for patients holding casual status” because “patients who should have been treated as casual users have instead been enrolled” and claimed for by Dr Gill. That assertion, the affidavit said, was supported not only by the earlier statistics but by the benefits received by Dr Gill and what MoH regarded as “deliberate misrepresentation” in her enrolment forms. The latter factor, the affidavit said, led to the view:
83.It is firmly believed that Dr Judith Heather GILL includes people in her enrolment register who have not been sufficiently informed of their options and had they been allowed to make an informed decision, they would have chosen not to be enrolled at her surgery.
[27] The warrant affidavit then turned to travel movements and exhibited a list of patients (“Appendix A”) “in respect of whom fraudulent activity due to ineligibility is suspected”. The list was 210 pages in extent and contained 9276 names of patients and dates of birth. The affidavit continued:
85.I have good cause to suspect Doctor Judith Heather GILL, the sole practitioner Auckland Metro Doctors and Travelcare has made false claims by including patients on her PHO patient registers, who are either ineligible or who have been mislead or insufficiently informed about enrolment Doctor Judith Heather GILL then submitting the registers for funding has thereby committed an offence against the Crimes Act 1961, being “Dishonestly uses a document to obtain a pecuniary advantage”, Sections 228(b) of the Crimes Act 1961, and “Obtaining by Deception”, Section
240(1)(a), which are punishable by imprisonment.
[28] After dealing with comparative exercises intended to be carried out between
MoH and Customs, the warrant affidavit concluded :
MEDICAL RECORDS SOUGHT
93.All computer and hard copies of patients’ records in respect of those listed in Appendix A in relation to Auckland Metro Doctors and
Travelcare, are required for evidential purposes. I believe analysis of these records will provide evidence of fraudulent claiming.
94.Details of patient consultations, date of service, clinical note details, appointment details, patient account details, and claim records by the Surgery are recorded on database software on the surgery’s computer system.
95.The data stored on the surgery’s computer hard drive is legally classed as a ‘document’. In most other investigations it would be possible to seize a computer hard drive but as the surgery is a going concern this extreme step would cause the business to close immediately.
96.Because of this it is necessary for Audit and Compliance to carry out an evidential acquisition of the data by copying the surgery’s computer drives so that the data can be analysed and enquiries completed to reveal the full extent of the fraudulent activity.
97.Enrolment and registration forms for patients on the surgery register are to be kept at the surgery for audit purposes. These forms are required to ascertain if they are an accurate record of patients enrolled and registered on the Patient register.
98.As the surgery employs a number of persons it is likely that they work at different times. It will be necessary to obtain staff rosters, work diaries and staff wage records in order to identify which persons would have been working at the times fraudulent activity was carried out.
99.A search warrant is required to search Auckland Metro Doctors and Travelcare, Level One, 125 Queen Street, Auckland, NEW ZEALAND for the purpose of locating and seizing records of patients referred to in Appendix “A”
[29] In addition, Ms Rolls said she took the oath in front of the Issuing Officer and that, before signing the warrant, there was a conversation between them. There were two versions in evidence. In her affidavit sworn in this proceeding (“review affidavit”) Ms Rolls said the Issuing Officer asked: “What do you mean by a
‘consultation record’?”. She responded that they were “notes made by medical staff during the consultation or included a file which may record particulars of a visit”. She told him MoH needed “to examine these notes to verify funding information” and gave him an example. She was also asked about the manner of execution of the warrant and told him: “I have an appointment with the doctor and that we would take all possible measures to ensure minimal or no patient disruption”.
[30] However, in what seems to have been a Job Sheet made at the time, she said the Issuing Officer was concerned about execution because he said: “This is a doctor’s surgery with patients”. Realising the Issuing Officer was asking about disruption to the practice, she explained about the appointment and that they intended to allow the practice to continue. That was followed with a question: “What do you mean by ‘consultation note’” which the file note said she answered about notes by medical staff but did not mention the files or the other material set out in the last paragraph.
[31] There was no evidence from the Deputy Registrar, the District Court abiding the decision of the Court.
Evidence concerning execution of search warrant
[32] Dr Gill’s affidavit said Ms Rolls came to her surgery on 11 November 2008 at the agreed 2:00pm. Dr Gill answered Ms Rolls’ questions and Ms Rolls then produced the search warrant.
[33] Patient files comprised both those on paper and in a filing system and cupboard, together with an archive area. Those held electronically were on her file server in the reception area.
[34] The paper files contained biographical details plus addresses, ethnicity and residency status and “other determinations of eligibility for public health funding” including a National Health Index (“NHI”) number and the dates of consultations. The files also contained clinical information as to the patient’s condition, diagnosis and treatment. Some contained letters to and reports from specialists together with x-ray, radiology, biopsy and pathology test reports. The files for patients who received public health funding also contained an enrolment form. Dr Gill said the biographical information was confidential and supplied to MoH electronically on a quarterly basis. The clinical information was confidential between patient and Dr Gill thus “any intrusion into confidential medical records will undermine confidence of the patient in consulting with the doctor”.
[35] She said MoH then proceeded to “remove all patient files from my medical clinic and made a clone copy of my computer”. No reading of files preceded their seizure. Police officers present “were not participating or supervising the search and seizure” and left the “complete conduct” of the search to MoH. She described the process as “ransack”. She said that at the conclusion of the search late that evening “they had removed every single patient file and record in their sights” and “copied numerous personal documents from the computer file server that had nothing to do with patients”.
[36] Her electronic files dated back to 1991 (paper files to 1998) and included patients ineligible for public health funding who had never been asked to sign an enrolment form (files marked “T C” plus a number). Patients eligible for public health funding were marked “L P” plus a number. She said:
“The Ministry removed all files from the clinic and archive room regardless of whether the patient had received public health funding (eligible) or not (non-eligible). The Ministry seized 5352 paper files and 9940 electronic files of non-eligible persons, they also seized 10,339 paper files and 14,285 electronic files of eligible person [sic].
At the time I swear this affidavit [10 December 2008] I believe that the Ministry still retains the paper files of approximate 4667 non-eligible persons and 7700 eligible persons. The Ministry also still retains 100% of all 24,225 electronic patient records and all personal data copies from the Clinic’s file server. Of the files returned they have made copies of parts of a number of files.
“The Ministry therefore retains in excess of 12,367 medical files containing clinical information it proposes to continue to examine and those files containing confidential doctor-patient clinical information including a large number of patient files for which no public funding has ever been claimed or paid.”
[37] Dr Gill’s evidence was largely repeated in an affidavit sworn some weeks later and was supported by affidavits from a Mr Pilkington, the managing director of the company that provided her information technology, and a Ms Bramwell, her receptionist.
[38] Mr Pilkington said Ms Rolls read a list of prepared questions including making a number of allegations of fraud. He tried to stop the meeting to enable
Dr Gill to obtain legal advice. Inquiries were made concerning recording the conversation. Both requests were refused.
[39] Two extra MoH officials arrived at 2:30pm and two police officers at
2:35pm. They identified themselves, read the search warrant and advised Dr Gill of her rights. At about 2:45pm Mr Pilkington assisted a MoH official to copy data from the file server but left the practice at 2:55pm.
[40] Ms Bramwell returned to the practice about 2:30pm. She said the police officers did not accompany Ms Rolls for the rest of the afternoon but sat or stood around the reception area. She was interviewed between 3:30-3:45pm, after which she gave MoH officers files of patients booked over the next fortnight. At about
3:55pm a doctor and another man arrived and two more MoH officials arrived later. Some files were taken from the practice by the time Ms Bramwell left at 5:33pm. Patients had been treated at the practice during the afternoon.
[41] Ms Rolls’ 80-page review affidavit said the warrant affidavit indicated a particular interest in Appendix A patients and MoH sought to limit the number of patients to the 9276 listed in that appendix so as to confine the scope of the investigation. Only the records of the 9276 patients in Appendix A and no others were sought. However, though the patients in Appendix A were enrolled with Dr Gill between 1 January 2005-31 August 2008 it was necessary for the search warrant to extend to the enrolment, clinical and other records for patients listed on the PHO register since 1 October 2003, the date Dr Gill joined ProCare, as “important consultations and records” relating to those patients could have occurred since that date.
[42] She accepted the files the subject of the search warrant contained confidential medical information between doctor and patient, but said this was relevant to MoH’s investigation because it would confirm (or otherwise) that a consultation actually occurred – something that did not appear on the PHO register – and would give the reason. The information in the files containing handwritten notes by Dr Gill bore on whether the patient was casual, evidence on which she expanded in her affidavit.
[43] Ms Rolls said Dr Gill was incorrect in suggesting it was possible to separate the clinical from the biographical information in a file because of the format of the enrolment form.
