Hager v Attorney-General
[2015] NZHC 262
•24 February 2015
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 respondentsJudgment:
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 privilege, but that aspect of the withholding of documents from inspection was not in issue.
[6] In a memorandum dated 10 February 2015, counsel for the Police provided a table of each of the documents that had been withheld from inspection by Mr Hager’s counsel. One or both of two categories of concern were relied on as sufficiently important confidentiality concerns to justify withholding these documents from counsel. The first ground in respect of confidential documents was that disclosure would reveal investigative methods used by the Police that could prejudice the current investigation, or future investigations, or the maintenance of law. The second ground was for the maintenance of what is effectively the secrecy of confidential sources, or the identity of persons of interest or potential witnesses in the current investigation. A third ground for withholding parts of documents in part 4 of the list (those documents partly redacted) was irrelevance to matters in issue.
[7] For all but seven of the documents in part 3 of the Police list of documents, the table provided an explanation as to why the particular content of each document brought it within either or both of these grounds for claiming confidentiality. In respect of seven documents, the Court was provided with a confidential appendix where counsel for the Police considered that the explanation was of itself sufficiently sensitive to justify it being withheld from counsel for Mr Hager.
[8] In his oral submissions, Mr Geiringer made enthusiastic and wide-ranging attacks on the reasonableness and competence of the Police in responding to the discovery obligation that I have ordered. He cited several factors as cumulatively justifying rejection of the Police claims that their confidentiality concerns are justified:
· the extent of redactions in documents that he has been able to inspect;
·the purported unreasonableness of the Police seeking to exclude Mr Hager from consideration of the open documents that had been discovered when many of them are from readily available media sources and other non- confidential third parties; and
·what he characterises as serial failures in not complying in a timely way with discovery obligations, or disclosure obligations under the Official Information Act 1982 and the Privacy Act 1993.
Nature of the documents
[9] I have assessed the content of all the confidential documents in light of the reasons advanced on behalf of the Police for claiming confidentiality, and bearing in mind the various grounds for scepticism in that task, as urged on me by Mr Geiringer.
[10] Mr Geiringer argued that such claims to confidentiality ought to be supported by evidence enabling the Court to test the justification for the claims made. In this case, no such evidence has been filed and the Police have relied solely on the characterisation of the documents set out in the memorandum from counsel, leaving me to assess that characterisation in light of the content of the documents themselves.
[11] In one aspect of the judicial review proceedings brought by Mr Dotcom and others in relation to the circumstances of execution of a warrant at Mr Dotcom’s residential property, the Police did file evidence in support of the claim to confidentiality as to the identity and location of a property owner in the area who had permitted a surveillance device to be located on his property for the purposes of observing the Dotcom property. That evidence was taken into account by Winkelmann J in upholding the claim by Police as to the importance of respecting
confidentiality of the person providing the relevant assistance.3 However, in that
case the Court was prepared to assess the importance of respecting confidentiality of another document by coming to its own view on the importance of claims to confidentiality and apparently without evidence addressing the point. The document appears to have been an internal Police request for assistance from a special group within Police, for them to assist with covert surveillance. Winkelmann J was satisfied that disclosure of the document could prejudice future operations.4 In the
circumstances of this case, the Court is not prevented from adequately considering
3 Dotcom v Attorney-General [2013] NZHC 695 at [19].
4 Dotcom v Attorney-General, above n 3, at [8].
the claims to confidentiality by the absence of evidence addressing the purported need to retain confidentiality.
[12] I have not attempted any individual ranking of the relative importance to either the present investigation, or the on-going integrity of Police investigative methods, of individual documents within the category that the Police effectively argue should remain secret. In some cases, my perception might differ somewhat from views reasonably held on behalf of the Police. Overall, I am satisfied that the content of the documents justifies a relatively high level of concern on behalf of the Police that all possible steps be taken to keep that content secret to those involved in the investigative work. I am not persuaded that there is any material variance between the content as I understand it in the context of all the documents, and the sensitivity attributed to them in counsel’s schedule, which casts any doubt on the good faith of the characterisation of the documents that has been carried out on behalf of the Police.
