Hager v Attorney-General - [2018] NZHC 1138

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-Ā-TARA ROHE

CIV-2014-485-11344

[2018] NZHC 1138

UNDER the Judicature Amendment Act 1972, Part 30 of the High Court Rules, the Bill of Rights Act 1990, and the Search and Surveillance Act 2012

IN THE MATTER

of an application for judicial review

AND IN THE MATTER

of a search warrant issued by Judge

I M Malosi of the Manukau District Court on 30 September 2014

BETWEEN

NICOLAS ALFRED HAGER

Applicant

AND

HER MAJESTY’S ATTORNEY-GENERAL

First Respondent

THE NEW ZEALAND POLICE
Second Respondent

THE MANUKAU DISTRICT COURT

Third Respondent

CIV-2016-485-203

UNDER

the Bill of Rights Act 1990

IN THE MATTER

of production orders issued by unknown

issuing officers on 22 and 29 October 2014

BETWEEN

NICHOLAS ALFRED HAGER

Plaintiff

AND

HER MAJESTY’S ATTORNEY- GENERAL

First Defendant

THE NEW ZEALAND POLICE

Second Defendant

NICOLAS ALFRED HAGER v HER MAJESTY’S ATTORNEY-GENERAL [2018] NZHC 1138 [21 May 2018]

On the papers

Counsel:

F E Geiringer for Applicant/Plaintiff

B J Horsley, A B Goosen and Z A Fuhr for Respondents/Defendants

Judgment:

21 May 2018

JUDGMENT OF THOMAS J (CONFIDENTIALITY AND DISCOVERED DOCUMENTS)

[1]I refer to my judgment of 7 May 2018 in this matter.1

[2] As noted in that decision, the Crown consents to this Court reviewing any documents discovered which were not considered by Dobson J in his reviews of alleged confidentiality.2

[3] By memorandum dated 9 May 2018, the first and second respondents filed in hard copy the documents listed in Parts 3 and 4 of the following affidavits of documents:

(a)affidavit of documents sworn by Joseph Eng-Hoe Teo in response to application for further and better discovery on 10 July 2015;

(b)affidavit of documents sworn by Rachelle Clara Dunbar on behalf of the second defendant on 31 March 2017; and

(c)second defendant’s fifth affidavit of documents sworn on 21 February 2018.

1 Hager v Attorney-General [2018] NZHC 1017.
2 Hager v Attorney-General [2015] NZHC 262, (2015) 22 PRNZ 550 [Dobson J’s 24 February 2015 judgment]; and Hager v Attorney-General [2015] NZHC 1508] [Dobson J’s 2 July 2015 judgment].

[4] The first and second respondents claim confidentiality over the whole of a document if listed in Part 3 and partially if listed in Part 4. The withheld portions of Part 4 documents are identified with red lines.

Request for further commentary

[5] On 17 May 2018, I issued a Minute to the first and second respondents requiring further commentary in respect of an identified number of documents. This Minute was also sent to the applicant.

[6] I have now received the requested response from the first and second respondents. The response was not copied to the applicant on the basis it provided details in respect of confidential documents. I can, however, clarify the position for the applicant as follows:

(a)POL.00017.0199 – an unredacted copy of this document has now been supplied to the applicant as Exhibit SAB2 to the affidavit of Simon Beal of 15…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Hager v Attorney-General

Details

AGLC: Hager v Attorney-General [2018] NZHC 1138
Case: [2018] NZHC 1138
Decision Date: 21 May 2018

CaseChat Overview and Summary

The case of Hager v Attorney-General involved an application for judicial review by Nicolas Alfred Hager against the Attorney-General, the New Zealand Police, and the Manukau District Court. The application pertained to a search warrant issued on 30 September 2014 and production orders issued on 22 and 29 October 2014, both related to a search conducted at Hager's residence. The core legal issues revolved around the confidentiality and discovery of documents seized during the search, and whether certain documents should remain confidential under the criteria outlined in the Evidence Act 2006.

The court was tasked with reviewing the claimed confidentiality of the documents and determining whether the public interest in maintaining their secrecy outweighed the need for disclosure in the judicial review proceedings. This involved assessing the nature of the documents, the potential harm of their disclosure, and the relevance of the documents to the applicant's claims. The court's reasoning drew heavily on previous judgments, particularly those made by Dobson J in earlier proceedings, and applied the criteria set out in section 69 of the Evidence Act 2006. The court found that significant harm would likely result from the disclosure of certain documents, primarily due to the potential revelation of the identities of suspects, persons of interest, and confidential sources, as well as police investigative methods. The court also acknowledged the importance of maintaining the relationship between the police and informants, as well as the duty of candour in the context of search warrants.

Following the court's assessment, it was concluded that the police were entitled to a direction under section 69 of the Evidence Act 2006 that the contents of certain documents remain confidential. The court noted that many of the documents were irrelevant to the proceedings, which further supported the decision to maintain their confidentiality. The final orders confirmed that the documents in question would remain confidential, reflecting the balance between the public interest in secrecy and the requirements of the judicial review process.

Orders