Hager v Attorney-General

[2018] NZHC 1017

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 1017

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

INTHE MATTER             of production orders issued by unknown issuing officers on 22 and 29 October 2014

BETWEEN  NICHOLAS ALFRED HAGER Plaintiff

ANDHER MAJESTY’S ATTORNEY- GENERAL

First Defendant

THE NEW ZEALAND POLICE Second Defendant

NICOLAS ALFRED HAGER v HER MAJESTY’S ATTORNEY-GENERAL [2018] NZHC 1017 [10 May 2018]

Hearing:	7 May 2018
Counsel:	F E Geiringer for Applicant/Plaintiff B J Horsley and Z A Fuhr for Respondents/Defendants
Judgment:	10 May 2018

JUDGMENT OF THOMAS J (DISCOVERY AND DISCLOSURE)

[1]      On 2 October 2014, the second defendant/respondent, the New Zealand Police, obtained a search warrant for, and executed the warrant at, the home address in Wellington of the plaintiff/applicant, Nicholas Hager.  In December 2015, Clifford J ruled, as a result of Mr Hager’s application for judicial review, that the warrant and search were fundamentally unlawful.   Questions relating to the lawfulness of the information inquiries undertaken by the police and the question of damages for a breach of the New Zealand Bill of Rights Act 1990 (NZBORA), both of which had been claimed by Mr Hager, were deferred pending a substantive hearing which is scheduled to commence on 18 June 2018 (the first proceeding).1

[2]      In the meantime, Mr Hager has commenced a second claim under NZBORA relating to production orders and other investigations undertaken by the police in relation to Mr Hager (the second proceeding).2  He seeks declarations that their actions were unlawful and amounted to an unreasonable search and seizure under NZBORA, orders that all information unlawfully obtained as a result be destroyed, general damages and exemplary damages.  The second proceeding will also be heard at the fixture commencing 18 June 2018.

[3]      Mr Hager is an investigative journalist.  The actions complained of by him stem from his authorship of the book Dirty Politics: How Attack Politics is Poisoning New Zealand’s Political Environment (Dirty Politics), published in August 2014 during the general election campaign of that year.  He had been supplied with a USB

1      CIV-2014-485-1134.

2      CIV-2016-485-203.

stick containing “thousands of documents” which appeared to have originated from an attack hacking into the Whale Oil website. Indeed, Mr Hager publicly acknowledged he was aware material had been hacked from the computer of the author of that website, Cameron Slater.  The hacker was personally known to Mr Hager, as was the person who had provided the material to him.  Mr Hager claimed confidentiality of the source.

[4]      Mr Slater complained to the police that his computer had been accessed illegally in early 2014.  The police began an investigation, the focus of which was to determine those responsible for hacking Mr Slater’s computer and providing the material to Mr Hager.  At the outset anyway, Mr Hager was a suspect in that investigation on the basis he was likely to be in possession of stolen material.

[5]      Around the same time the police were advised, as a result of the Court of Appeal’s decision in Dixon v R,3 that Mr Hager could no longer be regarded as being in possession of stolen material.  As a result, the application for a warrant was made on the basis he was an uncooperative witness rather than a suspect (although Mr Hager had not been interviewed by the police, he had made it clear he would not reveal his source).

[6]      The warrant was executed when Mr Hager was not at home.  His daughter,

Ms Wells, was. As well as Mr Hager’s possessions, a great deal of Ms Wells’ personal material, including her cellphone, letters and a private photograph album, was seized.

[7]      Mr Hager told the police by telephone the search would interfere with his rights and obligations in relation to sensitive projects and confidential sources.  This was affirmed by one of Mr Hager’s legal advisers who arrived at the house and asserted privilege shortly after the police arrived.  As a result, the police agreed all materials seized would be sealed but not searched without permission of a Judge.

[8]      The proceedings commenced in the High Court with the police seeking a determination of Mr Hager’s claim to privilege. Those proceedings were put on hold once Mr Hager filed his application for judicial review.