[44] MoH was very conscious of the need to protect doctor/patient confidentiality both generally and in relation to Dr Gill, but she said it had to be balanced against public interest in law enforcement and maintaining public confidence in the health system. MoH has gone to considerable lengths to preserve doctor/patient confidentiality in the 15-20 search warrants obtained by it in the past 10-15 years. Its standard practice – and the practice adopted in this case – was to have the files guarded overnight once Police and MoH officials removed them. They were held in secure storage and those files not relating to the 9276 patients sorted out and returned. Specific search criteria relating to patients under consideration (which identified 5534 patients of the 9276) were then analysed in a secure portion of MoH facilities with at least one dedicated staff member present at all times. Specially designated photocopiers were used. Only a handful of MoH investigators perused the files. Perusal was usually done outside normal office hours. Those MoH officials who had access were all experienced and attentive to confidential information. Those files whose spines showed they were irrelevant were not opened. The enrolment form for others was considered. Those files of no interest to the investigation were immediately returned and others (or copies) immediately returned on request. Any files the investigators came across which were personal to Dr Gill were left at the surgery or returned unread.
[45] Of importance, a retired general practitioner of lengthy experience employed by MoH was present during execution of the search warrant and examination of the files. If further investigation is to be undertaken, MoH will engage a medical practitioner to review documents requiring medical evaluation.
[46] Mr Unsted, a senior investigator with MoH’s Computer Forensic Section and the person responsible for the forensic examination of computer hard drives and databases for MoH, undertook that work in relation to Dr Gill’s computer. He arrived at the surgery about 2:40pm on 11 November 2008 when Police were already present. He agreed to clone the surgery hard disc drive on site after business ceased.
He was able to “burn” two CDs that evening but for technical reasons was unable to clone the hard drive until 12 November. After discussing the process with Mr Pilkington at 11:32pm (sic: a.m. ?), Mr Unsted commenced the cloning of the server at 2:50pm that day, using a special version of a computer program used for forensic purposes by enforcement agencies worldwide. It was impossible to separate out parts of the hard drive and accordingly it was completely cloned between 2:56pm and 1:18am on the morning of 13 November. The evidence was ambiguous – and Mr Unsted did not directly address the point – but it seems to be the case the surgery’s hard drive never left the premises.
[47] When Mr Unsted extracted the patient database at his own accommodation later, using another specific forensic cloning program and Appendix A, he linked the data to the 9276 patients and extracted it onto a further database for use with specific software, thus enabling the investigators to access data relating to the 9276 patients.
[48] Mr Unsted analysed the data for the 9276 patients by searching for those with only one transaction, those travelling on an overseas passport who had visited New Zealand once and stayed for less than 10 weeks, and those having a transaction on one of five dates given him by Ms Rolls. That produced the list of 5534 patients he gave Ms Rolls.
[49] In the whole of that process Mr Unsted acted in accordance with protocols designed to protect confidentiality and security of information obtained and procedures directed at sourcing only relevant information. He was the only person who used the data acquired (and has the only security device that allows viewing) and the storage media on which the data has been placed remains, secured, in his custody.
[50] His approach to the specific data concerning patients of interest in this case meant he had no need to view other patient details. He never attempted to view clinical notes. Though he cloned the entire server hard drive, he said he was obliged so to do to preserve the “forensic integrity and reliability of the data” as a “snapshot” of the plaintiffs’ computer at the time of cloning. It also showed alterations to the
data, author, timing and the date and number of prints. Mr Unsted said the copy of the hard disc drive was reliable, not corrupt, and that –
11.9Although all information on a hard drive or server is captured by a clone acquisition, it is not viewed because I focused my analysis on material relating to the 9276 patients that are the subject of the investigation. At no time did I view any information unrelated to the
9276 patients ...
...
12.2 It is necessary to copy all data contained on a hard drive to preserve the integrity of that data and to ensure that all possible evidence is obtained. To take an incomplete copy would compromise the reliability of the data because it would not capture all relevant information. Although taking a complete copy involves copying irrelevant and personal information, I am firmly of the view that there are sufficient safeguards in place to ensure that irrelevant information is not viewed.
Search warrants and execution : General Law
[51] Before embarking on a detailed consideration of the matter, it is helpful to set out the general law relating to applications for search warrants.
[52] The Search and Surveillance Bill currently before Parliament correctly sums up the current New Zealand position concerning search warrants in the following passage from its regulatory statement:
Status quo and problem
Core Police search powers are contained in statutes that are up to 50 years old; the law has thus become outdated and has been supplemented by case law to fill gaps in the legislation. Search powers have been granted to non- Police law enforcement agencies and have developed in a piecemeal manner scattered throughout various pieces of legislation, often in an incoherent or inconsistent manner. Further, the law has not kept pace with technology. The ability of criminals to use computers and other electronic devices to commit or facilitate illegal activity needs to be matched by appropriate legislative powers to enable law enforcement agencies to extract electronic information and use surveillance devices in the investigation of criminal activity. At the same time, reasonable checks and balances must be provided against inappropriate use of those powers.
[53] Part 5 of the Bill lists no fewer than 69 statutes containing search and seizure powers which require amendment with a number of other consequential amendments also required. That shows how widely matters of search and surveillance now
pervade our law. But the general search warrant provision has, for more than the last half century, been s 198 which relevantly reads:
198 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.
...
(2)Every search warrant shall be directed either to any constable by name or generally to every constable. Any search warrant may be executed by any constable.
...
(5)Every search warrant shall authorise any constable to seize any thing referred to in subsection (1) of this section.
...
(8)It is the duty of every one executing any search warrant to have it with him and to produce it if required to do so
and, relevantly:
199 Disposal of things seized
(1)Where any constable seizes any thing under section 198 of this Act, it shall be retained under the custody of a constable, except while it is being used in evidence or is in the custody of any Court, until it is disposed of under this section.
[54] The “prescribed form” is Form 50 to the Summary Proceedings Regulations
1958 which, naturally enough, follows the form of s 198. It is noteworthy that neither s 198 nor Form 50 expressly permit Issuing Officers to attach conditions to
search warrants although Reg 3 permits the scheduled forms to be used or “forms to the like effect” and permits additional information and variations to be included.
[55] Nonetheless, it has become well established over the years for Issuing Officers to include conditions in search warrants, particularly those relating to sensitive sites such as lawyers’ offices where privileged material is likely to be encountered.
[56] It was the submission of Mr Hooker, leading counsel for the plaintiffs, that conditions should have been imposed by the Issuing Officer in this case having regard to the likelihood the search would come across documents which involved doctor/patient confidentiality and might have come across privileged material.
[57] It is sufficient in a general review of the law on this topic to record the guidelines for search warrant applications discussed by the Court of Appeal in R v Williams [2007] 3 NZLR 207, 261-263 paras [209]-[222]. Comprehensive – and therefore lengthy – as it is (and significantly affected by the fact the challenge in that case was to information provided by an informer) it is nonetheless helpful to cite it in full to provide the background against which the search warrant and application in this case are to be judged:
[209] The matters set out in the application must provide the person issuing the warrant with evidence that meets the statutory criteria. In this section we concentrate on s 198 of the Summary Proceedings Act. In that context, the applicant must provide evidence that would afford the Issuing Officer with reasonable grounds to believe that there will be at or in a stated location an item (or items) that will be evidence of, that are intended to be used for or that have been used in, the commission of an offence.
[210] A warrant must be “as specific as the circumstances allow” (see Tranz Rail Ltd v Wellington District Court [2002] 3 NZLR 780 (CA) at para [41] and A Firm of Solicitors v District Court at Auckland [2006] 1 NZLR 586 (CA) at para [71]). It follows that the same must apply to the application that forms the basis upon which the warrant is issued.
[211] The application must therefore accurately describe the offence and the specific incident or incidents to which the search relates. It is not sufficient to say that among a large group of people, over a large period of time, an offence must have occurred (R v Sanders [1994] 3 NZLR 450 (CA) at p 461 and Auckland Medical Aid Trust v Taylor [1975] 1 NZLR 728 (CA) at pp
736, 740 and 749). A warrant will generally be found to be invalid where it fails adequately to specify the particular offence(s) to which the warrant
relates (R v Baptista (2005) 21 CRNZ 479 (CA) at para [24]).
[212] The application must also be limited to the places where the items are expected to be found (see R v Chapman (Court of Appeal, CA 241/02, 4
November 2002) and Baptista) and the things the application alleges will be found must be sufficiently defined. The search must be more than a fishing
expedition with nothing in particular in mind (see Sanders at p 461).
