Siemer and Others v Spartan News Ltd and Others

• Jurisdiction: New Zealand
• Judge: Toogood J
• Judgment Date: 11 December 2014
• Neutral Citation: [2014] NZHC 3175
• Docket Number: CIV-2008-044-517
• Court: High Court
• Date: 11 December 2014

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

[2014] NZHC 3175

CIV-2008-044-517

IN THE HIGH COURT OF NEW ZEALAND

AUCKLAND REGISTRY

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).

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)

JUDGMENT OF Toogood J

Table of Contents	Paragraph Number
Introduction	[1]
Summary of the plaintiffs' claims	[6]
Recusal	[10]
The issues to be determined	[16]
Background facts	[17]
The application for the Clansman Terrace search warrant	[21]
The applicable principles of law	[28]
Was the warrant invalidly obtained because the application provided insufficient relevant information to justify it?	[37]
Did the application adequately disclose allegations of particular offending?	[37]
Did the application justify a search of the subject premises for evidence?	[42]
Conclusion as to sufficiency of information	[43]
Did the warrant disclose the date on which it was issued and, if not, does that render the warrant invalid despite s 204 of the SPA?	[44]
Conclusions on disclosure of date of issue on warrant	[62]
Was the warrant a general warrant and, therefore, invalid?	[65]
General warrants invalid – the plaintiffs' argument and the law	[65]
Did the warrant contain a sufficient description of the alleged offending?	[69]
Was the description of the items of which seizure was authorised sufficiently specific to provide reasonable limitations on the search of the premises and the seizure of private property?	[75]
Did the warrant purport to authorise the seizure of items not reasonably connected to the alleged offence or offences referred to?	[75]
Discussion	[81]
Conclusion that warrant was not invalid for generality	[86]
Was the warrant obtained in bad faith as a pretext for searching Mr Siemer's home and seizing his property for some ulterior purpose?	[87]
Overall conclusion on allegation that the search warrant was invalid	[91]
The plaintiffs' tort and NZBoRA claims	[92]
The evidence about what happened during the search	[93]
The standing of the second and third plaintiffs	[105]
Claims by Spartan News Limited	[107]
Claim by Stephanie Siemer for trespass to land	[109]
Statutory immunities	[110]
Immunities claimed by the Police officers	[111]
Immunity claimed by the Attorney-General	[117]
Vicarious liability of Detective Superintendent Lovelock, the Deputy Registrar and the Attorney-General	[119]
Detective Superintendent Lovelock	[121]
Deputy Registrar – tort claims	[122]
Deputy Registrar – NZBoRA claims	[127]
Conclusion – claims against Deputy Registrar dismissed	[131]
The Attorney-General	[132]
First cause of action – trespass to land	[138]
The claims against the defendants in the house during the search	[139]
Conclusion on claim for trespass to land	[140]
Second cause of action – trespass ab initio	[141]
Does the doctrine of trespass ab initio apply?	[144]
Conclusion on claim for trespass ab initio	[147]
Third cause of action – breach of privacy	[150]
Conclusion on claim for breach of privacy	[152]
Fourth cause of action – trespass to goods	[154]
Conclusion on claim for trespass to goods	[156]
Fifth cause of action – conversion by taking and/or detention	[158]
Conclusion on conversion claim	[161]
Sixth cause of action – false imprisonment	[162]
Conclusion on false imprisonment claim	[165]
Seventh cause of action – intimidation	[166]
Attorney-General not vicariously liable in tort	[169]
Eighth cause of action – breaches of ss 21, 22 and 23 NZBoRA	[170]
Was the search, considered as a whole, unreasonable?	[172]
Conclusion on NZBoRA claims	[179]
Conclusions on the pleaded immunities	[182]
Summary of findings and result	[183]
Costs	[185]

Introduction

1 At 7:00 am on 21 February 2008, Kevin Siemer left his family's home in Clansman Terrace, Gulf Harbour on Auckland's North Shore and headed off to school. As he went, a number of Police officers arrived. They had a search warrant. Three Police officers led by Detective Senior Sergeant Stan Brown entered the dwelling by the closed but unlocked front door. The Detective Senior Sergeant loudly announced their presence. There was no response initially but as the Police officer continued to call out and began to walk upstairs, Mr Vincent Siemer appeared from the main bedroom in his pyjamas. Mrs Jane Siemer and a then 13-year-old daughter, Stephanie, also awoke.

2 A short time later, six other Police personnel (including two digital forensic analysts from the Police Electronic Crime Laboratory) also entered the dwelling. They began to search the house and to seize property. Later in the morning three more Police officers arrived to assist. The search occupied a total of more than seven hours, although not all Police personnel were present throughout. The last of the Police officers departed at around 1:30 pm.

3 During the search, the Police prevented the members of the Siemer family present from moving about the house freely. Mr Siemer complains that he was forced to remain in his pyjamas for several hours and that he was prevented from making personal phone calls. Mrs Siemer alleges that she was told that if she left the house to take Stephanie to school she was not to talk to anybody and must return home immediately.

4 The Police seized a large number of items of personal property belonging to members of the Siemer family, including cell phones, CDR and DVD discs, memory sticks, printers, fax/scan machines, computers and keyboards, computer hard drives, pieces of paper containing handwritten notes, a library card, and items of male clothing. Many of the items were returned within a few days; some of them weeks later; and others in September 2012, well over four years after the seizure. Two USB memory sticks have been retained in Police custody.

5 None of the members of the Siemer family was subsequently charged with any offence. Mr and Mrs Siemer and Stephanie, and a company which has its registered office at the Clansman Terrace address, have claimed damages from the senior Police officer who applied for the search warrant; all of the Police officers who have been identified as being at the house during the search; the deputy registrar of the Auckland District Court who issued the warrant; and the Attorney-General.

Summary of the plaintiffs' claims

6 The plaintiffs' claims are founded on three broad propositions:

• (a) The warrant should not have been issued because the application did not contain sufficient relevant information; did not adequately disclose allegations of offending; and did not justify a search of the premises for evidence.

• (b) The warrant was invalid because –

  • (i) it did not disclose the date on which it was issued (it is alleged the day and month were stated but not the year) so it was not possible to determine by when the warrant was required to be executed;

  • (ii) it was a general warrant in that it did not contain a sufficient description of alleged offending; the description of the items of which seizure was authorised was not sufficiently specific to provide reasonable limitations on the search of the premises and the seizure of private property; and it purported to authorise the seizure of items not reasonably connected to the alleged offence or offences referred to; and

  • (iii) it was obtained in bad faith as a pretext...