Section 69 criteria
[13] I therefore come to assess the claim to confidentiality by reference to the criteria in s 69 of the Evidence Act 2006. That section includes the following guidance:
69 Overriding discretion as to confidential information
…
(2) A Judge may give a direction under this section if the Judge considers that the public interest in the disclosure in the proceeding of the communication or information is outweighed by the public interest in—
(a) preventing harm to a person by whom, about whom, or on whose behalf the confidential information was obtained, recorded, or prepared or to whom it was communicated; or
(b) preventing harm to—
(i) the particular relationship in the course of which the confidential communication or confidential information was made, obtained, recorded, or prepared; or
(ii) relationships that are of the same kind as, or of a kind similar to, the relationship referred to in subparagraph (i); or
(c) maintaining activities that contribute to or rely on the free flow of information.
(3) When considering whether to give a direction under this section, the
Judge must have regard to—
(a) the likely extent of harm that may result from the disclosure of the communication or information; and
(b) the nature of the communication or information and its likely importance in the proceeding; and
(c) the nature of the proceeding; and
(d) the availability or possible availability of other means of obtaining evidence of the communication or information; and
(e) the availability of means of preventing or restricting public disclosure of the evidence if the evidence is given; and
(f) the sensitivity of the evidence, having regard to—
(i) the time that has elapsed since the communication was made or the information was compiled or prepared; and
(ii) the extent to which the information has already been disclosed to other persons; and
(g) society’s interest in protecting the privacy of victims of
offences and, in particular, victims of sexual offences.
(4) The Judge may, in addition to the matters stated in subsection (3), have regard to any other matters that the Judge considers relevant.
…
[14] In many proceedings, such claims to confidentiality do not extend to excluding opposing counsel from access to the confidential documents. Rather, the restriction is on the ability to use a document in the proceeding, including disclosure to the opposing parties. Mr Geiringer made the point that a higher level of concern to preserve confidentiality should be required before otherwise discoverable documents are kept from counsel entirely. A countervailing consideration is that there will generally be limited utility in giving counsel access to a document once a case has been made out for directing that it is not to be used in the proceeding.
[15] In this case, the claim to confidentiality reflects forms of public interest as described in s 69(2). The concern to take all reasonable steps to avoid disclosure of the identity of persons of interest or suspects in a criminal investigation of this type attracts a high value in weighing the public interest. Unintended adverse inferences against persons named in this context should be avoided if at all possible. The Police would be the first to acknowledge that the range of individuals whose names appear in the documents is likely to bear no relationship to those whom the Police might subsequently consider charging with a relevant offence. From the Police perspective, disclosure that any particular individual is either a person of interest or a suspect might also frustrate the course of investigations that the Police would otherwise anticipate progressing without any such disclosures.
[16] A further consideration is the predictable harm that could follow, to both the relationship between the Police and those providing information in the present case, and between the Police and the class of persons who may be inclined to provide information but only in reliance on the ability of the Police to keep their identity secret.
[17] In terms of the public interest considerations under s 69(2), I am satisfied that significant harm would be likely to result from the disclosure of the documents for which confidentiality is claimed. The nature and extent of potential harm differs, with the greatest risk attaching to those documents that would reveal the identity of suspects or persons of interest, and the identity of sources of Police information being used in the investigation. I recognise the risk of a somewhat lesser level of harm arising from disclosure of Police investigative methods.
[18] On this consideration, I acknowledge Mr Geiringer’s argument that a number of individuals who appear either to be suspects or persons of interest in the Police investigation are identified or identifiable from the content of documents to which Mr Hager’s counsel already have access. That is not an adequate answer, given the different context in which persons are identified or identifiable in the documents for which confidentiality is claimed.