[213] Having “reasonable grounds to believe”, the test under s 198 of the Summary Proceedings Act, is a higher standard to meet than “reasonable ground to suspect”, the test under s 60(1) of the Arms Act for example (see R v Karalus (2005) 21 CRNZ 728 (CA) at para [27]). Belief means that there has to be an objective and credible basis for thinking that a search will turn up the item(s) named in the warrant (see Laugalis at pp 354 – 355), while suspicion means thinking that it is likely that a situation exists. The Issuing Officer must hold the view that the state of affairs the applicant officer is suggesting actually exists (see Sanders at p 461).
[214] While there is nothing to stop an applicant for a warrant expressing an opinion on whether there are reasonable grounds, the primary task is to set out the evidence for the Issuing Officer (see Sanders at p 460). In general, an applicant’s job is to provide all the facts that may be relevant to the Issuing Officer’s decision to issue the warrant (see Tranz Rail at para [21] and R v Butler (Court of Appeal, CA 439/00, 10 April 2001) at para [31]). It is important that the applicant does not present only selected facts, or leave out things that the applicant thinks may mean the Issuing Officer is less likely to issue the warrant (see Butler at para [4]). The applicant officer must give the Issuing Officer the full picture (see McColl).
[215] Applicants for a search warrant must state that they personally believe in the truth of the facts they are including in the application, or it must be obvious to someone reading the warrant that the applicant personally believes the facts to be true (see Sanders at p 460). The person applying for the warrant does not need to have personal knowledge of the facts set out in the application. However, where he or she does not have personal knowledge, the basis for believing in the truth of the facts must be set out. Where an applicant relies on information of which he or she does not have personal knowledge, the source of that information must be clearly stated so that the Issuing Officer may assess its reliability and cogency (see Baptista at para [9] and Sanders at p 460).
[216] There is often a particular difficulty with warrant applications based on information provided by informants. In such cases, there has to be some accompanying evidence in the application suggesting why the informant should be considered reliable and why the informant’s assertions are solidly grounded in more than mere suspicion, rumour or gossip ...
[217] The source and nature of the information itself may affect reliability. For example, an eyewitness account will be more reliable than information passed through multiple sources and then on to the police ...
[218] Where aspects of an informant’s story unrelated to the alleged offending, such as personal details about the offender, are able to be verified through other inquiries the informant will be considered more reliable. ...
[219] Particularly in cases where only general or brief information is provided by the informant, it must be supported by information from the
police about the source and the reliability of the informant in order to be considered reliable ...
[220] As well as the effect the external factors discussed above will have on reliability, the way in which the applicant records the information received from the informant will affect its reliability. ...
[221] There is a public interest in the protection of police informers. The Court will prevent the disclosure of identifying information to an accused where that is necessary to protect an informant’s identity and it will use a confidential filing system. The Issuing Officer must, however, be given all information held by the police when deciding whether to issue the warrant, no matter how sensitive the information might be (see Poelman at para [35]).
[222] As a general check, an applicant should scrutinise the grounds on which he or she applies for a warrant and consider, taking the role of devil’s advocate, whether the grounds provide a sufficient basis for a warrant to be issued (see Savelio at para [35]). Unless not practical, as a matter of best practice, applicants should also have the application checked by a superior officer or a legal adviser to ensure that it meets the statutory criteria for the issue of a warrant.
...
[224] In summary, applicants for warrants should:
(a) Accurately describe the offence they believe the search relates to.
(b)Explain what it is they expect to find and why, and where they expect to find it and why. Applicants should be as specific as possible.
(c)Make sure they describe the place where they expect to find the item accurately, such as the correct address of a house or registration number of a car.
(d) Include a description of all relevant information held or received (whether favourable or unfavourable) and all relevant inquiries made.
(e)When describing the information received, state the date when each piece of information was received, who received the information, and in what circumstances. Provide an assessment (with reasons) of the significance and reliability of the information.
(f)Describe the relevant inquiries that have been made. State the date on which each inquiry was made, who made it, how each inquiry was conducted, and the circumstances in which it was conducted. Explain (with reasons) the significance of those inquiries.
(g) Explain any delay between the last receipt of information and/or the last inquiry and the application for a warrant. If there has been a delay in applying for a warrant, make any necessary inquiries to ensure everything contained in the application is current and explain why that is so.
(h) If information relied on is from an informant, give as much information about the informant as possible, including the informant’s name, address and relationship to the suspect (if known) and any specific information on past reliability.
(i)Indicate in the application who received the information from the informant, when and in what circumstances.
(j) As far as possible, report information received from an informant in the informant’s own words. Consider attaching the original notes of the conversation to the application.
(k) Disclose all relevant information, even if confidential. Confidential information (for example, as to an informant’s identity) does not have to be disclosed to the suspect (even if later he or she is charged) but it must be disclosed in the warrant application. If applicants are concerned about inadvertent disclosure of confidential information, they should consider putting it in an attachment to the affidavit, sealed and marked confidential. Applicants should refer in the affidavit to the attachment and swear to their belief in its accuracy.
(l) Explain the reason for every expression of belief in the affidavit.
Applicants should never express a conclusion without saying why.
(m) Scrutinise the grounds on which they apply for a warrant and consider, taking the role of devil’s advocate, whether the application meets the statutory criteria.
(n)Where practical, refer the application to a superior officer or legal advisor for checking before it is submitted to the judicial officer.
[58] It is also pertinent to add that in R v Kissling [2009] 1 NZLR 641, 648 para [18] the Court of Appeal added:
[18] It is important to recognise that the case must be determined by reference to s 198 of the Summary Proceedings Act 1957. This point was emphasised recently in R v T (CA 615/07) [2008] NZCA 99:
“[9] Guidance as to best practice for those who apply for search warrants is provided in R v Williams [2007] 3 NZLR 207 (CA) at paras [208] – [225] (and particularly at para [224]). Obviously the greater the departure from best practice, the greater the risk of a warrant being set aside (see para [225]). But the courts must not lose sight of the fundamental principle that an application for a 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 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.”
[59] The Court of Appeal went on to warn that Williams “was intended to provide guidance to those seeking warrants rather than a test for determining whether warrants are valid, an issue which must be addressed by reference to s 198” and if omissions or errors are of “peripheral significance” they do not detract from the cogency of the balance if s 198 is satisfied, and that “it is important that defence counsel (and the Courts for that matter) do not engage in nitpicking exercises.”
[60] What those executing search warrants should do when confronted with large volumes of material and difficulty in sifting the relevant from the irrelevant was considered in A Firm of Solicitors (at 606-607 paras [91]-[97]) where the Court of Appeal said:
[91] Neither Reynolds [v Commissioner of Police of the Metropolis [1985] QB 881] nor Bramley [R v Chesterfield Justices, ex p Bramley [2000] QB 576] was cited to us, but they are relevant to the issues relating to irrelevant material and relevant but privileged material. In Reynolds at p 896, Slade LJ said that a warrant issued under the Forgery Act 1913 (UK) could not authorise the police officer executing it to remove from premises indiscriminately every book, file, bundle or document he could lay his hands on, even for the purpose of temporary sorting. Removing material even for the purpose of sifting off-site was a seizure. However, he said that the officer executing the warrant was entitled to remove from 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.
[92] In Bramley, Kennedy LJ said at p 588 that, where the police officer executing a search warrant believes material to be subject to privilege, he must not seize it. The officer will need to examine items in respect of which privilege is claimed or, where no claim is made, to inform himself so that he can determine whether he has reasonable grounds for believing it to be subject to privilege.
[93] Kennedy LJ cast doubt on the application of the decision in Reynolds to situations other than those arising under the specific legislation in issue in Reynolds. He accepted that it was a common-sense answer to the situation faced by an officer executing the warrant who is faced with a mountain of material to do a preliminary sift through the material and then take away a large part of the material to sort it out elsewhere. But he said that, unless the consent of the owner of the premises was obtained, this would not be authorised by a statutory provision which permits a person executing a warrant to seize items which he or she reasonably believes are evidence in relation to an offence under investigation or which need to be seized to prevent evidence being concealed, lost, altered or destroyed. He said at p 586 that, where the seizure involves items which do not fit within those categories (in particular, irrelevant material), then the person executing the
warrant would have no defence to an action for trespass to goods based on unjustified seizure of the material.
[94] Kennedy LJ distinguished Reynolds on the basis that the Forgery Act, which was the relevant legislation in the Reynolds case, provided that material that was seized would be taken to a Justice to be disposed of according to law, which meant there was a quick and effective remedy available if the officer executing the warrant went beyond its terms (at p 587). Turner J agreed with the judgment of Kennedy LJ. Jowitt J dissented.
