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Hager v Attorney-General

Hager v Attorney-General

Case [2015] NZHC 3268 17 December 2015

Natural Justice & Procedural Fairness

Proportionality

Administrative Law

Criminal Law

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IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2014-485-11344 [2015] NZHC 3268

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 the District
Court at Manukau on 30 September 2014

BETWEEN

NICHOLAS ALFRED HAGER Applicant

AND

HER MAJESTY'S ATTORNEY- GENERAL

First Respondent

THE NEW ZEALAND POLICE Second Respondent

THE MANUKAU DISTRICT COURT Third Respondent

Hearing: 13-15 July 2015

Counsel:

J G Miles QC, F E Geiringer and S J Price for Applicant
B Horsley and K Laurenson for First and Second Respondents

Judgment:

17 December 2015

JUDGMENT OF CLIFFORD J

Table of Contents

Introduction ............................................................................................................. [1]

Facts.......................................................................................................................... [2]

HAGER v ATTORNEY-GENERAL [2015] NZHC 3268 [17 December 2015]

Mr Hager’s claim – an overview .......................................................................... [21] Evidence ................................................................................................................. [39] Issues ...................................................................................................................... [44] Is judicial review appropriate? ............................................................................ [50] A fundamentally unlawful warrant? ................................................................... [60]
Did the police comply with their duty of candour? ............................................... [60] The duty of candour ............................................................................................ [60] The application for the Warrant ......................................................................... [69] The adequacy of the application for the Warrant ............................................. [274] Section 68 and the protection of journalists’ sources.......................................... [88] The role of judges.............................................................................................. [117]

Conclusion............................................................................................................ [123] Warrant unduly broad?...................................................................................... [126] Other challenges to the Warrant ....................................................................... [144] An otherwise unlawful search? .......................................................................... [147] A final comment .................................................................................................. [148] Result .................................................................................................................... [149]

Introduction

[1] In these judicial review proceedings the applicant, Nicolas Hager, challenges the lawfulness of a search warrant issued by the District Court at Manukau on
30 September 2014 allowing the police to search his home, and of the search of his home that the police carried out pursuant to that warrant, in his absence on 2 October
2014.

Facts

[2] Mr Hager is an investigative journalist. Mr Hager’s particular interests are in such subjects as intelligence agencies, the military, the police, the environment, health, the public relations industry and unethical or undemocratic parts of politics.

Mr Hager has investigated, and published, books and articles reflecting those interests. Those books and articles focus on international events, as well as events in New Zealand. Mr Hager says there are common themes in his work relating to democracy, integrity in government, transparency, freedom of information and respect for human rights.

[3] Mr Hager’s work involves extensive use of information provided to him by inside sources. Those sources commonly provide such information to Mr Hager on the basis that Mr Hager will keep their identities secret, and promises to do so. Mr Hager says, and I have no reason to conclude this is not the case, that he has never disclosed the identity of one of his confidential sources, either in New Zealand or overseas.

[4] Mr Hager is the author of the book Dirty Politics: How Attack Politics is Poisoning New Zealand’s Political Environment (Dirty…

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 [2015] NZHC 3268
Case: [2015] NZHC 3268
Decision Date: 17 December 2015

CaseChat Overview and Summary

In Hager v Attorney-General, the High Court was asked to review a search warrant issued for the home of investigative journalist Nicolas Hager. Hager challenged the lawfulness of the warrant and the subsequent police search of his home, asserting that it violated his journalistic privilege and the rights to freedom of expression and security against unreasonable search and seizure as guaranteed under the New Zealand Bill of Rights Act 1990. The court held that the warrant was fundamentally unlawful due to the police's failure to disclose the issue of journalistic privilege and its implications when applying for the warrant, in violation of their duty of candour. The court also found that the warrant was too broad, allowing the police to seize irrelevant and confidential material. While the court acknowledged concerns about the reasonableness of the search execution, it determined that those issues were not suitable for resolution via judicial review. Consequently, the warrant and the search were declared unlawful.

Orders