Siemer and Others v Spartan News Ltd and Others

JurisdictionNew Zealand
CourtHigh Court
JudgeToogood J
Judgment Date11 December 2014
Neutral Citation[2014] NZHC 3175
Docket NumberCIV-2008-044-517
Date11 December 2014

[2014] NZHC 3175

IN THE HIGH COURT OF NEW ZEALAND

AUCKLAND REGISTRY

CIV-2008-044-517

Under the New Zealand Bill of Rights Act 1990

In the Matter of the Summary Proceedings Act 1957

and

In the Matter of the International Covenant on Civil and Political Rights

Between
V.R. Siemer and J.D. Siemer
First Plaintiffs
Spartan News Limited
Second Plaintiff

and

S Siemer
Third Plaintiff
and
K.S. Brown
First Defendant

and

M Palma
Second Defendant

and

A Lovelock
Third Defendant

and

Jane Thew
Fourth Defendant

and

Reece Sirl
Fifth Defendant

and

Julie Foster
Sixth Defendant

and

John Miller
Seventh Defendant

and

David Thomas
Eighth Defendant

and

Brett Otto
Ninth Defendant

and

Trevor Franklin
Tenth Defendant

and

John Taylor
Eleventh Defendant

and

Juergen Arndt
Twelfth Defendant

and

Kerwin Stewart
Thirteenth Defendant

and

The Attorney-General of New Zealand
Fourteenth Defendant

and

B J Reid
Fifteenth Defendant
Appearances:

CS Henry for the Plaintiffs (on all days exept 18 October 2013)

AM Powell and E Devine for the First to Fourteenth Defendants

V Casey for the Fifteenth Defendant

VR Siemer in person (on 18 October 2013 only)

Claim for damages following a search of residential premises following the uploading of a police affidavit to a website — affidavit contained details of police covert investigation — whether the application for the warrant adequately disclosed allegations of particular offending and whether it justified a search of the premises — whether the warrant was invalid because failed to disclose the date on which it was issued — whether the warrant was a general warrant and therefore invalid — whether the second plaintiff (a company) and third plaintiff (a child living with her parents) had standing to claim in trespass — application of immunities — whether the Detective Superintendent who procured the search warrant, the Attorney-General, and the Deputy Registrar were vicariously liable for the trespasses of the officers who carried out the search-whether restrictions on making calls during search had been unreasonable — whether the doctrine of trespass ab initio applied — whether there had been breaches of s 21 (unreasonable search and seizure), s22 (arbitrary arrest or detention) and s23 New Zealand Bill of Rights Act 1990 (rights of persons who are so arrested or detained).

Held: (1) Did the application adequately disclose allegations of particular offending? As the Court of Appeal held in Attorney-General v Dotcom an application for a search warrant had to make proper disclosure and a warrant had to be issued in respect of a particular offence. The warrant was authorised on the basis that there were reasonable grounds for believing a search would yield evidence in relation to the offences of wilfully attempting to obstruct, prevent, pervert or defeat the course of justice in New Zealand (s117(e) CrA 1) and/or conspiring to obstruct, prevent, pervert or defeat the course of justice in New Zealand (s 116 CrA). There were any number of ways to commit an offence under either s116 or s117 of the CrA, as the use of the expression to “obstruct, prevent, pervert or defeat the course of justice” in those sections made clear. They were broadly described crimes intended to cover a broad range of conduct.

The affidavit contained detailed background information setting out the investigation, the steps taken to identify the source of the disclosure, the implications of the disclosure and the basis on which it was concluded that Mr S had uploaded the affidavit use a computer at the local library. There was ample evidence on which the Deputy Registrar could form a reasonable belief that Mr S had committed either or both of the particular offences referred to in the application, and about the manner in which the offending occurred.

It took little more than plain logic for the Deputy Registrar to accept that there were reasonable grounds for believing that evidence of the offending would be found at Mr S' home. The warrant application contained sufficient relevant information to justify the Deputy Registrar's decision to issue the warrant.

(2) Date on search warrant: The omission of an identifiable date from a search warrant was significant in view of the requirement in s198(3) Summary Proceedings Act 1957 (“SPA”) that a search warrant had to authorise a search “within one month from the date thereof”. The plaintiffs submitted that the presence of a date on a search warrant was a matter of “critical substance”, and that its absence would render a subsequent search invalid.

