A (A Firm of Solicitors) v The District Court at Auckland

• Jurisdiction: New Zealand
• Judge: Wild J
• Judgment Date: 14 June 2012
• Neutral Citation: [2012] NZCA 246
• Docket Number: CA67/2012
• Court: Court of Appeal
• Date: 14 June 2012

Between

A (A Firm of Solicitors)

Appellant

and

The District Court at Auckland

First Respondent

and

New Zealand Police

Second Respondent

[2012] NZCA 246

Court:

Ellen France, Wild and Venning JJ

CA67/2012

IN THE COURT OF APPEAL OF NEW ZEALAND

Appeal against High Court's decision on judicial review of issuing of a search warrant by District Court (DC) under s44 Mutual Assistance in Criminal Matters Act 1992 (“MACMA) (search warrants) — appellant law firm claimed warrant was illegal — warrant requested by United Kingdom Serious Fraud Office (“UK SFO”) and served on a firm of solicitors in Auckland — principal of firm suspected of being involved in a fraudulent international trading scheme — whether issuing of search warrant amenable to judicial review — whether s44 MACMA statutory threshold met — whether warrant contained material misrepresentations without which would not have been issued — whether DC should have been advised that New Zealand Serious Fraud Office (“NZ SFO”) was to serve notice under s9 Serious Fraud Office Act 1990 (“SFOA”) (power to require production of documents) — whether person chosen to clone A's computer records should have been independent expert rather than employee of the NZ SFO — whether the warrant was sufficiently specific in terms of identifying material falling within its parameters.

Counsel:

S O McAnally and B M Hojabri for Appellant

H W Ebersohn and M H Cooke for Second Respondent

JUDGMENT OF THE COURT

A The appeal is dismissed.

B Order as set out in [97] of the Reasons of the Court prohibiting publication of various details.

C The appellant is to pay the second respondent costs for a standard appeal on a band A basis with usual disbursements.

REASONS OF THE COURT

(Given by Wild J)

Table of Contents

	Para No
Introduction	[1]
Factual background	[5]
Statutory framework	[19]
Availability and limits of judicial review	[28]
First question: Did the application by the police for a search warrant meet the requirements of s 44 such that the District Court could lawfully issue the warrant?	[32]
Second question: Did the application for the search warrant contain material misrepresentations such that the warrant could not have issued had it not done so?	[47]
Third question: Should the second respondent have disclosed to the District Court, when it applied for the warrant, that the NZ SFO was supplying assistance on the same matters at the request of the UK SFO and would serve notices on X, requiring him to attend a compulsory interview and deliver up the same documents, pursuant to s 9 of the Serious Fraud Office Act 1990 (SFOA)?	[57]
Fourth question: Would the warrant have issued, as it did, had the police disclosed that the NZ SFO was supplying assistance on the same matters at the request of the UK SFO and the person nominated, with the application for the warrant, to clone and search A's electronic records is an employee of the NZ SFO?	[69]
Fifth question: Was the warrant, as issued by the District Court, sufficiently specific in terms of identifying what material fell within its parameters?	[88]
Result	[94]
Non-publication	[97]

Introduction

1 The appellant (A) is a firm of solicitors. On 2 August 2011 a District Court Judge granted an application by the police for a search warrant. The warrant authorised the police to search A's offices for hard copy and electronic documents. The warrant was executed on 8–9 August 2011 by the police, assisted by the New Zealand Serious Fraud Office (NZ SFO).

2 A applied to the High Court for judicial review of the District Court Judge's decision to grant the warrant. 1 In a judgment delivered on 22 December 2011, Brewer J dismissed that application. 2 This is an appeal by A against that judgment.

3 We will deal with the appeal under the five main questions that it posed. Under each question we will outline what Brewer J decided and why, and then summarise the arguments put to us about that decision, before giving our answer to the question. In the course of doing that we will refer to the authorities relevant to each issue.

4 First, some factual background is needed, as is an outline of the relevant statutory scheme.

Factual background

5 On 10 January 2011 the Attorney-General received from the Serious Fraud Office of the United Kingdom (UK SFO) a request that New Zealand provide assistance under this country's Mutual Assistance in Criminal Matters Act 1992 (MACMA), in the form of search warrants and compulsory notices.

