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Chief Executive of the Ministry of Fisheries v United Fisheries Ltd [2010] NZCA 356; [2011] NZAR 54 (6 August 2010)

Last Updated: 13 January 2012


IN THE COURT OF APPEAL OF NEW ZEALAND

CA314/2009 [2010] NZCA 356

BETWEEN THE CHIEF EXECUTIVE OF THE MINISTRY OF FISHERIES
Appellant


AND UNITED FISHERIES LIMITED
First Respondent


AND UFL CHARTERS LIMITED
Second Respondent


Hearing: 1 June 2010


Court: Glazebrook, Ellen France and Baragwanath JJ


Counsel: A M Powell and K B Campbell for Appellant
F M R Cooke QC, J E Standage and M Sullivan for Respondents


Judgment: 6 August 2010 at 3pm


JUDGMENT OF THE COURT

A The appeal is allowed.

  1. The judgment of the High Court and the order for costs in that Court are set aside.
  1. We remit the case to the High Court with the directions contained at [80].
  1. We make no order as to costs in this Court or for costs to date in the High Court.

____________________________________________________________________

REASONS


Baragwanath J (dissenting in part) [1]
Glazebrook and Ellen France JJ [74]


BARAGWANATH J


Table of Contents
Para No

Factual and legal context [3]
Entry, search and seizure: the statute [8]
Entry, search and seizure: the facts [9]
Background to the searches [9]
Grounds for belief in commission of offence [10]
Trip 1 [11]
Trip 2 [13]
Trip 3 [15]
First issue: were there grounds for belief that evidence relating to the
commission of an offence would be found at United’s premises? [17]
The searches and seizures [23]
The grounds of belief required of a fisheries officer
proposing to undertake a search and whether the officers met
the standard set by s 199(2) [25]
The judgment [26]
Submissions for United [30]
Discussion [31]
Second issue: was the search carried out lawfully? [46]
Third issue: relief [65]
Decision [71]

[1] Claiming to exercise statutory powers, officers of the Ministry of Fisheries searched without warrant both land-based premises of the respondents United Fisheries Ltd (UFL) and UFL Charters Ltd (UFLCL)[1] (together United) and also the fishing vessel FV Kapitan Rusak, authorised to fish under UFLCL’s permits in two adjoining quota management areas (QMAs). They suspected that the vessel had been engaged in illegal “trucking”: taking fish in one QMA but declaring it had been caught in another. Following the search, the master of the vessel and the manager of the onboard factory each pleaded guilty to three charges of making false or misleading statements in statutory returns.[2] UFLCL, as holder of the permits under which the fishing was performed, admits that, unless it can establish the possible defence later mentioned,[3] it is both vicariously liable for the master’s completion of false returns while at sea and strictly liable in relation to the incorrect statutory returns it filed based on the master’s information. But it supports the decision of Mallon J in the High Court on the respondents’ application for judicial review,[4] that each search was unlawful. This appeal is from that decision.
[2] There are three issues. The first concerns the grounds of belief required of a fishery officer proposing to undertake such a search and whether the officers met the standard set by s 199(2) of the Fisheries Act 1996. The second is whether in terms of the Fisheries Act and the New Zealand Bill of Rights Act 1990 the search was carried out lawfully. The third concerns the relief to be granted by this Court.

Factual and legal context

[3] New Zealand controls its fisheries resource by means of the quota management system (QMS) now contained in the Fisheries Act. It provides in relation to each species of fish (“stock”), in every QMA for that stock, a total allowable catch, shares in which are allocated to those who have bought or otherwise acquired their interest. Such shares entitle the holder to a form of catching right called Annual Catch Entitlement (ACE) which can be bought and sold independently of quota shares.
[4] UFLCL owns ACE in respect of ling in the Southland (LIN5) and Sub-Antarctic (LIN6) QMAs. It holds permits to take almost 50 tonnes in the LIN5 QMA and 245 tonnes in LIN6. Because the catch yield in LIN5 makes it the favoured area for trawling operations, ACE in that QMA is more expensive than in LIN6.
[5] As permit holder UFLCL authorised the Ukrainian operators of the Kapitan Rusak to fish under the authority of its permits. But by the Fisheries (Reporting) Regulations 2001 the permit holder is required itself to submit to the Ministry in respect of such fishing activity three types of return:

(a) a daily trawl catch effort and processing return (TCEPR);[5]
(b) a catch landing return (CLR);[6]
(c) a monthly harvest return (MHR).[7]

If trucking has occurred each return will necessarily contain misleading statements.