[95] While Reynolds and Bramley dealt with different statutory provisions, we do not find the reason given in Bramley for distinguishing Reynolds particularly convincing. To the extent that the existence of a “quick and effective remedy” may be relevant, it could be argued that, at least in so far as privilege is concerned, there is a quick procedure in the SFO Act in s 24(5) for the resolution of disputes relating to privilege, which could be seen as having some features in common with that applying under the Forgery Act which applied in the Reynolds case. However, s 24(5) does not deal with the problem which would arise where the material seized includes irrelevant material.
[96] If the approach taken by the majority in Bramley were followed in this case, it could be argued that an SFO officer executing a search warrant issued under s 12 could never remove from the searched premises a computer hard drive containing data other than data which was relevant to the investigation, or privileged material. Nor would cloning of such a computer hard drive on site, followed by removal of the clone, ever be permitted. We do not consider that to be the law in New Zealand, at least in the context of the SFO Act. We did not hear argument about the position applying to searches made under other New Zealand statutes and express no view on those other statutory provisions.
[97] 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.
[61] The search warrant in this case authorized search of the plaintiffs’ computer hard drive. In fact it was cloned. The legality of such a process and the conditions to be applied were also considered in A Firm of Solicitors where the Court of Appeal, dealing with the search provisions of the Serious Fraud Office Act 1990, said (at 608-609 paras [100]-[115]:
[100] The cloning of a computer drive appears to be the exercise of the power under s 12(1)(e) to take a copy of a “document”, but this is permitted only if the person executing the warrant believes that the document (that is, the material on the hard drive) may be relevant to the investigation. If so, cloning would be permitted, as would the removal of the clone from the
premises at which the search occurs. The more common situation will be that the material on the hard drive will comprise a mixture of relevant and irrelevant material. In this case, it also contained privileged material. That raises more complex issues which we discuss below.
[101] The authority given by s 12 must be read subject to s 24(1), which says that nothing in the SFO Act requires a legal practitioner to disclose a privileged communication. The subsequent reference in s 24(5) to a situation where “any person refuses to disclose any information . . . on the ground that it is a privileged communication” implies that some opportunity will be given to a legal practitioner to determine whether privileged information will be disclosed.
[102] In the present case, the computer hard drive itself was removed, to allow for the cloning to take place off-site. This must have been an exercise of the power under s 12(1)(d) to remove a “thing”, which could occur only if the person executing the warrant believed on reasonable grounds that the computer hard drive may be relevant to the investigation or may be evidence of an offence involving serious or complex fraud.
[103] In many situations, the cloning of a computer hard drive, whether done on-site or off-site, will be the most effective and least inconvenient way of achieving the objects of the search, and the occupier of the premises being searched may in some cases be prepared to agree to that step being taken, subject to appropriate safeguards to prevent access to irrelevant material and to privileged material. Where the search involves a law firm, the firm would need to be careful not to waive the privilege which belonged to the clients of the firm, not to the firm itself. But, in principle, we think that it would be possible to agree to a cloning on site or the removal of the computer hard drive for cloning off-site, subject to appropriate conditions that protected privilege and ensured that the agreement to the cloning did not therefore amount to an improper purported waiver of privilege.
[104] There was no such agreement in this case, however, and it appears that none was sought. ...
[105] However, for the future we go on to consider what the situation would be in a case where the warrant was appropriately limited in scope. The question is: If a warrant was appropriately specific (which in this case would have required specification of the nature of the investigation and the documents sought in connection with that investigation), would the removal of the computer hard drive and subsequent cloning of it, subject to undertakings to protect privilege, have been possible without breaching s 12?
[106] We believe that there may be situations in which it can be said that the computer hard drive is a thing which is relevant to an investigation (and could therefore be removed under a s 10 warrant) if the circumstances are such that:
(a)there are reasonable grounds to believe that there is data stored on the hard drive which is, or may be, relevant to the investigation;
(b)this evidence cannot be extracted from the hard drive without the use of forensic investigative techniques;
(c)it is not practicable to carry out those extraction measures on-site without the risk of destruction of the evidence or the risk that relevant evidence will not be successfully extracted; and
(d) there is no practicable alternative to removing the hard drive itself for the purpose of undertaking the extraction measures off-site.
[107] If an issuing Judge is satisfied of all of those matters, we accept that a warrant could be issued which empowered the removal of the hard drive for subsequent cloning and extraction of relevant (and non-privileged) material. But such a warrant would have to be on such terms that it preserved the law firm’s right under s 24 of the SFO Act (and common law obligation) not to disclose any privileged communication. It would also need to have conditions. These would need to include a condition ensuring that material relating to other clients of the firm was not accessed, except where unavoidable to ascertain if the material is irrelevant. There would also need to be a condition ensuring that irrelevant material relating to other clients or to the firm itself, and material relating to the client under investigation which was not relevant to the investigation, was permanently deleted from the clone after extraction of the relevant, non-privileged, material, or returned to the law firm. The s 24(5) process would need to be invoked to deal with any disputes about privilege.
[108] In view of the intrusiveness of this action, the issuing Judge would need clear evidence that no practical alternative existed and would be obliged to ensure that the conditions subject to which these actions could be undertaken were adequate to achieve the above objectives. In that regard, conditions attaching to Anton Piller orders made in the civil jurisdiction of the High Court may provide some guidance, though there would obviously need to be adaptations to suit the circumstances of the case. It would be necessary to ensure that the cloning exercise, and the subsequent extraction of evidential material, was undertaken by an appropriately qualified and independent expert. It may be that the process should be supervised by the issuing Judge or a person appointed by the issuing Judge for the purpose.
[109] Similar considerations would apply to the cloning of a computer hard drive at the site of the search, and the subsequent removal of the clone.
[110] We recognise that removal of a computer hard drive for cloning, or removal of a clone made on site, would necessarily involve the removal of irrelevant and privileged material where there is a search of a law firm’s premises. Mr Harrison said this would involve “seizure” of privileged information, and that that was impermissible. The term “seizure” is not used in s 12 or s 24 of the SFO Act: s 12 refers to “removal”, though there seems to be no practical difference. The privilege protection in s 24(1) says a law practitioner is not required to “disclose” privileged information: the removal of privileged material subject to protections against disclosure does not, on the face of it, offend that provision.
[111] In our view, a warrant which permits removal of a computer hard drive for cloning (or removal of a clone made on site) on the basis outlined at para [106] above, but which has conditions preventing SFO officers having access to the hard drive or the clone until privilege claims can be made and, if necessary, resolved under s 24(5), does not infringe s 12 or s 24 of the SFO Act.
[112] Although the privileged information on the hard drive is “removed” from the law firm’s premises, the protection of privilege under s 24 is preserved: no “disclosure” occurs or is required. The SFO and the law firm can then engage in a process (under the supervision of the issuing Judge or his or her delegate, if necessary) to permit claims of privilege to be made and to avoid disclosure to the SFO officers of privileged material. That would preserve the protection in s 24 of the SFO Act, and ensure that the warrant did not abrogate legal professional privilege. If the issuing Judge needs to be involved, the effect would be that the ex parte application for the warrant would be converted to an inter partes proceeding on the way the conditions to the warrant should be complied with. Expert evidence could be adduced if necessary.
[113] The removal of the hard drive while it holds irrelevant material as well as evidential material would, in our view, be justified on the basis outlined by Slade LJ in Reynolds.
[114] 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 material. 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. Neither should it be contemplated that any claim of privilege not be respected. What is required is a warrant with conditions to deal with the situation appropriately.
[115] We are also satisfied that a search properly made on the basis we have outlined at para [106] above pursuant to a s 10 warrant with appropriate conditions (and in compliance with those conditions) would not be unreasonable in terms of s 21 of the Bill of Rights.
[62] Everyone is entitled to be “secure against unreasonable search or seizure” (s
21 NZBoRA). Section 21, as it affects execution of search warrants, was considered by William Young P and Glazebrook J in Williams (at 267-271 paras [226]-[252]) which relevantly reads:
Summary of principles of search and seizure dealt with in this judgment: Link between unlawfulness and unreasonableness
[226] Legality and reasonableness, although related, are distinct concepts. [227] A lawful search may be an unreasonable search where it is conducted
in an unreasonable manner (such as being conducted with excessive force).
[228] For the purpose of assessing the admissibility of evidence, an unlawful search or seizure will, however, be unreasonable and therefore in breach of s 21 of the Bill of Rights, except where:
(a) the error is minor or technical; and
(b) the error is not noticed before the search or seizure is undertaken.
