Graham v Commissioner of Police

[2025] NZHC 2501

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

CIV-2025-470-000099

[2025] NZHC 2501

IN THE MATTER

of an application under the Criminal Proceeds (Recovery) Act 2009

AND IN THE MATTER

of a search warrant issued pursuant to section 102 of the Criminal Proceeds (Recovery) Act 2009

BETWEEN

ANDREW GRAHAM

Applicant

AND

THE COMMISSIONER OF POLICE

Respondent

Hearing:	5 August 2025
Appearances:	Mr Graham, Applicant in person R Jenson for the Respondent
Judgment:	28 August 2025

JUDGMENT OF HARVEY J

This judgment is delivered by me on 28 August 2025 at 3 pm pursuant to r 11.5 of the High Court Rules.

…………………………………………….

Deputy Registrar

Solicitors:

Pollett Legal Ltd, Office of the Crown Solicitor, Tauranga

Party:

Mr Graham, Applicant

GRAHAM v THE COMMISSIONER OF POLICE [2025] NZHC 2501 [28 August 2025]

Introduction

[1]                 On 12 June 2025, the Police executed a search warrant obtained under s 102 of the Criminal Proceeds (Recovery) Act 2009 (CPRA) at Andrew Graham’s Pāpāmoa address. In summary, the warrant authorised the Police to search and seize:

(a)all electronic devices, computer systems and electronic data storage systems believed to contain evidence of any person’s interest in, or control of, any currency and property that is tainted;

(b)the intangible material, data and information contained within such devices believed to contained evidence of any person’s interest in, or control of, any currency and property that is tainted; and

(c)any documentation relating to any communications and exchange of money between Mr Graham and three named individuals that establish the nature and extent of any person’s interest in, or control of, any currency and property that is tainted.

[2]The warrant stated that the above property was subject to a restraining order.

[3]                 Mr Graham seeks orders directing disclosure of the search warrant application, any affidavit(s) filed in support and any reasons, minutes or written record of the decision issued by the Judge who granted the warrant. He relies on four principal grounds for his application. First, he is directly affected by the search warrant executed at his home. Second, disclosure is necessary to understand the legal and evidential basis for the warrant. Third, the documents are required to assess whether there are grounds to bring an application for judicial review. Fourth, the interests of justice and principles of natural justice require disclosure to the affected party.

[4]                 The Crown opposes the application submitting that there is no legal basis to order disclosure or discovery of the documents, and that discovery is unnecessary for Mr Graham to formulate his claim for judicial review.

[5]                 On 5 August 2025, a case management conference was held with counsel for the Commissioner and Mr Graham. I directed that this Court’s decision in Davis v Commissioner of Inland Revenue be circulated to the parties and that they provide submissions by 8 and 15 August 2025 respectively.1 I have now received and considered those submissions.

Discussion

[6]                 Both parties appear to agree that this Court has inherent jurisdiction to order the disclosure or discovery of an application and related affidavits for a search warrant.2 Even so, Mr Jenson for the Commissioner emphasised that this jurisdiction is to be exercised rarely. Similar to the circumstances in Davis, he also submitted that an order for discovery is not warranted in this case as it falls within the civil regime of the CPRA. Furthermore, counsel contended it is not for this Court to intervene in Judge Mason’s decision to issue the warrant, in the absence of any right of appeal, merely to satisfy the unease of the person under investigation.3

[7]                 On the other hand, Mr Graham argued that his case was materially different to the circumstances of Davis because of the “facial defect” in the warrant — namely the fact that, to the best of his knowledge, there was no restraining order over his property. He submitted that this defect raises questions as to the warrant’s lawfulness and about whether Judge Mason was misinformed or misled. Mr Graham contended that this legal error warrants judicial scrutiny.