[6] Section 230 of the Fisheries Act states:

Neglect or refusal to supply particulars, and improper divulging of information

(1) Every person commits an offence who—

...

(b) makes any false or misleading statement, or omits any material information, in any communication, application, record, or return prescribed by or in accordance with this Act, or required for its administration.[8]

Liability for such conduct is strict[9] but subject to a narrow affirmative defence that a conviction would be repugnant to justice.[10] UFLCL accepts that it is unlikely to succeed in such a defence.

[7] Section 231 creates the more serious offence of knowingly making a false statement.[11]

Entry, search and seizure: the statute

[8] Powers of entry, search and seizure are conferred by the following sections of the Fisheries Act (emphasis is added):

199 Powers of entry and search

(1) In the course of the enforcement and administration of this Act, a fishery officer may, at any reasonable time,—

(a) stop, enter, or pass across any land in order to enter and examine any vessel..., or enter and examine any premises or place, or examine any record, document, article, and any gear, apparatus, device, or contents of any kind therein:

....

(2) If a fishery officer believes, on reasonable grounds,—

(a) that an offence is being or has been committed against this Act; and

(b) that—

(i) any fish ... or thing used or intended to be used in contravention of this Act; or

(ii) any record or information required by or under this Act to be kept, completed, or provided; or

(iii) any article, record, document, or thing which there is reasonable ground to believe will be evidence as to the commission of an offence against this Act,—

may be concealed or located or held in any vessel, vehicle, conveyance of any kind, premises, place, parcel, package, record, or thing—

then, for the purpose of the enforcement of this Act, that officer may at any reasonable time enter or pass across any land in order to enter, examine, and search any such premises or place, or any such vessel, vehicle, or conveyance of any kind (by stopping or opening where necessary), and may examine and search (by stopping or opening where necessary) any such parcel, package, record, or thing.

A fishery officer may detain any vessel, vehicle, conveyance of any kind, parcel, package, record, document, article, gear, apparatus, device, container, fish, aquatic life, seaweed, or thing for such period as is reasonably necessary to enable the fishery officer to carry out an examination or search under this section.

206 Power to take copies of documents

(1) In exercising powers under this Act, a fishery officer may—

(a) make or take copies of any record or document, and for this purpose may take possession of and remove from the place where they are kept any such record or document, for such period of time as is reasonable in the circumstances:

(b) if necessary, require a person to reproduce, or assist the fishery officer to reproduce, in a useable form, information recorded or stored in a document.

...

(2) Any documents to which section 198A of the Summary Proceedings Act 1957 applies that are copied by a fishery officer under this section shall be dealt with in accordance with section 198A of that Act, and the provisions of that section, with any necessary modifications, shall apply accordingly.[12]

207 Powers of seizure

(1) A fishery officer may seize—

...

(c) any article, record, document, or thing which he or she believes on reasonable grounds is evidence of the commission of an offence against this Act.

...

(3) Any documents to which section 198A of the Summary Proceedings Act 1957 applies that are seized by a fishery officer under this section shall be dealt with in accordance with section 198A of that Act, and the provisions of that section, with any necessary modifications, shall apply accordingly.

Document is defined by s 2 as including:


(b) any information recorded or stored by means of any tape-recorder, computer, or other device, and any material subsequently derived from information so recorded or stored:

Entry, search and seizure: the facts

Background to the searches

[9] Mr John Robinson, the fishery officer who led the search of United’s premises, deposed to the basis upon which he believed:

Grounds for belief in commission of offence

[10] LIN5 embraces the sea to the southwest of the South Island, extending to the western limit of New Zealand’s exclusive economic zone (EEZ). Its southern boundary forms the northern boundary of LIN6, which continues south to the southern limit of the EEZ. There was evidence of three “trips” or voyages of the Kapitan Rusak to those QMAs.