6 The request related to an investigation into so-called “boiler room” frauds perpetrated by the Price Stone Group. These frauds involved Madrid based salespeople purporting to be legitimate shareholders using pressure selling tactics to persuade United Kingdom investors to buy shares in a range of companies. The frauds had generated over USD 100 million from the sales of worthless shares to unsuspecting investors. The fraudsters had established an extensive global network of accounts through which the funds were “laundered”.

7 The United Kingdom Financial Services Authority (FSA) had issued alerts concerning the Price Stone Group in 2005 and 2006. Almost 1,000 complaints were made by investors to the FSA. Some 57 full statements had been taken from investor witnesses and a further 144 witness statement questionnaires prepared.

8 Seven of the people involved in running the boiler rooms had been charged in the United Kingdom. Investigations into other suspects were continuing in the United Kingdom. A Mr J had pleaded guilty in Hong Kong to charges of money laundering proceeds from the Price Stone Group and had been sentenced to five years and six months imprisonment.

9 X is a partner in A, the appellant firm of solicitors. The UK SFO's request detailed a longstanding association between X and individuals under investigation for suspected involvement in the fraud. The application described X as having:

… a longstanding association [with] the conspirators as an adviser, and advocate and intermediary with independent banks, civil litigator and a representative of those alleged to be involved in the conspiracy accused of criminal conduct.

The request stated that X had carried out the role of Group counsel, describing himself as “global legal counsel”, and providing advice to all tiers of the fraudulent enterprise.

10 The UK SFO request listed the crimes being investigated as fraud, obtaining money and property by deception, money laundering and corruption – all offences punishable by a term of two years or more imprisonment. The UK SFO application requested help in obtaining warrants to search A's premises and X's residence and to seize material relating to the investigation for use in criminal proceedings. It stated that the request was subject to coordination with the United Kingdom and Australian authorities in relation to the timing of the searches, and was “additionally subject to New Zealand's [laws] on legal professional privilege and any related exceptions for material relating to the furtherance of fraud or crime generally”. The request then summarised the material sought from the searches.

11 The UK SFO also requested that X be interviewed under compulsion in relation to his involvement with each of the suspects, defendants and other entities listed in the request to establish:

Again, that interview request was specifically made subject to New Zealand's laws on legal professional privilege.

• 1) His first engagement with each person, firm or entity;

• 2) The nature of his engagement with each person, firm or entity;

• 3) His knowledge, understanding or evidence of the role of each person, firm or entity as it relates to the fraud under investigation;

• 4) His knowledge, understanding or evidence as to the beneficial and legal ownership and control of each firm or entity.

12 The UK SFO made supplementary requests for assistance on 19 January and 18 April 2011. These added names to the lists of individuals or incorporated entities under investigation, added a further offence to those in respect of which evidence was sought, and provided some additional facts relating to one of the additional entities named, a firm of Australian lawyers.

13 On 15 February 2011 the Attorney-General emailed the officer managing the case at the UK SFO. That email was responded to by the UK SFO at length on 14 April. The 15 February email was not before Brewer J, but the 14 April response was. From that response, Brewer J inferred that the 15 February email raised queries about the propriety of or necessity for the searches. 3 In its 14 April response, the UK SFO withdrew its request for a warrant to search X's residence. It accepted that there may not be sufficient grounds to apply for that. The response stated:

A review has taken place as to the appropriate stance to take in relation to [X] but our position remains that we consider a search of [X's] business premises to be appropriate due [to] there being a real risk that [X] would not fully comply with a compulsory notice.

14 On 8 July 2011 the Attorney-General authorised the New Zealand Police to apply for a search warrant. The authorisation was in writing, addressed to two named police detectives. It recited the request from the UK SFO, listing the material sought and the individuals, firms and corporate entities under investigation. It also listed the seven individuals already charged. The authorisation concluded:

I AM SATISFIED:

• a) That the request relates to a criminal matter in the United Kingdom, namely a criminal investigation into an allegedly fraudulent investment scheme, involving charges of conspiracy to defraud by

  way of false representation, obtaining property by deception, obtaining...