[19] Turning to the mandatory considerations under s 69(3). As to the likely importance of the information in the proceeding,5 I am not persuaded that Mr Hager could materially bolster the arguments already foreshadowed, or amend his grounds of challenge to strengthen the prospects of success, by reliance on the documents for which confidentiality has been claimed. Mr Geiringer recognised that the exclusion of the confidential documents may be material to the proceeding in two ways. First,
to the extent that any of the confidential documents might provide additional justification for the lawfulness of Police conduct in deciding to apply for the warrant and subsequently executing it, then those documents are not available to bolster the response to Mr Hager’s challenge. Mr Hager cannot complain about that consequence of the exclusion of confidential documents.
[20] On the other hand, Mr Geiringer argued that some of the confidential documents may reflect conduct on the part of the Police, or an approach to the exercise of the relevant statutory powers, that could found additional criticisms of the Police conduct. It would follow that withholding the confidential documents may be important in lessening the strength of the challenge Mr Hager can mount.
[21] I cannot discount the prospect that Mr Hager’s counsel might raise additional criticisms of the Police conduct, if they were able to rely on all the confidential documents. However, in proportional terms, as I understood the range of arguments foreshadowed on behalf of Mr Hager by Mr Miles QC at the December 2014 hearing, I am comfortable that the strength of those existing arguments is not materially impaired by counsel’s inability to rely on the confidential documents. An adequate picture of the nature of the Police investigation is available from the documents to which counsel have had access, so that the importance of confidential documents is certainly less than if there had been no discovery at all.
[22] The nature of the proceeding6 is a judicial review challenging the lawfulness and reasonableness of the exercise by the Police of their power to seek a warrant and subsequently to execute it. It raises potentially important issues of principle on the
relationship between the statutory recognition of protection of journalists’ sources in
5 Evidence Act 2006, s 69(3)(b).
6 Evidence Act 2006, s 69(3)(c).
s 68 of the Evidence Act, and the powers to conduct warranted searches under the Search and Surveillance Act 2012. The minutiae of the on-going Police investigation is unlikely to make a material difference to the issues of law that are likely to arise in determining the challenge to the lawfulness of the Police conduct. To the extent that the challenge also asserts that the manner of exercise of powers was unreasonable, then the detail of the investigation so far might have a bearing. However, my view, which is necessarily superficial, is that the greater level of detail revealed in the confidential documents is unlikely to be of material assistance on any arguments as to the alleged unreasonableness of Police conduct.
[23] Mr Geiringer made two points in respect of the relative importance of the criminal investigation. First, that the complaint related to an alleged offence of accessing a computer system without authorisation,7 which Mr Geiringer described as “hardly the most serious offence on the books”. Further, criticising the scale of the investigation in this case, Mr Geiringer asserted that the Police had committed disproportionate resources to this investigation, when compared with their response
to other complaints of alleged offending of the same type. I took Mr Geiringer’s criticism to extend to the Police allegedly undertaking more thorough investigation in this case than in others because of the identity of the complainant.
[24] In terms of the mandatory considerations in s 69(3), these points may be relevant to assessments of the likely extent of harm that could result from disclosure of the information, in a broader sense to the nature of the proceeding, and also to the relative sensitivity of the evidence.
[25] I am not persuaded that the relative seriousness of the alleged offending in issue justifies downgrading the extent of harm that might follow from disclosure of the confidential documents. Those associated with any such offending face the stigma of alleged involvement in relatively serious criminal behaviour. Nor am I persuaded that the highly sensitive aspects of the investigation are less worthy of confidentiality protection because the Police are allegedly committing more extensive resources to this complaint, than they have to others of a similar type.
Mr Hager may seek to make that point on the relative unreasonableness of the Police
7 Crimes Act 1961, s 252.
conduct in relation to him, but it cannot materially reduce either the extent of harm, or the sensitivity of the evidence that might otherwise be available from the confidential documents.