Trip 1

[11] In late 2007 the Ministry had received information from the skipper of another vessel, the Paerangi operated by Sealord, which was fishing on the Auckland Islands shelf to the south of Stewart Island in the same area as the Kapitan Rusak. He alleged that the Kapitan Rusak had been trawling on a ling tow (area where trawling for that stock is performed) so well known for good captures as to be termed the “king clip”. It is situated in LIN5 immediately north of a patch of ground too rough to trawl the bottom, which marks the physical boundary between LIN5 and LIN6.
[12] The Paerangi reported the Kapitan Rusak as fishing in LIN5 for 95 per cent of the time and in LIN6 only for a single tow on three occasions. This report was consistent with the Vessel Monitoring System (VMS) data sent directly from the Kapitan Rusak’s transponder to the Ministry over the period. In LIN5 there had been 55 ling target draws in 18 days which were reported as resulting in a poor catch of only 15 tonnes; in LIN6 only six trips involving seven short single tows and two trans-boundary tows were reported as yielding no less than 77.5 tonnes.

Trip 2

[13] On trip 2 there was a Ministry of Fisheries observer on board. He was aware that UFLCL’s ACE included 245 tonnes in LIN6 and only 50 in LIN5.
[14] The observer reported that the figures recorded by the crew in a hard covered red exercise book kept in the factory showed only 6 per cent of the ling as taken in LIN6 and 94 per cent as taken in LIN5. But the record submitted to the Ministry recorded 65 per cent (61.3 tonnes) as taken in LIN6 and only 35 per cent (33.1 tonnes) in LIN5.

Trip 3

[15] The VMS recorded that on trip 3 the vessel was active about 90 per cent of the time in LIN5 and only 10 per cent of the time in LIN6, which at the time the search exercise was planned was expected to result in further misreporting.
[16] Mr Cooke QC accepted that the Ministry had reasonable grounds to believe that reporting offending had been committed following illegal trucking. His challenge, accepted by the Judge, was to the Ministry’s claim to reasonable grounds for belief that evidence “as to”[13] the commission of an offence would be found at United’s premises.

First issue: were there grounds for belief that evidence relating to the commission of an offence would be found at United’s premises?

[17] United’s premises are at 50–58 Parkhouse Road, Christchurch. UFL is directed by André and Kypros Kotzikas. Its sole shareholder is United Fisheries Holdings Ltd. UFLCL is the deep sea charter company extension of the United group and shares the same address and directors. United Fisheries Holdings Ltd is again the sole shareholder. UFLCL is responsible for ensuring the correct completion and lodgement of returns to the Ministry of Fisheries. It includes the TCEPRs, the CLRs and MHRs.[14]
[18] I later detail the reasons why I consider it was reasonable to believe that, given misreporting, evidence “as to” trucking offences would be found on the United premises. Given both the undisputed fact of trucking by those fishing under United’s permits and the way in which United’s operations were conducted, such conclusion is inevitable.
[19] United’s business was a major one. The Kapitan Rusak is a Lyttelton-based Ukrainian stern trawler chartered to UFLCL and fishes against UFLCL’s fishing permit. The vessel is 104 metres in overall length and able to operate in the sub-Antarctic waters to the south of New Zealand. A document prepared by the Ministry in preparation for the search, which it termed “Operation Phantom”, recorded that the vessel had 79 crew members. In fact it has a dual crew which works a six months on/six months off roster. The report of the prosecution of the master and factory manager recorded the vessel’s value as $9 million. The size of its operation may be gauged by the quantity of fish involved in the charges: at least 247 tonnes from LIN5 while the proceeds of the 116.55 tonnes said to come from LIN6 realised $390,000. That evidence, although emerging after the event, is mentioned as giving an indication to non-specialists of how the potential search must have appeared to Mr Robinson, an expert fisheries officer with long experience of the industry.
[20] It was to be expected that United, which through UFLCL owned the permit under which the Kapitan Rusak fished, would exhibit a keen interest in the catch which, under its contractual arrangements, would be marketed by United. At the least, evidence of its enhanced sales and revenue resulting from the trucking offences would be evidence “as to” that offending which, in terms of s 199(2) might “be ... located or held in ... [the premises of United]”. But the evidence goes further than that.
[21] The observer on the second trip had noted that the Kapitan Rusak personnel recorded in the red exercise book tow by tow processing information. That might be expected to be found either on the vessel or at United’s premises.
[22] Mr Robinson gave expert evidence of what other items he expected would be found on the premises. It is outlined at [42]ff below.