3      Dixon v R [2014] NZCA 329, [2014] 3 NZLR 504.

[9]      As well as commencing these proceedings, Mr Hager has also sought from the police documents under the Official Information Act 1982 (OIA) and the Privacy Act

1993 (PA).

[10]     Mr Hager is now extremely frustrated at what he considers a failure by the Crown to comply with its disclosure and discovery obligations.  He says the Crown has provided documents in 28 tranches, those tranches frequently revealing important new information which he considers the Crown has previously kept hidden from him. He therefore seeks declarations that the Crown has breached its obligations and further orders to ensure the Crown’s obligations are met.

The application

[11]     Mr Hager seeks three declarations as follows:

(a)that the police breached an undertaking given on its behalf by Crown counsel,  Mr  Horsley,  during  a  judicial  telephone  conference  on

6 November  2014  to  the  effect  the  police  would  comply  with  its disclosure obligations under the OIA and the PA and expected to do so by 24 November 2014 (the alleged Undertaking);

(b)that the police breached the tailored discovery order made by this Court on 17 December 2014 in respect of the first proceeding to be provided by 23 January 2015 (the Tailored Discovery Order); and

(c)that the police breached the standard discovery order made by this Court on 3 March 2017 in respect of the second proceeding, to be provided by 31 March 2017 (the Standard Discovery Order).

[12]     Mr Hager seeks orders requiring the police to fulfil the alleged Undertaking, to review the documents it holds and controls for compliance with the discovery orders and to file a further affidavit of documents.

[13]     Mr Hager seeks orders requiring the police to provide to the Court for the

Court’s review copies of all documents in relation to which the police continue to seek

confidentiality orders.   He also questions whether there is any continued need for certain confidentiality findings already made.

[14]     Finally, Mr Hager seeks unless orders, meaning that, unless the police comply strictly with the orders by a date set, they will be debarred from defending the proceedings.

[15]     The defendants/respondents oppose the application.  They deny the alleged Undertaking was given and say the police have complied with their obligations under the OIA and PA. The police say they have complied with the discovery orders. While the police maintain the confidentiality reasons continue to apply, they are content for this Court to review the documents discovered since this Court’s previous review.

The alleged Undertaking

[16]     Mr Horsley denied providing the alleged Undertaking, saying he would not have done so because it was not within his power to undertake that the police would comply with Mr Hager’s requests under the OIA and PA.  He referred to the Minute of Collins J dated 6 November 2014, following a telephone conference with counsel. Collins J recorded:

[10]     The Crown anticipates complying with its discovery obligations by

24 November 2014.

[17]     I accept the Minute refers to discovery obligations as opposed to disclosure under the OIA and PA. Although there may well be a cross-over between documents disclosed under that legislation and discoverable under the first and second proceedings, the discovery and disclosure should be kept separate, even if that might involve a certain amount of duplication.

[18]     In fact, both the Privacy Commissioner and Ombudsman have assessed the complaints and concluded Mr Hager has received the information to which he is entitled.  Notwithstanding this, both the Privacy Commissioner and the Ombudsman

were somewhat critical of the way in which the police had dealt with Mr Hager’s requests.4

[19]     In  his  letter  dated  28 April  2016,  the  Privacy  Commissioner  considered

Mr Hager’s response to his preliminary view of Mr Hager’s complaint.  He observed he had asked Mr Hager’s counsel to identify those documents he maintained had not been disclosed and he followed up that request by three emails.  He did not have a response.5

[20]     The Privacy Commissioner pointed out that Mr Hager was entitled to have the matter heard de novo in the Human Rights Review Tribunal.   The Privacy Commissioner did not himself consider that the file warranted referral to the Tribunal.

[21]     The Privacy Commissioner had reviewed the information withheld by the police and was satisfied it was appropriately withheld pursuant to the PA.   He understood the police provided that information to Mr Hager’s counsel, Mr Geiringer, in February 2016.6   Mr Geiringer complained that in fact it was not until 23 March

2017 that the police provided a list of documents withheld under the OIA and PA.