[26] In this case, there are unlikely to be other means of obtaining evidence of the communications and information contained in the confidential documents.8
However, for the most part the confidential documents would reveal a greater level of detail in relation to the Police investigation, beyond that which the documents that Mr Hager’s counsel have access to already provide. The disclosed documents give an indication of the nature and scope of the investigation at a somewhat more abstracted level of generality. The level of disclosure made by the Police does enable an analysis to be undertaken at a relatively generalised level, without enabling a minute analysis of every step of the investigation which could more readily be attempted if the confidential documents were available to counsel.
[27] If the confidential documents were made available, then that would introduce a meaningful risk of unintended disclosure of some content. Some aspects of Mr Geiringer’s argument proceeded from the implicit premise that the Police did not trust Mr Hager’s counsel with the confidential documents, when no grounds for any such lack of trust could possibly exist.
[28] Mr Horsley did not make any such submission. I would in any event reject any such concern as unwarranted. The issue with documents of this type is not whether counsel can be trusted to respect the confidentiality that the Police seek to protect. Rather, it is that the sensitive content of the confidential documents creates a sufficiently serious concern to minimise the opportunities for inadvertent disclosure so as to justify preventing access to them at all. If other aspects of the evaluation of the considerations under s 69(3) favour preservation of confidentiality, then the extent to which they are kept confidential should reflect the optimum
opportunity for preventing disclosure.
8 Evidence Act 2006, s 69(3)(d).
[29] In assessing the sensitivity of evidence derived from the confidential documents,9 that is high given that the documents reflect an on-going Police investigation, and that the content of the confidential documents has been guarded, effectively as a Police secret, until I called for confidential disclosure of them to me.
[30] The assessment of this sequence of considerations points consistently to an outcome upholding the public interest in the confidentiality of their content. Given the importance of the principle of open justice, this is not a conclusion that the Court can come to lightly. Nevertheless, it is the compelling outcome in this case. I am satisfied that the Police are entitled to a direction under s 69 that the contents of the documents in part 3 of the list remain confidential, and that extends to their not being available to counsel for Mr Hager for inspection purposes in the proceeding.
[31] I note that Mr Horsley did not rely on s 70 of the Evidence Act, which empowers a Judge to direct that information relating to “matters of state” is not to be disclosed in a proceeding to which it might be relevant. The concept of “matters of state” can include information, the disclosure of which could prejudice the maintenance of the law including the prevention, investigation and detection of offences.10 It may be that the concern of the Police not to have confidential aspects of their investigative techniques revealed by means of disclosure in this judicial review could have qualified for consideration under s 70. I have, however, confined
the analysis to the matters in s 69 of the Evidence Act.
Disclosure beyond counsel
[32] A further issue was Mr Geiringer’s concern that the documents Mr Hager’s counsel have thus far seen ought also to be available for personal inspection by Mr Hager. By the time of the hearing on 13 February 2015, Mr Horsley had obtained further instructions from the Police, enabling him to agree to relaxation of the constraint previously asserted on behalf of the Police. With the exception of three documents, the documents from the “open” part of the list of documents as verified on behalf of the Police can be disclosed to Mr Hager, and to Mr Adam
Boileau, a computing expert who is being retained by Mr Hager’s legal advisers.
9 Evidence Act 2006, s 69(3)(f).
10 Compare with Dotcom v Attorney-General, above n 3, at [4].
[33] In the case of Mr Boileau, he is to complete a written acknowledgement which is to be signed and dated and held by Mr Hager’s solicitors, confirming that Mr Boileau accepts the responsibilities of an expert as specified in sch 4 to the High Court Rules. It must also explicitly acknowledge that all information sourced from the Police that has been provided to him is to be used solely for the purposes of providing an opinion in this proceeding, and is not to be disclosed in any circumstances during or after completion of his retainer, without obtaining the Court’s permission to do so.