[229] After [R v] Shaheed [[2002] 2 NZLR 377], the factors identified in [R v] Grayson and Taylor [[1997] 1 NZLR 399] (including urgency (see para [20] above)) will not be relevant to an assessment of reasonableness but most will move to the balancing phase under Shaheed, where they will be taken into account in assessing the seriousness of any breach.
...
When bad faith can render a warrant unlawful
[231] The existence of a collateral purpose (even if that purpose is dominant) does not render a search unreasonable where the search is otherwise lawful and reasonable and as long as the scope of the search covers only what is necessary to fulfil the lawful (authorising) purpose for the search ...
[232] Any collateral purpose must, however, be a legitimate law enforcement purpose. ...
[233] Further, if the lawful purpose is a mere ruse, then the search will be unreasonable. A conclusion that the purported purpose for a lawful search was a mere ruse should not be lightly drawn. ... It should be judged from the perspective of the operation as a whole.
...
Claiming a personal remedy for breach
...
[236] The main aim of s 21 of the Bill of Rights is to protect privacy interests. It is only where a person’s reasonable expectations of privacy have been breached that a personal remedy under the Bill of Rights (that is, exclusion of evidence) is available. The reasonable expectation of privacy enjoyed by a person is to be judged largely objectively. A broad view of privacy interests should be taken
[237] Everyone actually present at a search of private property has a reasonable expectation of privacy, with the likely exception of pure trespassers on a property for unlawful purposes such as burglars. ...
[238] The strength of the privacy interest is a factor to be taken into account under the Shaheed balancing test. This will depend both on the strength of the links of the person to the property involved and on the type of property being searched. For example, there is a greater privacy interest in a residential property as against a commercial one. ...
...
Effect of a breach on downstream evidence
[241] Where evidence is obtained in the course of a single transaction which includes an unreasonable search in breach of the Bill of Rights, there will be
a sufficient connection between the breach and the evidence for that evidence to be tainted by the breach.
[242] In cases where there is a gap in time between the breach and the gathering of the evidence, if that evidence would not have been obtained but for the breach, then the subsequent downstream evidence is tainted by the original breach. ...
[243] The strength of the links of the subsequent evidence to the breach is taken into account when assessing the seriousness of the breach under the Shaheed balancing test. ...
...
Conduct of the Shaheed balancing test
[245] The first step in the Shaheed balancing test is to assess the magnitude of the breach ... This involves assessing (in combination):
(a) the extent of the illegality ...
(b) the nature of the privacy interest considered objectively ... ; and
(c) any aggravating or mitigating factors. [246] Factors that can aggravate a breach include:
(a) a substantive breach of a specific statutory code ...
(b) conducting a search in an unreasonable manner ...; and
(c) police misconduct.
[247] The main factors mitigating the seriousness of a breach are:
(a) where the search takes place in a situation of urgency ...;
(b) where the strength of the connection between the person and the property searched or seized is weak ...
(c) where there has been attenuation of the link between the breach and the evidence ... ; and
(d) where there is inevitability of discovery, the onus being on the
Crown to prove this. ...
[248] Police good faith, the courtesy with which a search is conducted and the fact that the unlawful or unreasonable search takes place in the context of the investigation of serious criminal activity are all neutral factors ...
[249] The assessment of the seriousness of the breach should be conducted in a systematic manner. The extent of the illegality, the nature of the privacy interest and any aggravating and mitigating factors should be considered in turn and then in combination to reach an overall conclusion on seriousness.
...
[250] Having assessed the seriousness of the breach, the next stage is to balance the breach against the public interest factors pointing away from the exclusion of the evidence. These factors are considered in combination and not in isolation. ... They are:
a) The seriousness of the crime. A crime is considered serious if the starting point of any sentence is likely to be in the vicinity of four years or more or where there are elements of a threat to public safety involved, such as the carrying of a loaded weapon in public. The more serious the crime the more weight this factor is accorded. Crimes involving a serious incursion into the personal bodily integrity of the victim, particularly where there is a significant risk of there being further victims, are regarded as particularly serious.
...
(b) The nature and quality of the evidence. The more probative, reliable and crucial the evidence is, the more likely it is that the public interest in the conviction of criminals might outweigh the breach of rights. Conversely, where there is a significant issue of unreliability because of the breach, the balancing test would come down in favour of exclusion. ...
[251] The aim of the balancing exercise is to assess whether the remedy of exclusion of evidence is proportionate to the breach. The fact that there has been a breach of a quasi-constitutional right and the seriousness of the particular breach in question must be given due weight. Strict rules cannot be laid down. The exclusion of evidence under the Shaheed balancing test must be tailored to the circumstances of each case and it remains an evaluative decision for the individual Judge. ...
[252] Generalisations can be made, however. The reliability and probative value of the evidence will often outweigh a minor breach where the crime is of a serious nature. ... When the illegality or unreasonableness is serious, however, and supported by a strong privacy interest, then, in the absence of any mitigating factors such as attenuation of causation or a weak personal connection to the property searched or seized, any balancing exercise would normally lead to the exclusion of the evidence, even where the crime was serious. This result would be almost inevitable where the breach was deliberate, reckless or grossly careless on the part of the police. ...
[63] Finally, since the level of Police involvement in the execution of this search warrant was challenged, it is helpful to note the following passage from R v Sanders [1994] 3 NZLR 450, 473:
A related point is that s 198 appears to contemplate that some aspects of the executing officer’s role will be non-delegable. Only a constable has authority to execute a search warrant: s 198(2). Only a constable is authorised to enter premises and break open receptacles, although he or she may be accompanied by assistants: s 198(3). It is the constable who is authorised to seize things pursuant to the warrant: s 198(5). The word “assistants” implies that those accompanying the constable may also enter, search and seize, but the legal responsibility plainly remains with the constable to ensure that the methods and limitation stipulated in subss (3) to
(8) of s 198 are complied with. Only if the constable is personally present supervising the assistants could that responsibility be discharged. ...”
[64] A team of searchers must still be under the command of Police officers (R v Pickering (1996) 3 HRNZ 449, 452) and, given that s 199 may also be engaged here, it is helpful to refer to Rural Timber Limited v Hughes [1989] 3 NZLR 178,
186 where the Court of Appeal held that “custody” in s 199 “must be interpreted reasonably to make the section workable”.
[65] Other cases relied on by counsel or offering glosses on what has preceded will be discussed as required.
Submissions
[66] As will be seen, this application was argued more as if it was one to exclude from any subsequent litigation between these parties the information gained by the MoH rather than as if – as it was – an application for judicial review principally based on s 21 NZBoRA. Thus, Mr Hooker focused the early part of his submissions on confidentiality of the doctor/patient relationship, its recognition by the medical profession and its acknowledgement in such statutes as the Privacy Act 1993 and the Health Information Privacy Code Health and Disability Commissioner Act 1994. He noted its recognition by MoH and the privilege accorded aspects of doctor/patient confidentiality by s 69 of the Evidence Act 2006.
[67] Execution of the search warrant, he submitted, broke the doctor/patient confidentiality régime irretrievably. He relied on R v Dyment [1988] 2 SCR 417 where the Supreme Court of Canada held that once confidentiality is broken, restoration is impossible. He emphasised MoH seized all the plaintiff’s files, many of which contained highly sensitive personal information. Removal of the files to another location for sifting amounted, he submitted, to seizure in law relying on A Firm of Solicitors.
[68] He submitted the issues for determination included whether Ms Rolls’ affidavit misled the District Court into issuing the warrant by statements which were wrong, over-played, or omitted material facts.
[69] The second issue was whether MoH identified to the Issuing Officer that the files to be seized would contain private confidential information and whether the Court properly balanced the interests of patients against the public interest in criminal investigation. He questioned whether the Issuing Officer should have imposed conditions on the warrant to protect doctor/patient confidentiality or privilege, and whether the search and seizure was unlawful or unreasonable.
[70] It followed that a deal of the material put before the Court as exhibits to affidavits and the subject of significant submissions was largely (other than in respect of accuracy and suggested misleading omissions) focused on what lay behind Ms Rolls’ sworn statements, not on what was necessary to bring the Issuing Officer to the point where he might have properly regarded the requirements of s 198 as satisfied.
[71] Mr Hooker submitted the terms of the contract between the Auckland DHB and the PHO/ProCare/Dr Gill were “critical” and covered in detail which version was in force at the time, with what addenda and whether there was variation between MoH websites and explanatory memoranda and the contract itself. But what was put in issue by Ms Rolls’ affidavit was whether material at Dr Gill’s surgery might disclose that she had “enrolled” patients and received subsidies for them when they were ineligible for such subsidies.