The searches and seizures

[23] When the Kapitan Rusak arrived in Lyttelton on 5 November 2008 it was searched by Ministry officers. Shortly after, officers searched United’s premises and cloned substantial portions of its central computer. They also seized:

all from the central server at the United premises.

[24] The seized computers were cloned in their entirety and returned.

The grounds of belief required of a fisheries officer proposing to undertake a search and whether the officers met the standard set by s 199(2)

[25] The first issue turns on the construction and application of s 199(2) of which I repeat the essential parts:

(2) If a fishery officer believes, on reasonable grounds,—

(a) that an offence is being or has been committed against this Act; and

(b) that—

...

(iii) any article, record, document, or thing which there is reasonable ground to believe will be evidence as to the commission of an offence against this Act,—

may be ... located ... in any vessel...[or] premises...

... that officer may... enter or pass across any land in order to enter, examine, and search any such premises... any such vessel... and may examine and search ... any such parcel, package, record, or thing.

The judgment

[26] The Judge reasoned that, while search and seizure powers facilitate the important public interest in investigating suspected offending and bringing offenders to justice, personal privacy and property rights must be balanced against it. In cases where a search warrant is needed the courts have imposed a requirement of specificity both of the grounds for seeking the warrant and of the terms of the warrant. She held that a similar standard is to be applied to searches without warrant.
[27] United did not dispute that in terms of s 199(2)(a) there were reasonable grounds to believe that an offence against the Act had been committed. But the Judge accepted United’s submission that s 199(2)(b) was not satisfied: that there were no reasonable grounds to believe that any article, record, document, or thing which there was reasonable ground to believe would be evidence as to the commission of an offence against the Act might be located in the vessel or the United premises.
[28] In the following passages of the judgment emphasis is added. The Judge considered that the evidence failed to:

[65] ... identify in any clear way the kind of records or documents which the Ministry believes will be evidence of offending and may be located at United Fisheries’ premises. The Operation Phantom document identifies some specific kinds of documents – briefing notes, TCEPR books, compliance contracts and communications. It also more generally refers to office computers. It does not identify why it is believed that any of these documents will be evidence of offending. The mission is also stated in general terms – that is “[to] gather evidence” of the offending. I agree with United Fisheries that this is not evidence of the kind of specific briefing described in Tranz Rail.[15] There is also no mention in this document of how legal privilege is to be protected.

[65] Mr Robinson’s evidence is similar. Some specific kinds of documents are referred to but these are described in a non-exhaustive way (Mr Robinson says “includes”) and further Mr Robinson more generally refers to “and both written and electronic records”.... This non-exhaustive and general description is consistent with his evidence as to what he told Mr Kotzikas .... Mr Robinson’s evidence does provide grounds for a belief as to why the documents he refers to will be located at United Fisheries but he does not explain why it is believed on reasonable grounds that these documents will be evidence of the offending.

[67] An exception to this is Mr Robinson’s reference to the red book. He discusses the observer’s reference to a red book in which tow by tow information was kept and also expresses the view that the United Fisheries premises, as the permit holder, is one of the places where the book may be located. United Fisheries says that Mr Robinson does not explain why it is believed the red book will be at United Fisheries’ premises. However I accept Mr Robinson’s evidence that if it is not on the vessel then the other place it may be found is at United Fisheries’ premises. The basis for a search for this book is in my view made out.

[68] If there were an issue as to where the Kapitan Rusak had been fishing then the Ministry could search United Fisheries’ premises for its records about that. However, I am told that the Ministry already has its own (accurate) information as to the vessel’s location at any point in time. It seems unlikely that the search was conducted to find accurate records about where the vessel had been fishing.

