Hager v Attorney-General

JurisdictionNew Zealand
CourtHigh Court
JudgeClifford J
Judgment Date17 December 2015
Neutral Citation[2015] NZHC 3268
Docket NumberCIV-2014-485-11344
Date17 December 2015

[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

Nicholas Alfred Hager
Her Majesty's Attorney-General
First Respondent
The New Zealand Police
Second Respondent
The Manukau District Court
Third Respondent

J G Miles QC, F E Geiringer and S J Price for Applicant

B Horsley and K Laurenson for First and Second Respondents

Application for judicial review proceedings of relating to the lawfulness of a search warrant issued by the District Court allowing the police to search the home of a journalist, and of the search carried out pursuant to that warrant — application had not referred to the possibility of a claim of journalistic privilege under s68 Evidence Act 2006 (EA) (Protection of journalists' sources) — respondent said that this did not need to be drawn to the Judge's attention because it was covered by the provisions in Part 4 Subpart 5 Search and Surveillance Act 2012 (SSA) (privilege and confidentiality) — claim that warrant as issued was too wide in its terms — relevance of common law duty of candour — whether the effect of subpart 5 SSA was that issues of journalistic privilege did not have to be brought to the attention of the Judge for the consideration of a claim to privilege — whether the police had complied with their duty of candour — whether the terms of the warrant were too broad so that it amounted to a general warrant.

Held: Special rules relating to candour applied to all without notice applications: there was a duty of the fullest disclosure to the Court of all facts relevant to the application. The duty of candour owed to the court in an applicant for a search warrant was a particular application of those general principles ( Tranz Rail Ltd v Wellington District Court).

Section 98 SSA (Application for search warrant) rationalised the law on applications for search warrants. However, the ongoing relevance of the Tranz Rail decision was confirmed by the Supreme court (SC) in Beckham v R, where the Court emphasised the importance of the duty of candour. It was clear that the common law duty of candour was extensive and demanding. A failure to discharge that duty, notwithstanding good faith, could render a warrant invalid or unlawful, and the subsequent search unlawful.

Subject to Subpart 5 SSA (privilege and confidentiality), the omission from the application for the warrant of any reference to the very important issues raised by applications for media warrants would have rendered the warrant fundamentally unlawful. That conclusion flowed inevitably from the TVNZ decision, and from the presumptive right now found in s68 EA.

Subpart 5 SSA recognised in s136 SSA (Recognition of privilege) by reference to the scheme of the EA, a range of privileges in the context of the exercise of enforcement powers. The requirement in this section for questions relating to rights under s68 EA to be dealt with in the HC confirmed the importance of those rights.

The background to s68 EA confirmed the importance of its protections, as well as the ongoing importance of the principles of freedom from unreasonable search and seizure and freedom of expression reflected in the CA's decision in TVNZ. In the context of enforcement powers, the relevant provisions of the SSA were to be understood similarly: they dealt with the specific protection provided by s68 EA which reflected the more general concerns with media warrants. Those concerns were of continuing relevance, and any unavailability of the SSA procedures did not obviate the need for them to be considered when media warrants were issued. Parliament did not intend the enactment of those provisions to have the effect that a Judge issuing a media warrant that might involve journalistic privilege should not be explicitly made aware of that fact, and of the underlying principles and issues relevant in that context.

If nothing else, where a media warrant was applied for, the judge should be satisfied not only that the police were themselves aware of those issues, but also that they had appropriate procedures in place in practice to facilitate any anticipated claim of privilege and to ensure protection of materials seized. There was a possibility that, properly informed, the judge could well conclude that the issue of the warrant was simply not justified in the circumstances, irrespective of the procedures provided by the SSA.

The SC in Wilson v R highlighted the need for judicial oversight the search warrant process. Therefore, the failure of the police to disclose in the application for the warrant the s68 EA issue, and more generally the principles and issues relating to media warrants identified by the Court of Appeal in TVNZ, was a material failure to discharge the duty of candour.

The seized material contained evidence of the identity of other confidential sources which was both protected by s68 EA and, also, irrelevant for the investigation the police were conducting. This showed the chilling effect of the issue of the warrant and its execution needed to be seen in that context, and those matters also drawn to the issuing Judge's attention.

The warrant was fundamentally unlawful. It followed that the search was also unlawful. There was no need to consider the NZBORA unreasonableness assessment, given the very clear view reached on the duty of candour issue. However, this was, however, an intrusive search not only of H and W's home but also of H's place of work. There was therefore some reservation as to the reasonableness of the way in which the warrant was executed, that is the way in which the search was undertaken.

The CA in Tranz Rail noted that for centuries the law has “set its face against general warrants and held them to be invalid.” These comments were recently affirmed by the Supreme Court ( Dotcom v Attorney-General) in respect of information stored on computers. The warrant did not explicitly mention computers, let alone any particular computer or device. The SC in Dotcom noted the need for a warrant to give specific authorisation for a computer to be searched in order to identify and seize the data that it was believed was evidence of commission of an offence.

There was also the question of whether the evidential material the warrant allowed to be seized was too broad. There were difficulties with the generality of some categories which incorporated material that was likely to be both confidential and irrelevant to the investigation. The police also claimed a reasonable belief that they would discover evidence of the source's identity. That reasonable belief could be better characterised as a hope. As these were intensely factual questions, they were not appropriate to be determined on the basis of uncontested affidavit evidence. Judicial review was not well suited to determining contested questions of fact, particularly where those questions of fact were so central to the legal issues to be determined. Those aspects of H's application could not be considered.

The approach the police took to enabling H to claim privilege was not the preferred one. It was only during the second telephone conversation that the police asked H if he was claiming privilege. That was not the type of facilitation that the SSA anticipated. Rather, when they discovered H was not at his home, the police should have initiated contact with H, told him that the search, if successful, of necessity would disclose evidence protected by s68 EA, and have positively given him the opportunity to claim privilege.

Application granted for a declaration that the warrant and the search were fundamentally unlawful.


Table of Contents





Mr Hager's claim – an overview






Is judicial review appropriate?


A fundamentally unlawful warrant?


Did the police comply with their duty of candour?


The duty of candour


The application for the Warrant


The adequacy of the application for the Warrant


Section 68 and the protection of journalists' sources


The role of judges




Warrant unduly broad?


Other challenges to the Warrant


An otherwise unlawful search?


A final comment





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.


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.


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...

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