Hager v Attorney-General - [2015] NZHC 262

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2014-485-011344 [2015] NZHC 262

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

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

ATTORNEY-GENERAL First Respondent

THE NEW ZEALAND POLICE Second Respondent

THE MANUKAU DISTRICT COURT Third Respondent

Hearing: 13 February 2015

Counsel:

F E Geiringer for applicant
B J Horsley and K Laurenson for first and second respondents

Judgment:

24 February 2015

RESERVED JUDGMENT OF DOBSON J (Challenges to confidentiality claimed for discovered documents)

Contested claims to confidentiality

[1] In a judgment issued on 17 December 2014, I ordered that the second respondent (the Police) were to provide discovery in these judicial review

HAGER v ATTORNEY-GENERAL [2015] NZHC 262 [24 February 2015]

proceedings of defined categories of document that are likely to be relevant to causes of action pleaded by Mr Hager.1

[2] An affidavit of documents completed in response to that order was filed and served on 23 January 2015. Part 2 of that list identified documents in respect of which the Police claimed privilege. Parts 3 and 4 included documents that the Police withheld from inspection on grounds that they were either entirely confidential (part 3) or partly confidential (part 4) and subject to appropriate redaction.2

[3] On 27 January 2015, counsel for Mr Hager filed a memorandum challenging the entitlement of the Police to withhold from inspection by counsel documents for which confidentiality was claimed. The memorandum complained that the Police were not being candid with Mr Hager or with the Court and that they were not complying with their obligations diligently and in good faith. The memorandum also questioned the justification for constraining Mr Hager’s counsel from showing him documents that were discovered on a counsel only basis. That constraint had been volunteered by Mr Hager’s counsel at the hearing in December 2014, and formed a part of the reasoning in my 17 December 2014 judgment.

[4] Counsel for the Police filed a memorandum in response dated 30 January

2015, indicating a preparedness to defend the claims for confidentiality and resisting other directions sought on behalf of Mr Hager.

[5] I convened a telephone conference with counsel on 5 February 2015 and called for the Police to provide me with a complete set of all documents, including those for which confidentiality and privilege were claimed. I had the opportunity of considering the unredacted form of the documents for which confidentiality is claimed in anticipation of hearing argument on Mr Hager’s challenge to that claim. Subsequent to the hearing, I have assessed documents more widely from other parts
of the list of discovered documents.

1 Hager v Attorney-General [2014] NZHC 3293.
2 Part 4 also included documents that were partly redacted on…

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 262
Case: [2015] NZHC 262
Decision Date: 24 February 2015

CaseChat Overview and Summary

In Hager v Attorney-General, the applicant, Nicolas Hager, sought judicial review of a search warrant issued by the Manukau District Court. The primary focus of the case was the confidentiality of certain documents discovered during the proceedings. The High Court was tasked with deciding whether these documents could be withheld from Hager's counsel and whether any of the documents should be disclosed to Hager himself. The Police argued that the documents contained sensitive information that, if disclosed, could prejudice ongoing investigations and harm individuals involved in the case. Hager's counsel argued that the extent of redactions and the nature of the documents made a compelling case for disclosure.

The Court assessed the documents and found that the Police's concerns about the potential harm from disclosure were valid. The confidential documents were deemed necessary to protect the integrity of the investigation and the safety of individuals involved. The Court concluded that the public interest in maintaining confidentiality outweighed the public interest in disclosure. Therefore, the Court upheld the Police's claims to confidentiality and ruled that the documents in question should remain confidential and not be disclosed to Hager's counsel. Additionally, the Court allowed limited disclosure of certain open documents to Hager and his expert, subject to specific conditions to ensure confidentiality was maintained.

Orders