[22]     Mr Geiringer referred to further disclosure of documents under the OIA and/or

PA on 20 February 2017, 2 October 2017 and, in relation to Ms Wells, on 13 April and

17 April 2018. That demonstrated, in his submission, continued non-compliance with

OIA/POA requests.

[23]     Mr Hager’s frustration with the way in which his OIA and PA requests have been dealt with is understandable. I note, however, that his requests are wide-ranging, going back, as I understand it, to 2004. The police are obliged to comply with the OIA and PA. They should not need the interference of this Court before they comply with their statutory duty.

4      See for example letter from John Edwards (Privacy Commission) to Steven Price (Barrister)

regarding Mr Hager’s complaints (17 March 2016) at [2], [26], [29] and [30].

5 Letter from John Edwards (Privacy Commission) to Steven Price (Barrister) regarding Mr Hager’s complaints (28 April 2016) at [10].

6      Letter from John Edwards, above n 4.

[24]     However, I agree with the observations of Dobson J in the first proceedings in

December 2014 that:7

[17]     I do not see any scope for orders against the respondents in this judicial review that would require disclosure of documents beyond those that are discoverable in accordance with the Court rules. Requests under the OIA have their own process under that Act and it is inappropriate to pre-empt that in any way.  In any event, the Court does not have jurisdiction to review a refusal to provide information under the OIA until there has been an Ombudsman’s decision in relation to any complaint Mr Hager pursues.

[25]     Mr Geiringer requested that, if the orders and declaration sought in respect of OIA and PA disclosure were not to be made on the basis they were collateral to the first and second proceedings, Mr Hager should be released from his undertaking in relation to material discovered in these proceedings. The intent would be if, as a result of discovery in these proceedings, Mr Hager becomes aware of further breaches of his OIA and PA requests, then Mr Hager should be entitled to use that information to reopen/renew or commence a new complaint or complaints with the Privacy Commissioner or Ombudsman.  Mr Horsley for the Crown was reluctant to accede to that request. It does, however, seem to me entirely reasonable.

[26]     Rule 8.30(4) of the High Court Rules 2016 provides as follows:

(4)A party who obtains a document by way of inspection or who makes a copy of a document under this rule—

(a)may use that document or copy only for the purposes of the proceeding; and

(b)except for the purposes of the proceeding, must not make it available to any other person (unless it has been read out in open court).

[27]     McGechan provides the following succinct commentary:8

Rule 8.30(4) provides that a party who receives copies of discovery documents under this rule may only use them for the purposes of the proceeding, and not make them available to any other person unless the document has been read out in open Court.  This rule codifies the common law constraint on use of discovered documents for purposes other than the litigation in which it was discovered. Compliance with this rule is important to maintain confidence in the discovery process and the Court will view non-compliance sternly.

7      Hager v Attorney-General [2014] NZHC 3293.

8      McGechan  on  Procedure  (online  looseleaf  ed, Thomson  Reuters)  at  [HR8.30.03]  (citations omitted).

The Court may permit collateral use of discovery documents.  Generally, permission should be sought by interlocutory application supported by evidence.  A close connection between two proceedings may justify permission being granted. It is implicit in r 8.30(4) that the parties themselves may agree on collateral use without recourse to the Court.

[28]     Mr Hager is therefore entitled to pursue the matter by following the process outlined by McGechan should he become aware through discovery in these proceedings of a breach of the OIA and/or PA which warrants referral to the Privacy Commissioner and/or Ombudsman.

Alleged non-compliance with discovery orders

[29]     Mr Geiringer alleged the Crown has repeatedly breached discovery orders and the police have still not complied with them.  He referred to the fact the Crown has provided documents in 28 tranches. However, that includes 12 tranches of documents disclosed pursuant to the OIA/PA requests.

[30]   Mr Geiringer complained of 13 tranches of documents purportedly in compliance with the Tailored Discovery Order. These began in January 2015, the most recent being 9 July 2015.  The hearing before Clifford J took place on 13–15 July

2015.  Tailored discovery was therefore provided prior to the hearing.  In saying that, the police’s fifth affidavit of documents dated 21 February 2018, which followed a review of prior discovery, likely incorporated documents relevant to the first proceeding.

