Hager v Attorney-General
[2018] NZHC 1138
•21 May 2018
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 RespondentTHE 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 December 2017. It relates to information sought from PayPal.
(b)POL.00017.0200 – this document mirrors 0199 above. It was provided to Ms Wells in response to her Privacy Act 1993 request. The second defendant has no objection to discovering this document to the applicant on an open basis in these proceedings if Ms Wells consents.
(c)POL.00017.0212/POL.00017.0245 – confidentiality was claimed over these email chains on the basis they refer to investigative techniques and contain information in respect of another person of interest. I accept the claimed confidentiality in that regard and note the response clarified that none of the investigative steps discussed in the documents were taken in relation to the applicant.
(d)POL.97000.0403 – this spreadsheet was obtained as a result of the parent document which was partially disclosed in Part 4 of the 21 February 2018 affidavit (POL.97000.0402). This document has been disclosed to Ms Wells in response to her Privacy Act request. I
note the second defendant’s position that, even if confidentiality is waived, the document is irrelevant to the applicant’s claims.
Review of claimed confidentiality
[7] There are three categories of documents included in those I have reviewed. Documents marked “A” were withheld on the basis they refer to confidential investigative methods, or material which could prejudice the investigation or maintenance of law. Documents marked “B” were withheld on the basis of privacy and/or confidentiality issues for persons of interest, potential witnesses and/or confidential sources. Documents marked “C” had portions withheld on the grounds of irrelevance.
[8] I note there were several documents listed in Part 3 of the schedule to the 31 March 2017 affidavit which were originally withheld on the basis of confidentiality but have since been provided on an open basis to the applicant. In respect of one document originally withheld entirely, part of it has been provided to the applicant with only a portion still subject to claimed confidentiality.
[9] In my assessment, I have used the same approach taken by Dobson J as outlined in his 24 February 2015 judgment.3 That is, the claimed confidentiality was considered by reference to the criteria in s 69 of the Evidence Act 2006. I note the claim to confidentiality was made in the context of there being an aspect of public interest, as described in s 69(2). In particular, there is the need to avoid disclosure of the identity of persons of interest or suspects in a criminal investigation of this type to avoid unintended adverse inferences against persons named in this context.
[10] A further consideration is the harm which could ensue, both to the relationship between the police and those providing information in the present case and between the police and persons who may be inclined to provide information but only in reliance on the ability of the police to keep their identity secret.
3 Dobson J’s 24 February 2015 judgment, above n 2.
[11] Having reviewed the documents, and in terms of the public interest considerations under s 69(2), I am satisfied significant harm would be likely to result from the disclosure of the documents for which confidentiality is claimed. Similarly to Dobson J’s assessments in respect of the documents he reviewed, the greatest risk is that those documents would reveal the identity of suspects or persons of interest and the identity of sources of police information being used in the investigation. There is also the risk of harm arising from disclosure of police investigative methods.
[12] I also agree with the approach taken by Dobson J in his 24 February 2015 decision4 that, even if some individuals who may be either suspects or persons of interest in the police investigation are identifiable from the content of documents to which the applicant already has access or indeed might have identified themselves publicly, that is not an answer. The context under consideration is the basis upon which they engaged with the police and it is not for this Court to interfere with those arrangements.
[13] I am also mindful of the mandatory considerations set out in s 69(3) and adopt the same approach and reasoning as that of Dobson J. Added to the matters articulated in his decision, I have also taken into account the time which has elapsed since the communication was made or the information compiled or prepared, and the extent to which it has already been disclosed to others. Both of those factors are perhaps slightly different given the passage of time and intervening events from the position when Dobson J considered the matter. I also note the findings which have already been made in the first proceedings (CIV-2014-485-11344) that the police failed to discharge their duty of candour in applying for the search warrant and the warrant and subsequent search were fundamentally unlawful.5
[14] Having considered all the documents in the three affidavits, I am satisfied that the police are entitled to a direction under s 69 that the contents of the documents remain confidential in whole in respect of those in Part 3 and partially in respect of those in Part 4.
4 Dobson J’s 24 February 2015 judgment, above n 2, at [18].
5 Hager v Attorney-General [2015] NZHC 3268, at [149].
[15] I would also observe that many of the documents are simply irrelevant to the proceedings.
Thomas J
Solicitors:
Bennion Law, Wellington for Applicant/Plaintiff
Crown Law, Wellington for Respondents/Defendants
0
4
0