Suggestions as to fabrication of a false warrant were rejected. L had demonstrated that the date discrepancies were due to his use of the computer template when producing the copy of the warrant. It was plain that the warrant contained the necessary information to meet the requirements of s198 SPA and that it was in valid form, including as to the date. That finding meant it was unnecessary to consider whether the document should be saved under s 204 SPA on account of the omission of a completed date.

It was evident, however, that the occupier copy of the warrant handed did not provide Mr S with all of the relevant information to which he was entitled. Among other things, that document contained a typewritten date of “19th day of February” but it did not show the year. That omission and other gaps in the occupier copy, although regrettable, could not affect the validity of the warrant itself. They might be relevant, however, to the issue of whether the search was conducted in an unlawful and unreasonable manner

(3) Was the warrant a general warrant and, therefore, invalid? The requirement that search warrants be “as specific as the circumstances allow” was designed to ensure that both the searchers and those whose premises were being searched understood, “with the same reasonable specificity”, the proper scope of the authorised search ( Tranz Rail Ltd v District Court at Wellington). The warrant had to contain sufficient detail both as to the alleged offending underlying its issuance and the items authorised to be searched and seized. It had also to authorise the search and seizure only of relevant, and not irrelevant, material.

The particulars provided in the application were not replicated in the warrant itself; it did not provide any indication that the alleged offence related to the unauthorised disclosure of a sensitive police document. Warrants had to be construed as a whole, however, so it was necessary to consider what other material there was which might assist in defining the offence.

The police officers who were instructed to conduct the search were sufficiently briefed to understand the nature of the offending so as to narrow the range of items which might legitimately be seized pursuant to the warrant. It might have been desirable for the warrant itself to have identified that the suspected offences related to the uploading of the affidavit. The warrant should also have identified the probable date or dates of the alleged offending. Taking the search warrant and the list of items sought as a whole, however the document contained sufficient information to enable a reasonable reader to understand the allegations about the offending and when it occurred.

A warrant had to be sufficiently specific about what could be searched for and seized so the occupier of the premises could understand, and if necessary obtain legal advice about, the permissible limits of the search. In the end, the question had to be whether, looking at the document as a whole, it was likely that anyone would be misled as to its scope and purpose. The purpose for the search had to be related to the offence or offences in respect of which evidence was sought.

The evidential connection between the items sought and the suspected offences was obvious. While the description of some of the items sought was wide and might possibly have given rise to the search and seizure of irrelevant material, the courts had to take a realistic and commonsense approach to attacks on search warrants. It was the broad picture, rather than individual factors, which was important. The warrant was not a general warrant but one directed towards locating evidence that would directly or indirectly make one or more of the factual elements of the alleged offences more likely. It was not invalid on the grounds of generality.

(4) Standing of second and third plaintiffs: The plaintiffs had not established any basis on which Spartan could found claims that were independent of the members of the S family. A company could sue for interference with its land or goods. However, it had to have been in possession of the land or the goods at the time of the trespass. Actual possession consisted of two elements – the intention to possess the land or thing and the exercise of control over it to the exclusion of others. In these proceedings, the plaintiffs proved the company's incorporation and the fact that it had its registered office at Clansman Terrace, but they did not present any evidence to show that the company had actual possession of any of the items taken, nor to show that it in fact operated in any way out of the address.

The S' daughter also did not have standing to sue in trespass to land as she did not have any right to exclusive possession of her parents' property. Nor had it been shown that she had ownership of the chattels in the house generally. On the balance of probabilities, however, she did have ownership of the things in her bedroom at the time of the search. She had standing to bring a trespass claim in respect of interference with those items and to sue for false imprisonment, but the other claims brought in her name had to be dismissed

(5) Immunities for tortious claims: The defendant police officers were...

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2 cases
  • Vincent Ross Siemer and Jane Dinsdale Siemer v Kevin Stanley Brown
    • New Zealand
    • Supreme Court
    • 20 April 2015
    ...that there are exceptional circumstances that justify taking the proposed appeal directly to the Supreme Court. 1 Siemer v Brown [2014] NZHC 3175. [3] Toogood J applied the settled law relating to recusal as set out in this decision in Saxmere Company Ltd v Wool Disestablishment Company Lim......
  • Siemer & Siemer v Brown & ORS
    • New Zealand
    • Supreme Court
    • 15 May 2015
    ...appeal directly to this Court against the decision was dismissed.2 An application for recall was also dismissed.3 1 2 3 Siemer v Brown [2014] NZHC 3175. Siemer v Brown [2015] NZSC Siemer v Brown [2015] NZSC 50. [2] The applicants applied for dispensation from the requirement to pay security......

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