[69] Mr Robinson says that communications between the vessel and the shore as to the location and species and quantity of fish caught are vital in the fishing industry. This provides a basis for a belief that such communications may be located at United Fisheries premises. But Mr Robinson does not say why it is believed these communications will be evidence of the offending. If there was a basis for a reasonable belief that United Fisheries was complicit in the offending then there could be a reasonable belief that the communications will be evidence of the offending. However Mr Robinson goes only as far as to say that, because it was relatively easy to analyse the records which United Fisheries had access to, it was either complicit “or” negligent. If it was the latter then it is not clear why it is believed that the communications will be evidence of the offending, beyond the evidence as to the vessel’s location available from the real time recording and the information as to what was caught as recorded in the red book and/or the returns.

[29] The Judge added:

[72] I agree with the Ministry that the cloning is not the search (although it is copying and whether there is power to do this is discussed below) and it is relevant to consider what will be searched for on that clone. I also accept that a key word search may be less intrusive in some ways than a paper search. However it also may enable a more accurate and thorough search across a far greater number of documents and, as United Fisheries says, it is more intrusive as to the information it enables the searcher to access (such as, providing information as to previous versions of documents and the number of times they were accessed). But, in any event, the search must still be confined to records or documents that are believed will be evidence of the offending. Mr Smith’s evidence indicates that the search will be for anything relevant that may be found, rather than with anything specific in mind. I accept that there are difficulties in knowing in advance how things will be described and filed and that flexibility in search terms is therefore necessary. But I am not persuaded on the evidence that the circumstances did not enable there to be a search focussed on particular kinds of records that are believed will be evidence of the offending – such as drafts of returns, or correspondence or communications concerning the catch (if it is believed on reasonable grounds that this will be evidence of the offending).

[73] I therefore do not accept the Ministry’s submissions that it was sufficient that the search was intended to be and will be restricted to documents concerning the fishing activities of the Kapitan Rusak for the fishing years at issue. It was necessary for the search to be confined to documents or records for which there were reasonable grounds to believe would be evidence of offending.

Submissions for United

[30] Mr Cooke submitted that the Judge’s reasons were supported by the authorities and should be upheld.

Discussion

[31] I would accept Mr Cooke’s submission, endorsed by the Judge, that in striking the balance between the public interest in investigating suspected offending and protecting privacy and property rights great care is required. Judicial notice may be taken of the ubiquity of computer use across the entire range of expression, from the most sensitive personal information to the least confidential. Whereas the former might once have been confided to a personal diary or records stored in a locked safe reliance is now placed on the security systems of the computer. The values protected by the decisions in Auckland Medical Trust v Taylor[16] and Rosenberg v Jaine[17] are potentially more vulnerable in the computer age and require modern techniques to vindicate them.
[32] Nor, despite the Crown’s submissions to the contrary, do I disagree with the Judge’s recourse to authorities construing other statutes. She relied in particular on the search warrant cases R v Sanders,[18] Television New Zealand Ltd v Attorney-General,[19] Tranz Rail Ltd v Wellington District Court[20] and A Firm of Solicitors v District Court at Auckland.[21] I add the most recent decision is Avowal Administrative Attorneys Ltd v District Court (North Shore).[22] Where I join issue with the Judge is in their analysis and application.
[33] The fact that ss 206–207 of the Fisheries Act import specific reference to s 198A of the Summary Proceedings Act 1957, albeit limited to the topic of documents removed from solicitors’ offices, indicates that Parliament has seen a relationship between the two sets of statutory powers, even though in s 199 of the Fisheries Act it has employed rather different language from that of s 198 of the Summary Proceedings Act and thus indicated that the two are different.
[34] I accept that the standard of specificity of belief required of a fishery officer exercising jurisdiction under s 199(2)(b)(iii) may be expressed in the general language used to measure the validity of a search warrant in Tranz Rail, on which the Judge relied:[23]

A search warrant is a document evidencing judicial authority to search. That authority must be as specific as the circumstances allow.