[31]     The  second  proceeding  was  commenced  following  documents  provided pursuant to the Tailored Discovery Order in January 2015.   It was then Mr Hager became aware the police had obtained his banking transactions without a warrant or production order and had sought further information about him from Air New Zealand, Vodafone, Spark and Trade Me, also without orders.

[32]     There  have  been  three  tranches  of  standard  discovery:  31  March  2017,

6 November 2017 and 21 February 2018.

[33]     In support of his submission that the discovery was incomplete, Mr Geiringer referred to information Mr Hager learned from OIA and PA disclosure, for example

that made on 20 April 2017. That included a job sheet of Detective Teo relating to the execution of the warrant, which Mr Geiringer said had not been provided under discovery. On 29 September 2017, he raised inter alia the failure to disclose Detective Teo’s job sheet and asked the Crown to explain discrepancies in discovery, asking for discovery to be reviewed. The Crown denied any discrepancies and, in relation to the job sheet of Detective Teo, maintained it was not part of the police’s discovery because it was made after the 2 October 2014 “cut-off date” set by Dobson J.

[34]     In his December 2014 judgment, Dobson J specified the documents which would be relevant to the issues in the first proceeding.  He included documents in relation to the execution of the search warrant as including:9

Job sheets or other contemporaneous records in respect of the search created by Police officers who attended the search, either in the course of the search or shortly thereafter.

[35]      Mr Geiringer is therefore correct that Dobson J’s order did not have a cut-off date.  I also agree with him that a job sheet, even if a draft as Mr Horsley appeared to contend it was, should have been disclosed.  As Mr Geiringer noted, it appears that approximately 81 of the documents provided in the first tailored discovery tranche,

23 January 2015, were dated after the date of the search, including job sheets.

[36]     Furthermore, the High Court Rules provide continuing obligations in relation to discovery, including that a party must discover a document if, in making tailored discovery, the party becomes aware of a document not required to be discovered but which adversely affects that party’s own case, another party’s case or supports another party’s case.10

[37]     The Crown’s submissions in respect of alleged breaches of the discovery orders began by referring to the context of the exercise, saying:

This was a unique situation involving disclosure of documents during an ongoing criminal investigation, to a person who knew the identity of the offender, and who had publicly stated he would do everything he could to protect them.

9      Hager, above n 7, at [39(b)(i)].

10     High Court Rules 2016 [8.18].

[38]     Mr Horsley also contended that many of the concerns raised by Mr Hager were collateral to the proceedings, including the OIA and PA requests.

[39]     I have already referred to the different obligations in respect of discovery in these  proceedings  and  disclosure  under  the  OIA and  PA.    The  point  made  by

Mr Geiringer, which appears to have some force, was that documents revealed under the OIA and PA requests revealed documents which should have been provided by way of tailored discovery.

[40]     The notice of opposition to the application noted the police were reviewing the documents in their possession and control pursuant to the ongoing discovery obligations and, if necessary, would provide a supplementary discovery affidavit before 12 March 2018.

[41]     On 21 February 2018, the police filed its fifth affidavit of documents.  The affidavit was sworn by Detective Sergeant Beal. He said:

2.        As a result of the plaintiff’s application for further discovery dated

30 November 2017 I have undertaken a review of all documents that Police have previously collated and considered for discovery but had not been listed in any of the four previous discovery affidavits. Some of these documents are duplicates of documents that have already been discovered.  I did this exercise to consider whether Police hold documents that were perhaps in error not discovered and should now be discovered in this consolidated proceeding.

3.        I also located a few potentially relevant documents that Police hold that were not in existence when the other collated documents were previously considered for discovery under the tailored discovery order made by this Court on 17 December 3014.  I have also considered those documents for the purpose of making further discovery.