[72] What must be assessed is the state of Ms Rolls’ knowledge at the time she swore her affidavit, not what was discovered on the search warrant being executed: the end cannot justify the means (Williams at para [66]; R v Javid CA319/06 [2007] NZCA 323, 11 June 2007). Mr Hooker submitted Ms Rolls’ obligation was to present all relevant information known to her, both for and against the application.
[73] Mr Hooker then submitted the nub of Ms Rolls’ affidavit was her “Summary” which set out the source of her belief Dr Gill acted fraudulently in claiming subsidies for patients who should have been treated as “casual users ... instead of being enrolled”. The correctness of that summary was dependent on a correct interpretation of the phrase “casual user”. Ms Rolls mis-stated the position. He said she “should have placed before the Court the relevant documents and allowed the
Court the opportunity to interpret the contract and assess whether Rolls’ interpretation ... was correct.” The Issuing Officer was required to “understand the terms of the contract and the entitlement of the doctor to receive capitation funding”.
[74] Mr Hooker’s submissions - extremely detailed and veering towards repetitiousness on the PHO contract point – were critical of Ms Rolls’ summary of the subsidy position as applying to Australian and British visitors, particularly as appearing in para 29.3, saying that in terms of the Schedule to the Health Benefits (Reciprocity with Australia) Act 1999 Art.3 it was sufficient if Dr Gill formed the opinion that they needed “immediate necessary medical treatment” as they were then entitled to subsidy as if New Zealanders. Ms Rolls mis-stated the position, a submission on which he elaborated by reference to versions of MoH websites.
[75] He was similarly critical of Ms Rolls’ position as to United Kingdom visitors. Under the Schedule to the Health Benefits (Reciprocity with the United Kingdom) Act 1982, their eligibility appears in Art.1 but he submitted there may be differences between the statutory entitlement and the MoH websites in the forms which were public both before and after the date of Ms Rolls’ affidavit . He submitted para 83 of her affidavit showed certainty of view but may have been inaccurate if the website was placed before the Issuing Officer, something he submitted also should have occurred so that the “Court could then have assessed the allegations against the Ministry’s own views” and “would not have accepted Ms Rolls’ categorical statement since they were contradicted by the MoH web pages at the time”.
[76] Mr Hooker further submitted Ms Rolls misrepresented the contract for subsidy and thus misled the Court. He submitted there was doubt as to which contract was applicable - though they were largely identical - and pointed to the definitions which he submitted were applicable. They relevantly read (in all versions of the contract put in evidence):
Casual Users means Eligible Persons not enrolled with you who received the Services from you.
Eligible Person means a person who is eligible for publicly-funded health services in accordance with the current Health and Disability Services Eligibility Direction published in the New Zealand Gazette.
while the “Eligibility Direction” reads :
“Eligibility” means the right to be considered for receipt of publicly-funded services, but does not equate to an entitlement to receive those services, and eligibility is assessed at the time services are sought (it may not operate retrospectively);
“Eligibility criteria” means the criteria set out in clause 4 of this direction, any of which, as a minimum, must be satisfied before any person may receive any publicly-funded service;
4. Eligibility Criteria
A person is eligible for publicly-funded services if he or she is in New Zealand at the time of seeking services and falls into any one or more of the following categories:
(7)In respect only of eligibility for services required to be provided under the agreement referred to in the Schedule to the Health Benefits (Reciprocity with Australia) Act 1986 or any of its successors, a resident of Australia who is in New Zealand on a temporary basis:
(8)In respect only of eligibility for services required to be provided under the agreement set out in the Schedule to the Health Benefits (Reciprocity with the United Kingdom) Act
1982 or any of its successors, a person recognised by the
Government of the United Kingdom as a national, who has his or her usual place of abode in the United Kingdom, and
is in New Zealand on a temporary basis.
[77] An “Enrolled Person” was defined as a
“person who is enrolled with you in accordance with you in accordance with the Referenced Document entitled “Enrolment Requirements for PHOs” as set out in cl 3.2 of Schedule A1 to Part A
and “Enrolled Patient” has the same meaning.
[78] Clause 3.2 of Schedule A1 of Part A of version 17 of the PHO contract lists three versions of documents and their purpose, including version 2.2 of the “Enrolment Requirements” for PHOs.
[79] It is convenient to note here that Ms Adams, leading counsel for MoH, said there were three categories of patients: those enrolled who were eligible for funding and entitled to capitated funding, casual users who were eligible for funding but not eligible to be enrolled on the PHO register, and ineligible patients who were not
eligible for any public funding. Schedules she prepared showing the contractual and funding arrangements will be discussed later.
[80] Mr Hooker also drew attention to another 16 clauses of the contract which he submitted were “vitally important” and analysed these at length. It is not considered necessary to review those submissions bar noting the definitions of “Community Services Card” and “High Need Groups” may possibly impact on a doctor’s subsidy rights vis-à-vis such patients.
[81] Schedule F.3 dealing with “General Medical Services provided to Casual Users” prescribes differing subsidy rates for differing categories of such users. Mr Hooker’s submitted those varying rates were “very much at the heart of the case” and that when Ms Rolls said United Kingdom or Australian visitors were entitled to some payment, she created the impression for the Issuing Officer that a system was still in place for Fee for Service despite the fact that no such system had been operative since 2002. He submitted that Casual Users only received a subsidy if they came within cl 3.5 of the Schedule – the table of differing subsidies – and prescribed no payment for Casual Users which would be considered to be a one-off payment as described by Ms Rolls. Casual Users had to be Enrolled to receive funding, hold a Community Services Card – not available to visitors from the United Kingdom or Australia under the reciprocal arrangements – or be an Eligible Child under 18.
Discussion and Decision
(1) PHO contract
[189] Various versions of the PHO contract were put in evidence and there was a dispute between counsel as to which was operative.
[190] All were complicated and detailed documents, about 100 pages in length, with that length significantly augmented by additional protocols, schedules, documents incorporated by reference and the like. In addition, Mr Hooker referred to MoH’s websites – in forms published both before and after Ms Rolls’ affidavit – dealing with medical funding, audit protocols, enrolment forms and the draft audit report.
[191] No version of the PHO contract was exhibited to the warrant affidavit. Instead, she summarized its provisions.
[192] A central theme of Mr Hooker’s submissions was that the PHO contract should have been exhibited to the warrant affidavit to enable the Issuing Officer to consider its terms – and the terms of the additional documents incorporated in it and the other documents he mentioned – against the phrasing of the affidavit. That, it was said, would have assisted the Issuing Officer to decide whether to issue the
search warrant and, if so, on what conditions. Secondly, it was submitted that, on close analysis, the summary of the PHO contract in the warrant affidavit was inaccurate in a number of ways and thus misled the Issuing Officer. That, it was suggested, was a factor which might have been material in the Officer’s consideration as to whether to issue the search warrant and on what terms.
[193] A significant portion of Mr Hooker’s address was also occupied with submissions concerning the nature of the provision of primary health services and the subsidies therefor; details of the way in which capitation funding proceeded; the manner in which the PHO and ProCare access it; and, in particular, the terms of eligibility of Australian and British visitors.
[194] Ms Adams’ stance concerning this question was previously noted.
[195] Because that issue formed so dominant a part of counsels’ submissions on this aspect of the matter, and because the Court has reached a firm view there was no obligation on Ms Rolls to exhibit the PHO contract and its incorporated documents to her warrant affidavit – still less most of the other documents - it will slightly shorten this judgment if that topic is dealt with at this juncture.
[196] The reasons for the Court taking the view that exhibiting the PHO contact and its annexures was unnecessary include what follows. It should, however, be noted that some of the material will need reviewing to assess whether Ms Rolls’ affidavit might have misled the Registrar through inaccuracy or failure to provide material detail:
a) As the Court of Appeal emphasised in Williams and Kissling, 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 or intended 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. All it requires is a statement on oath which contains sufficient detail to satisfy the Issuing Officer there is “reasonable ground for believing” that incriminating material may be found in a named place. In this case, submissions on the PHO contract question occupied more than half to two-thirds of the hearing time of a case which was expected to last two days and took nearly twice as long. That is no criticism of counsel but indicates that, had the PHO contract and its annexures been placed before the Issuing Officer, the result was likely to have been lengthy submissions, argument or discussion before the officer. 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 has intended to be a relatively simple process.
c) 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.
d)Discussions as to the standard of proof to be attained on search warrant applications risks distraction from the statutory requirement. Satisfaction that there is “reasonable ground for believing” is not an exacting standard – certainly nowhere near proof beyond reasonable doubt – and the material put before the Issuing Officer need only be sufficient to reach that standard for the warrant to issue. 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) It will seldom be impossible for counsel to suggest that more – or, sometimes, less – material should have been placed before the Issuing Officer or the supporting material should have been differently phrased but, as the Court of Appeal has consistently said, the primacy of s 198 and its requirements must be kept firmly in mind, first, by Issuing Officers and, secondly, by the Courts. 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. As the Court of Appeal said in Kissling, if the material supplied to the Issuing Officer is not misleading and selective and the warrant sought is not unduly wide, “there will be little or no scope for a successful challenge”. Also pertinent is the Court of Appeal’s further observation that “it is important that defence counsel (and the Courts for that matter) do not engage in nitpicking exercises”.
f) Issuing search warrants is intended therefore to be a relatively simple procedure whereby sworn evidence is provided and the Issuing Officer decides whether or not the affidavit leads him or her to be “satisfied that there is reasonable ground for believing” the nominated incriminating material is or may be in the named place. While supporting affidavits may, as here, exhibit material which show the breadth of the expected search, the 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.
g) It is finally noted that the often inconvenient necessity for search warrants to be directed to constables is abolished in the Search and Surveillance Bill (cl 101).
