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):

• 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 their contents. The Police have proposed separate proceedings to resolve appropriate protocols for differentiating information coming within the categories sought in the warrant from other information or items to which access would also be possible by virtue of the scope of items seized. That sorting process would also be expected to separately identify material in respect of which privilege of any sort could be claimed.

[6] Mr Hager’s application for judicial review is set down for a substantive hearing in March 2015. Mr Hager has raised concerns at what he considers to be inadequacies in the disclosure provided by the respondents, and these concerns have been pursued as a matter of urgency to facilitate orderly preparation for the substantive hearing. It is agreed that a prompt judgment is required.

[7] Mr Hager and the Police also disagree on arrangements for cloning all the electronic records seized pursuant to the warrant. I heard submissions on the competing proposals, and address them later in this judgment.

Click here to read the full court judgment.

ENDS

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