Exceptions among open documents
[34] Messrs Horsley and Geiringer remained at odds on restrictions the Police wish to maintain in relation to three of the documents that were in the open part of the Police list (part 1). The first was document POL10000.0033, which comprised a form in which the Police requested information from an electronic service provider. The Police sensitivity is in relation to the type of information that the Police can gather from sources such as the recipient of that request. Mr Geiringer was dismissive about the prospect of any sensitivity for this sort of inquiry, and argued that the content of the document would not be news to Mr Hager or anyone who took a close interest in such matters.
[35] Mr Geiringer demonstrated an awareness of such techniques at a higher level than he may credit himself with. No specific need for Mr Hager to seek this document was made out, and it is difficult to foresee that the course of provision of instructions will be hampered by his being excluded from it. I accordingly uphold the Police wish to exclude that from the documents from the open part of its list that are able to be inspected by Mr Hager.
[36] The second document was POL50000.0013. This was an internal Police communication addressing one aspect of the manner in which officers executing the warrant might deal with computer equipment as they located it at Mr Hager’s residence. Mr Horsley argued that the conduct suggested in that communication was an aspect of investigative techniques that the Police treated as confidential and sensitive. He argued that Mr Hager was not inhibited in providing full instructions
to his legal advisers by being excluded from the document. On the other hand, Mr Horsley acknowledged that, once Mr Boileau has provided the appropriate undertaking, he should be entitled to access the document. I agree on both counts, so the document may be disclosed to Mr Boileau, but not to Mr Hager.
[37] The third document was POL50000.0006. That document is a proposed plan as to how officers executing the search warrant ought to go about it, and how they might be supported. It appears in part 4 of the list of the Police discoverable documents, given that parts of it have been redacted for solicitor/client privilege, and on account of confidentiality. Mr Horsley wanted one reference in para 9.4 of the document to remain redacted where it referred to the prospect of an additional initiative that the Police might pursue in conjunction with executing the warrant. Mr Horsley submitted that the Police were entitled to be concerned to preserve confidentiality of that detail, given its relevance as an on-going investigative technique applied in other cases. Although it was proposed in this case, it was not used and Mr Horsley argued it was therefore irrelevant.
[38] Mr Geiringer sought disclosure of this detail. He submitted that while the contemplated inclusion of the other activity might be embarrassing for the Police, that did not justify its being withheld.
[39] In balancing the reasonableness of the Police sensitivity on this aspect against the potential relevance that Mr Hager could made of it in arguing his case, I am satisfied that the detail sought to be redacted in para 9.4 should indeed be redacted before the otherwise redacted form of that document is made available.
[40] In summary, I confirm the appropriateness of disclosure of the open documents to Messrs Hager and Boileau, subject to the different treatment of the three documents that I have just addressed, and subject to the prior provision of the appropriate undertaking from Mr Boileau.
Transcript of recording during search
[41] One further specific concern related to redactions that the Police have made to the transcript of a covert recording made throughout the period that the officers
executing the warrant were at Mr Hager’s residence. As I understood the position reached by the end of the hearing, it was agreed that Mr Geiringer would have access to a copy of the recording, subject to the Police first editing out the parts of the recording that dealt with unrelated matters that were irrelevant to the current investigation, and also editing from the recording any exchanges between the officers on site that reflected legal advice they had received in relation to the task they were undertaking. Mr Horsley agreed to provide a list of the points in the transcript of those recordings at which such redactions had been made, with the reason for each redaction being specified. That has subsequently been done in a memorandum dated 18 February 2015, and I contemplate that Mr Geiringer’s assessment of the transcript by comparison with the recording will now occur, subject only to the recording being edited in respect of the passages that are redacted, and which correspond with the descriptions of the reason for those redactions in the
18 February 2015 memorandum.
[42] Costs issues arising on the present hearing are deferred for consideration in light of the substantive outcome.
Dobson J
Solicitors:
Bennion Law, Wellington for applicant
Crown Law, Wellington for respondents
3