4.        In  undertaking this supplementary discovery exercise I  have not revisited documents that have previously been listed in any category of one of the four Police discovery affidavits that have already been filed in this proceeding. However, I have listed 6 Paypal documents,

5 of these documents were informally discovered in November 2017 and  three  of  these  documents had  previously  been  classified  as confidential.

5.        As far as I am aware, all documents held by police that could be relevant  to  the  tailored  discovery  order  made  by  this  Court  on

17 December  2014,  and  the  standard  discovery  order  made  on

3 March 2017, have now been identified and collated and considered for discovery.

6.        I  understand  Police’s  obligations imposed  by  the  two  discovery orders.  In conducting the supplementary discovery exercise referred to  above  I  have  identified further  documents that  Police  should discover.  I have attempted not to list duplicates of documents that have already been discovered.  However, I might not have identified all duplicates and there may be some documents that are now listed

that have previously been discovered.

[42]     At the hearing, Mr Geiringer maintained it was inappropriate for Detective Sergeant Beal to swear the affidavit because he was criticised in the proceedings.  I note Mr Horsley’s response.  I agree it is to be expected that Detective Sergeant Beal would swear the affidavit of discovery given his senior role in the investigation. I note Mr Horsley’s assurance that Crown Law staff were involved in reviewing all the documents to ensure the police’s obligations have been complied with.

[43]     Mr Geiringer’s complaints about new disclosures since the fifth affidavit really centre on information revealed about alleged invasions into Ms Wells’ privacy and whether the police have breached the settlement reached with her in December 2016. As discussed at the hearing, that is an issue for Ms Wells.

[44]     What transpired from the hearing was that Mr Geiringer has some justification for his complaints about the failure to respond to his requests. For example, much was made of call records sought in respect of Ms Wells’ cellphone, on the basis Mr Hager does not possess a cellphone and had admitted he often uses cellphones of others. This information was revealed in April 2018. The police have apparently said they had not sought Mr Hager’s emails and phone call records. Mr Geiringer contended the police could not possibly have had any basis to search Ms Wells’ phone records without first seeking details about calls made from Mr Hager’s home landline.  Information about this was discovered in the police affidavit of 23 January 2015 and the further discovery provided on 14 May 2015. That made it clear the police did request information about Mr Hager’s home landline but nothing was revealed.  In Mr Horsley’s submission, there would then be evidence that the police took no further steps in this regard.

[45]     Mr Geiringer’s point was that he wrote to the police and Crown Law seeking confirmation of whether there was anything which arose from that original request for further information about Mr Hager’s landline. He said he did not receive a reply.

[46]     I do not propose to trawl through the 20 volumes of documents to ascertain what has been said in correspondence between counsel.  I will simply observe that it would appear some of Mr Geiringer’s complaints and concerns could have been allayed if there had been a timely response to his inquiries.

[47]     The only other issue which requires some comment is the extent of disclosure. Mr Geiringer complained that the police had retained private photographs from the cellphone of Ms Wells, whereas she understood they took a copy of her contact list only.  It was not until April 2018 that the police released a USB stick which disclosed the photographs. This was in respect of an OIA and PA request. Mr Horsley made the point that the discovery in these proceedings made it clear Ms Wells’ cellphone was cloned, a fact she was aware of from the date of the search itself and confirmed in discovery made in May 2015.  In Mr Geiringer’s submission, in any assessment of NZBORA damages, every aspect of what the police did required consideration in this case.  That cannot, however, mean the police are required to itemise the content of

Ms Wells’ cellphone.  The fact her cellphone was cloned and that it contained a great deal of private and indeed intimate material, is sufficient.

Conclusion on non-compliance with discovery orders

[48]     The Tailored Discovery Order was complied with by the Crown providing discovery on 13 separate occasions from 23 January 2015 to 9 July 2015.  There was at least one breach of that, being the failure to disclose the job sheet of Detective Teo which was made available in OIA and PA disclosure. The fifth affidavit was provided to ensure compliance.  Standard discovery has been undertaken in three tranches.

