Hager v Attorney-General - [2014] NZHC 3293

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2014-485-011344 [2014] NZHC 3293

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: 12 December 2014

Counsel:

J G Miles QC and F E Geiringer for applicant
B J Horsley and K Laurenson for first and second respondents
K Muller for third respondent

Judgment:

17 December 2014

RESERVED JUDGMENT OF DOBSON J (Discovery application and procedure for cloning)

[1] In this application for judicial review, the applicant (Mr Hager) alleges that

steps taken by the second respondent (the Police):

HAGER v ATTORNEY-GENERAL [2014] NZHC 3293 [17 December 2014]

first, in deciding to apply for a search warrant in respect of Mr Hager’s

premises;

secondly, in applying for the warrant; and

thirdly, executing the warrant at his Wellington address

are reviewable.

[2] It is pleaded on behalf of Mr Hager that each of those steps were unlawful or unreasonable in respects entitling Mr Hager to declarations that those steps were unlawful, and for orders for the return to him of property seized in the execution of the warrant. As an alternative to prompt return, Mr Hager seeks damages under s 21 of the Bill of Rights Act 1990 by virtue of the continued detention of his property.

[3] The relevant actions are alleged to have occurred in response to a complaint received by the Police that electronic records maintained by a blogger, Mr Cameron Slater, had been unlawfully accessed (hacked) without Mr Slater’s permission. A book entitled “Dirty Politics”, written by Mr Hager and published on 13 August
2014, contained material that reflected the product of the alleged hacking of Mr Slater’s electronic records. For this reason, Police inquiries in relation to Mr Slater’s complaint included a focus on Mr Hager. In the course of investigating the complaint, the Police decided to apply for a warrant to search Mr Hager’s premises in an attempt to obtain information that would identify, or help the Police identify, the person who had hacked Mr Slater’s electronic records.

[4] On 30 September 2014, District Court Judge I M Malosi issued the warrant sought by the Police. Judge Malosi was located at the District Court at Manukau at the time, hence the inclusion of the third respondent as a party to the proceeding.

[5] On 2 October 2014 the warrant was executed by a search conducted at Mr Hager’s Wellington property. A range of items was seized, including physical records, computers, CDs and USB sticks used for storing electronic information. Those items have been sealed and lodged with the Court, without the Police

undertaking any analysis of…

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.

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Details

Case: [2014] NZHC 3293
Decision Date: 17 December 2014

CaseChat Overview and Summary

Nicolas Alfred Hager, the applicant, sought a judicial review of a search warrant issued by Judge I M Malosi of the Manukau District Court on 30 September 2014. The warrant was executed at Hager's Wellington address on 2 October 2014. Hager alleged that the steps taken by the New Zealand Police in applying for, obtaining, and executing the warrant were unlawful or unreasonable. Hager sought declarations that the steps were unlawful, the return of his property, or damages. The case involved a complaint that electronic records maintained by a blogger, Mr Cameron Slater, had been unlawfully accessed. A book written by Hager, "Dirty Politics," published on 13 August 2014, contained material reflecting the product of the alleged hacking of Slater's electronic records. The Police decided to apply for a warrant to search Hager's premises in an attempt to obtain information that would identify the person who had hacked Slater's electronic records.

Dobson J addressed the issue of the scope of the Crown's obligations to provide documents in this judicial review. The Court considered that the test for discovery of documents in the litigation should govern the whole analysis of the scope of the Crown's obligations to provide documents. The Court found that requests under the Official Information Act 1982 and the Privacy Act 1993 were not appropriate in this case. The Court also rejected the argument that the duty of candour imposed on the Crown when responding to judicial review challenges extended the obligations on the Crown to provide discovery. The Court concluded that the relevant focus in the application for judicial review was the lawfulness of the steps taken by the Police. If the Police held personal information about Hager that was not relevant to the three steps that Hager sought to challenge, then it would not be appropriate to order the Police to discover it in this proceeding.

The Court also considered the issue of constraints on inspection of discovered documents. The Court justified case-specific constraints on access to the documents that it ordered the Police to discover, to protect the confidentiality of the specific investigation and more generally the nature of investigative techniques utilised by the Police. The Court imposed a condition that access to the further discovered documents would be confined to counsel on Hager's behalf, who were forbidden to disclose content or discuss it other than among themselves. The Court also reserved leave for counsel to apply to divulge particular content to their client or to experts, where the inability to do so materially impeded the taking of instructions in the preparation of Hager's case.

Lastly, the Court addressed the issue of arrangements for cloning the electronic records seized by the Police. The Court proposed that the cloning be done by an expert nominated by the Court, who would be required to complete all aspects of the cloning exercise without accessing any of the content of the electronic files. The Court reserved leave generally on the detail of the categories of documents it had defined as discoverable by the Police and also on the detail of arrangements for cloning, if Hager wished to pursue the proposal.

Orders