[8]                 It appears that the Commissioner accepts  there was  no  restraining  order.  Mr Jenson stated that “Mr Graham appears to have identified an erroneous reference in the search warrant”. However, this does not necessarily mean the search warrant is invalid. Notably, the property identified in the warrant may still fall under s 102(2)(b) as it is purportedly “evidence establishing the nature and extent of any person’s interest in or control over property that is tainted property”.

1     Davis v Commissioner of Inland Revenue HC Auckland CRI-2004-404-000256, 29 June 2004.

2     See Davis, above n 1.

3     Hawkins v Sturt (1990) 5 NZCLC 66,606 at 66,610.

[9]                 Moreover, I accept Mr Jenson’s argument that this apparent error in the warrant provides Mr Graham with material to support his judicial review claim, following which a Judge can determine the appropriate scope of discovery. Ultimately, I agree with Thomas J that absent a right of appeal, it would ill-behove this Court to intervene with Judge Mason’s warrant decision for the purpose of satisfying Mr Graham’s unease.4 If Mr Graham considers that the warrant deserves judicial scrutiny due to its apparent defect, the appropriate mechanism is for Mr Graham to file a claim for judicial review. This will also allow him to ensure his right under s 21 of the New Zealand Bill of Rights Act 1990 has not been breached.

[10]              For completeness, I also note that Mr Graham submitted that the search warrant in Davis was obtained under the Tax Administration Act 1994 which permitted broad investigatory powers that included access to documents regardless of whether a prosecution ensued. He contended this was in contrast to a warrant under s 102 of the CPRA which narrowly requires the relevant property to be subject to a restraining order or to be tainted. However, this submission is incorrect. A search warrant under s 102 can also be granted in respect of property or evidence which is:

(b)   evidence establishing the nature and extent of any person’s interest in or control over property that is tainted property; or

(c)  evidence establishing the nature and extent of the interest in or control over property of any person who has unlawfully benefited from significant criminal activity …

[11]              Much like how the broad search and seizure powers under the Tax Administration Act were not limited to the purpose of criminal prosecution but could also be exercised for the purpose of collecting tax,5 the broad search and seizure powers under the CPRA are not limited to criminal prosecutions:6

Parliament has recognised that the police need wider powers in order to obtain evidence relevant to the civil forfeiture regime than they will require when investigating suspected criminal activity.

[12]This suggests that the reasoning in Davis applies to the present case.

4     Hawkins v Sturt, above n 3, at 66,610.

5     Davis, above n 1, at [8].

6     Commissioner of Police v de Wys [2013] NZHC 2728 at [21].

[13]              Mr Graham also submitted that s 67(7) of the Search and Surveillance Act 2012 requires the return of search warrant materials once no longer needed. While this legislation does not govern CPRA warrants, Mr Graham emphasised that it highlights the policy that persons affected by such warrants are entitled to see what was put before the Judge. However, the section cited by Mr Graham does not appear to exist.7 He may have been referring to s 150 which governs the return of seized things.

[14]              Section 112 of the CPRA also governs the return of seized property. However, there is a carveout under s 103 of the CPRA for documents or other material believed to be evidence establishing the nature of any person’s interest in or control over “… any other property.” This would seemingly apply to the documents and intangible material, data and information seized in the present case to ascertain the nature and extent of any person’s interest in, or control of, any currency and property that is tainted. In any case, s 112 relates to the property seized by the Police not to the materials relied upon to obtain their search warrant. In which case, it does not support Mr Graham’s current application.

[15]              Finally, I note Mr Jenson’s submission that Mr Graham has not mentioned any urgent need for the information he seeks. In the absence of pressing circumstances, I do not consider this to be one of those rare cases referred to in Davis where discovery might be warranted. Rather, I agree with Mr Jenson that the Commissioner should be permitted to conclude his inquiry. If Mr Graham takes issue with the warrant, then as noted above his appropriate recourse is to pursue his claim for judicial review.

Decision

[16]The application is dismissed.

Harvey J

7     A number of the cases cited by Mr Graham did not appear to exist or the Court was otherwise unable to locate them.