(2) Search warrant application and affidavit
[197] Although Ms Rolls could have exhibited the PHO contract and its annexures to her affidavit and although she could also have exhibited, amongst others, the draft audit report and the enrolment form. It has already been held that there was no necessity at law for her to do so provided her sworn summary of the issues those documents raised was accurate, neither including misleading material or omitting issues that should have been covered.
[198] It is therefore necessary to concentrate on the broad thrust of the material actually supplied, measured against the requirements of s 198.
[199] Before embarking on that exercise, however, it 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 (Williams, A Firm of Solicitors, 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 and Fitzpatrick 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.
[200] That said – and the only area where the Court takes the view it may have been preferable for MoH to place additional material before the Issuing Officer – there is a certain degree of cogency in Mr Hooker’s submissions that MoH’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 MoH 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.
[201] 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, MoH 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. MoH executed the warrant as if it contained a condition that it act in accordance with its audit protocol.
[202] Secondly, Ms Adams’ submissions were persuasive that a distinction requires to be drawn between doctor/patient confidentiality and privilege, with Parliament and the Courts resiling from the latter as far as search warrants and doctor/patient records are concerned. Of course, confidentiality is of significant importance as between doctors and patients (and others who are entitled to access such material) but the lack of privilege accorded such material is important, particularly when no litigation is in train between these parties (though the cautionary comments on that matter in Kissling suggest that should not be regarded as necessarily fatal).
[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.
[205] As an aside, it does not appear from the judgment in Jacks whether the practicality of requiring search warrant applications for lawyers’ offices to go before a District Court Judge was argued. Intuitively, the uncongenial hours and remote locations at which some search warrant applications are processed suggests not, but the situation is likely to be overcome when the Search and Surveillance Bill becomes law.
[206] Turning to the form of Ms Rolls’ affidavit, the following observations are apposite:
a) Para 5 accurately summarizes MoH’s concerns.
b)Paras 7-15 accurately outline the salient points of the PHO strategy and funding. It could have been more discursive, but it focused primarily on the notion of “enrolled patients” which, as the contract summarized in this judgment shows, is at the heart of the funding régime. It accurately summarizes the definition of “enrolled patients” and their entitlement to funding and to inclusion on the PHO register.
c) Paras 19-21 deal, sparely, with eligibility. The affidavit may have been incorrect in referring to the MoH website if, as Mr Hooker submitted, there are minor differences between the websites – both before and after the date of the affidavit – and the PHO contract. But that is of no account: paras 19 and 21 are correct.
d)Paras 22-24 are correct, including correctly quoting from the relevant Referenced Document, the “Enrolment Requirements for PHOs” forming part of the PHO contract.
e) Paras 24-29 accurately reflect the basis for part of MoH’s concern that
Dr Gill may have received unjustified public funding and the amount.
f) Para 29 (earlier quoted) is a spare recital of the position for British and Australian visitors. It omits the qualification that Australians must need “immediately necessary medical treatment” while here to be eligible for any public health funding but the way in which that matter is covered is sufficient for s 198 purposes. The passage in para
29 dealing with British visitors accurately reflects their entitlement.
g) Paras 30-37 deal with Dr Gill’s knowledge of the capitation funding scheme and PHO enrolments. That, and the audit section, paras 38-52 and paras 63-69 contain material which was drawn from the draft audit report. Mr Hooker submitted that the fact of it being an audit report and a draft should have been disclosed to the Issuing Officer but, given the statistics are accurate, the draft report obviously echoed MoH’s tentative views. As Dr Gill had effectively rejected the entire draft, nothing would have been gained by MoH saying it disagreed with Dr Gill’s response.
h)Paras 53-62 deal with difficulties MoH (and patients) experienced 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. Though the affidavit was erroneous in suggesting the patient could only sign the form once, that is immaterial.
i)Paras 70-76 deal with vaccination patients and accurately summarized the result of MoH’s interviews, the evidential statements and Dr Gill’s actions. The evidential statements might have been attached, but there was no need so to do in a sworn statement which accurately summarized them.
j)Paras 77-83 summarize the foregoing MoH view as to Dr Gill’s “fraudulent intent”, and records the reasons for MoH taking that view. The material comes together in para 83 (earlier cited). While Dr Gill of course takes strong exception to MoH’s views, the section under consideration appears accurately to summarize MoH’s views and the reasons therefor.
k)Paras 84-92 deal with records of travel movements. Most of this section details information held by New Zealand Customs Service to whom the warrant was also addressed but para 84 exhibited Appendix A. That incorporation of Appendix A might arguably have been better placed elsewhere in the affidavit, but its placement does not affect the warrant’s validity.
l)Finally, paras 93-99 earlier cited list the medical records, including “copying the surgery’s computer drives”. This is the section that led to the Issuing Officer’s inquiries. Mr Hooker sought to make something of what he suggested were differences between “medical records”, “patients records” and “consultation records” but when the focus was on the accuracy of Dr Gill’s recording and enrolling by contrast with patients’ eligibility for public funding, any such distinction could be no more than a nicety.
m)This last section might also, as earlier observed, have been improved by reference to MoH’s audit protocols but, for the reasons mentioned, their absence does not impact on the warrant’s validity.
[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.
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.
[210] More specifically, in terms of the first cause of action as pleaded (and the later largely identical particulars) all have been dealt with, apart from the pleading
that s 22G of the Health Act gave MoH access to all the documents it needed for its investigation. That is an inaccurate pleading of the reach of s 22G in light of Hobson.
[211] It follows that the plaintiffs’ first cause of action directed to the validity of the warrant fails, as does their third cause of action pleading the warrant was invalid due to its generality.
(3) Execution of Search Warrant:
[212] Broadly, there are three aspects of execution of the search warrant which require detailed consideration and which, in combination, founded the plaintiffs’ submission that the search warrant should be invalidated by the manner of its execution.
[213] They are the level of Police involvement, general facts relating to the execution of the search warrant and the specific facts relating to cloning the hard drive.
(i) Police Involvement
[214] The evidence of the level of Police involvement in execution of the search warrant was earlier summarized. Where MoH’s evidence differs from that of Dr Gill, Ms Pilkington and Ms Bramwell the Court prefers the more measured version given by Ms Rolls and Mr Unsted. Dr Gill was obviously upset at the time, and Mr Pilkington and Ms Bramwell’s evidence is less precise than that on behalf of the defendant. Mr Pilkington and Ms Bramwell were not there throughout. That said, it might have been helpful for affidavits to be filed by the police officers present.
[215] Search warrants issued under s 198 are required by statute to be addressed to constables. That is an anachronistic restriction not in many other statutes and has proved troublesome as the Search and Surveillance Bill regulatory statement says.
[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.
[220] However, once the files were removed from Dr Gill’s surgery, it could only be said with difficulty they remained in Police custody as required by s 199. There was no evidence of any Police involvement with anything to do with the files after they were removed. Even if, in terms of Rural Timber, “custody” as required by s 199 is interpreted reasonably to make the section workable, it would be straining the terms of the section to say the Police retained “custody” of the files after their removal. As mentioned, for nearly a month after their removal the files were held securely at MoH’s premises and, whilst technically the Police may have been able to
ask for them or gain access to them, the reality is that they were not in Police “custody” between the time of their removal from Dr Gill’s surgery and deposit in this Court.