[49]     Mr Geiringer sought declarations to the effect the Crown had failed to comply with the Tailored and Standard Discovery Orders.   He also sought unless orders requiring the Crown to comply.

[50]     The Crown has undertaken a complete review to ensure compliance with its obligations and provided the fifth affidavit dated 21 February 2018.   I accept the assurances from Crown counsel in this regard.

[51]     In the usual course, the remedy for late discovery is an adjournment and/or costs.

[52]     Pursuant to r 8.33(1) of the High Court Rules, the Court may find a person guilty of contempt where they have, wilfully and without lawful excuse, disobeyed a discovery order or failed to ensure it is complied with.  Generally, a finding of contempt of court is not made lightly and indeed the Court may not be so inclined even in cases where a party has flagrantly ignored a discovery order.11

[53]     While, in the circumstances as noted above, some legitimate criticism can be levelled at the police in respect of the way in which discovery has been attended to in these proceedings, it is certainly not to the egregious level required for a finding of contempt.  Given the Rules specifically provide for a finding of contempt and do not provide for a declaration of non-compliance, I have some difficulty with the notion a declaration could be made. In any event, I am not satisfied that any breach in this case would merit a declaration.

[54]     Given these circumstances, the case does not fall within the category where an independent review should be considered, as requested by Mr Geiringer as an alternative.12

Confidentiality

[55]     The Crown consents to this Court reviewing any documents discovered which were not considered by Dobson J in his reviews of alleged confidentiality.13

[56]     Mr Hager asked this Court to review the confidential documents already considered by Dobson J.  This was on the basis of a change in circumstances.  Some documents were originally classified as confidential because they named confidential police informants. One such has apparently “outed himself” and has published on the internet documents which show he discussed the search with the police.   Other

11     See for example Huang v Luo [2017] NZHC 680 at [17]–[18].

12     See for example R v Lyttle [2017] NZHC 2631.

13     Hager v Attorney-General [2015] NZHC 262, (2015) 22 PRNZ 550; and Hager v Attorney- General [2015] NZHC 1508.

documents named other suspects but, again, in Mr Geiringer’s submission one such suspect has outed himself.

[57]     Mr Horsley, for the Crown, agreed that he would consider the implications of the so-called outing and I note Mr Geiringer has provided information to support his submissions in this regard.

[58]     In any event, the issue is the relevance of the documents in the context of the pleadings.  For example, it may be sufficient that disclosure has revealed the police applied for a production order in respect of another person using exactly the same grounds as those relied on in relation to Mr Hager.  That will then be a matter for submission – the Crown no doubt submitting that would be expected in the circumstances,  while  on  behalf  of  Mr Hager  the  submission  would  be  that  the approach was highly relevant to the reasonableness of the police behaviour.

Preparation for trial

[59]     Given  that  I  am  satisfied  the  Crown  has  complied  with  its  discovery obligations, counsel should focus on preparation for the trial.  Quite some time ago, Mr Geiringer sent a draft summary of facts to the Crown.  The extent to which that can be agreed will dictate the amount of evidence required at the hearing.

[60]     The following timetable is agreed:

(a)The Crown is to respond to the summary of facts and/or itemise what admissions the Crown will make by 4.00 pm on 15 May 2018.

(b)The plaintiff will respond with his assessment of the impact this will have on the evidence required at trial by 4.00 pm on 18 May 2018.

(c)Counsel will file a joint memorandum with an agreed process to prepare the case for trial by 4.00 pm on 22 May 2018.  This will include the extent of any review of confidential material which is sought.

(d)The Crown is to provide a complete set of all documents discovered since Dobson J’s confidentiality rulings in respect of which confidentiality and privilege have been claimed. This must identify the redactions made on the copies provided to the plaintiff and the reasons.

[61]     Neither the application nor submissions addressed costs.    In any event, I

reserve costs which can be dealt with at the conclusion of the substantive hearing.

Thomas J

Solicitors:

Bennion Law, Wellington for Applicant/Plaintiff

Crown Law, Wellington for Respondents/Defendants