[221] It has to be remembered that this is a claim for judicial review challenging the lawfulness of seizure of the plaintiffs’ records under s 21 of NZBoRA. Perhaps surprisingly in these circumstances given the detailed attack on MoH’s actions across a broad front, beyond pleading that the documents and records were retained by MoH and contained material beyond the ambit of the search warrant, the plaintiffs only obliquely challenged whether the files remained in Police “custody” after removal. They did not plead possible non-compliance with s 199. True, Mr Hooker challenged that aspect of the matter in his submissions but, as Ms Adams remarked, a number of issues in his submissions were not supported by evidence and pleadings. On this aspect, it must therefore be held the plaintiffs have not formally challenged the lawfulness under s 199 of MoH rather than the Police holding the plaintiffs’ records.
[222] That said, had the issue been pleaded, the Court would have held on the evidence to date that any required balancing test as to the unlawfulness of MoH having “custody” of the plaintiffs’ files was far outweighed by what occurred. MoH held the files in accordance with its detailed audit protocols. They are likely to have been at least as stringent in terms of physical custody as those which might have been applied by the Police. MoH restricted access to specific named experienced officers when all police officers would have had access to them in the Police Exhibits Store. MoH’s audit protocols are impressively detailed, particularly in their protection of confidentiality. If the files had been in Police custody, every request by the plaintiffs for access to the files would have necessitated referral to MoH. Further again, the importance of the evidence to MoH’s ongoing investigation – whether it implicates or exonerates Dr Gill – is such that it would far outweigh the fact that the plaintiffs’ records happened to be in the custody of the incorrect department of State for a time.
[223] The principal bases for the plaintiffs’ complaints concerning the manner of execution of the search warrant were not at the intrusive nature of the search warrant and its execution – those were inherent in the process once the warrant was granted – but in the wholesale removal of the plaintiffs’ records, including Dr Gill’s personal records and records well beyond those of the 9276 Appendix A patients.
[224] Ms Rolls said MoH officials when they embarked on the task were taken aback by the volume of material requiring to be assessed to locate the records in which they were primarily interested, both in terms of bulk and in terms of the time which preliminary assessment would require. MoH did not anticipate the magnitude of the task confronting them.
[225] MoH must be held to be open to criticism on that score.
[226] Even if the 9276 files had been readily able to be identified, they alone would plainly have been of considerable bulk. And, from their earlier involvement with the plaintiffs’ practice, including reviewing some of the files, MoH should have known that assessing all the plaintiffs’ records so as to locate those covered by the warrant would not be a brief or an easy task.
[227] However, even if the executing officials should have been more aware than they were of the bulk of the files to be assessed and the time it would take, nonetheless they were always going to be faced with a choice whether to leave the files at the plaintiffs’ premises whilst the assessment and sifting processes continued, or remove the files for the same purpose.
[228] Important factors in making that choice were that, once seized under the warrant, seizure and custody had to be continuous until the assessment process was complete and any consequent action taken, plus the fact it was necessary for MoH to ensure the records seized were secure and not able to be altered or tampered with in any way.
[229] Leaving the files at the plaintiffs’ premises and keeping them secure would have resulted in major disruption – even closure – of the plaintiffs’ practice for the lengthy period the assessment took. Security would have been a problem. Preventing Dr Gill and her staff having access to the material other than in secure circumstances would have posed an additional problem. Copying would have been a problem. Patients visiting the premises would hardly have been unaware that persons other than Dr Gill and her staff were on-site accessing practice records with the potential embarrassment and other difficulties that would result.
[230] Deciding to remove the seized records, house them securely and process them in accordance with MoH audit protocols had the major disadvantage of depriving the plaintiffs of their records, coupled with the necessity for them to request the copying of files in order to treat patients.
[231] However, while MoH is open to criticism for failing to anticipate the magnitude of the task to be undertaken, 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 by a restricted team of officials experienced in dealing with such material.
[232] Once the seized material had been removed, its processing in accordance with MoH’s audit protocols and compliance with the plaintiffs’ requests for files and information as quickly as possible must be seen as unexceptionable.
[233] Therefore, whilst the incursion into the plaintiffs’ practice of execution of the search warrant naturally created great concern for Dr Gill and her staff and, presumably, some inconvenience for her patients, the decision taken, on security grounds, to remove the records and process them in the way just mentioned must be seen as the better choice out of the two available. The plaintiffs’ criticism of the choice made and the way in which it was implemented must therefore be regarded as unjustifiable.
[234] The cloning of the practice’s hard drive was criticised for lack of security, for indiscriminate copying - including of irrelevant material - and as denying the plaintiffs access.
[235] As mentioned, there was some ambiguity in the evidence as to whether the plaintiffs’ hard drive ever left the premises. It seems likely it did not and therefore was available to the plaintiffs at all times except, perhaps, whilst the cloning process was taking place overnight. If this is correct, there seems nothing to that aspect of the plaintiffs’ criticisms on this score.
[236] Whether or not the hard drive was ever removed from the plaintiffs’ premises, it is common ground the entire contents of the hard drive were cloned and later assessed by Mr Unsted. It is similarly common ground that there was material on the hard drive which was irrelevant to MoH’s investigation and thus outside the ambit of the search warrant.
[237] However, Mr Unsted was an MoH official bound by its protocols. He cloned and assessed the contents of the hard drive using well-recognised and accepted techniques and computer programs used by enforcement agencies worldwide. He conducted the cloning with Mr Pilkington’s assistance and, as far as possible, in a manner sensitive to the plaintiffs’ needs. He ultimately extracted only data relating to the 9276 Appendix A patients and analysed that in accordance with Ms Rolls’ directions as to what was relevant to the investigation. For the reasons he detailed, it is accepted that it was impossible to clone only those parts of the plaintiffs’ hard drive which were relevant to the investigation: the clone had to be complete with irrelevant material later sifted out to obtain a “snapshot" of relevant material. Importantly, he complied with the safeguards required to ensure that irrelevant information was not viewed.
[238] In all those circumstances 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 plaintiffs’ 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.
[239] Finally, the Court observes that cloning the plaintiffs’ hard drive – especially if the hard drive never left their premises – is much more akin to MoH copying the plaintiffs’ material or taking a photograph of it than it is to “seizure”. Section 21 may therefore not have been engaged at all in this aspect of the matter.
[240] Since exclusion by invalidation of what occurred is not yet sought by the plaintiffs, strictly the guidelines in Williams and the balancing process mandated by Shaheed do not apply. Nonetheless, though the views which follow can only be based on the evidence so far given, the Court expresses its tentative conclusions as follows:
a) The search was legal other than in respect of the “custody” issue and any error in that regard, while not technical, does not avail the plaintiffs and has not been raised by them in their pleadings.
b)Execution of the search warrant was carried out in a way which, given the unenviable choices, was reasonable and not for a collateral purpose.
c) Whilst execution of the search warrant intruded upon the privacy interests of Dr Gill, it was to no greater an extent than was inherent in such an exercise.
d)In terms of Shaheed the only error was in the “custody” issue which was not of great magnitude for the reasons earlier outlined, though in breach of s 199. Apart from that, there are none of the aggravating or mitigating features listed in Shaheed.
e) The crimes MoH suspects Dr Gill of committing are serious and the evidence uplifted by the search is plainly material to MoH’s
investigation and, if it bears out their views, material to any subsequent prosecution. It may exonerate her.
f) Exclusion of the evidence obtained by the search warrant and its execution would, on the evidence as it currently stands, be out of all proportion to the way in which the warrant was obtained and executed.
[241] All the issues raised by the plaintiffs concerning execution of the search warrant have been considered and decided in MoH’s favour.
[242] Accordingly, the plaintiffs’ fourth cause of action based on the manner of the warrant’s execution is not made out and is dismissed.
Result
[243] The nub of the 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 plaintiffs’ practice records - was not unreasonable. The way in which the computer hard drive was cloned was unexceptionable. While the circumstances created 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.
[244] In the result:
a) All causes of action brought by all plaintiffs for judicial review are dismissed.
b)If the parties are unable to agree on all issues of costs, memoranda may be filed (maximum five pages) with that from the defendant
within 28 days of delivery of this judgment, and that from the plaintiffs within 35 days, with counsel certifying, if they consider it appropriate so to do, that the Court may determine all issues of costs without a further hearing.
c) Up to this stage orders have been made suppressing the names of the parties and all details of the proceedings. There will be a conference in chambers with counsel on 1 October 2009 at 9:00am to consider whether the orders for suppression should be extended and the appropriate action to take concerning the files lodged in Court.
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HUGH WILLIAMS J.
Solicitors:
Vallant Hooker & Partners, P O Box 47 088 Ponsonby Auckland 1144
Email: [email protected] / [email protected]z / [email protected]
Crown Solicitor, PO Box 2213 Auckland 1140
Email: Anna[email protected]
Hershl[email protected]
Case Officer: In[email protected]
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