[35] But circumstances are manifold. It is more important in this sphere than in many others to recall that judgments are to be read in context.[24] The point was well stated by Lamer J in a passage endorsed by a later Supreme Court of Canada:[25]

Searches are an exception to the oldest and most fundamental principles of the common law, and as such the power to search should be strictly controlled. It goes without saying that the justice may sometimes be in a poor position to assess the need for the search in advance. After all, searches, while constituting a means of gathering evidence, are also an investigative tool. It will often be difficult to determine definitively the probative value of a particular thing before the police investigation has been completed. Be that as it may, there are places for which authorization to search should generally be granted only with reticence and, where necessary, with more conditions attached than for other places. One does not enter a church in the same way as a lion’s den, or a warehouse in the same way as a lawyer’s office. One does not search the premises of a third party who is not alleged to have participated in the commission of a crime in the same way as those of someone who is the subject of such an allegation ...

For the later Court Sopinka J added:[26]

In order to take account of the various factors affecting the balancing of the two interests, the authorizing judge must be empowered to consider all the circumstances. No set of criteria will always be determinative or sufficient to override the right of the individual to privacy. It is imperative, therefore, that a sufficient degree of flexibility be accorded to the authorizing officer in order that justice be done to the respective interests involved.

[36] In New Zealand the statutory formulae differ; they are the starting point for decision-making. The following schedule describes a spectrum which diminishes in scope of discretion from top to bottom. The Commissioner of Inland Revenue possesses authority to enter without warrant any premises other than a private dwelling; so too does a fishery officer under s 199(1) until the point where a search is required, when the reasonable grounds test of subs (2) must be satisfied. The Serious Fraud Office Act employs the test “may be relevant”; the Summary Proceedings Act requires reasonable belief that there actually is something that may reasonably be believed will be evidence; the Commerce Act considered in Tranz Rail imposes the very high standard of necessity.
Tax Administration Act 1994, s 16(1)
Notwithstanding anything in any other Act, the Commissioner or any officer of the Department authorised by the Commissioner in that behalf shall at all times have full and free access to all lands, buildings, and places, and to all books and documents, whether in the custody or under the control of a public officer or a body corporate or any other person whatever, for the purpose of inspecting any books and documents and any property, process, or matter which the Commissioner or officer considers necessary or relevant for the purpose of collecting any tax or duty under any of the Inland Revenue Acts ...
(Emphasis added.)
Arms Act 1983, s 61(1)
If any commissioned officer of Police has reason to suspect that there is in any building, aircraft, vessel, hovercraft, carriage, vehicle, premises, or place any firearm, airgun, pistol, imitation firearm, restricted weapon, ammunition, or explosive in respect of which any offence against this Act or any indictable offence has been or is about to be committed or which may be evidence of any such offence, the commissioned officer, or any member or members of the Police authorised by him in writing, may—
(a) Enter any such building, aircraft, vessel, hovercraft, carriage, vehicle, premises, or place, by force if necessary, and either by day or night, and search the same or any part thereof; and
(b) Seize any firearm, airgun, pistol, imitation firearm, restricted weapon, ammunition, or explosive found therein and detain the same.
(Emphasis added.)
Fisheries Act 1996, s 199
(1) In the course of the enforcement and administration of this Act, a fishery officer may, at any reasonable time,—
(a) stop, enter, or pass across any land in order to enter and examine any vessel..., or enter and examine any premises or place, or examine any record, document, article, and any gear, apparatus, device, or contents of any kind therein:
....
(2) If a fishery officer believes, on reasonable grounds,—
(a) that an offence is being or has been committed against this Act; and
(b) that—
...
(iii) any article, record, document, or thing which there is reasonable ground to believe will be evidence as to the commission of an offence against this Act,—
may be concealed or located or held in any vessel, vehicle, conveyance of any kind, premises, place, parcel, package, record, or thing—
then, for the purpose of the enforcement of this Act, that officer may at any reasonable time enter or pass across any land in order to enter, examine, and search any such premises or place, or any such vessel, vehicle, or conveyance of any kind (by stopping or opening where necessary), and may examine and search (by stopping or opening where necessary) any such parcel, package, record, or thing.
A fishery officer may detain any vessel, vehicle, conveyance of any kind, parcel, package, record, document, article, gear, apparatus, device, container, fish, aquatic life, seaweed, or thing for such period as is reasonably necessary to enable the fishery officer to carry out an examination or search under this section.
(Emphasis added.)
Fisheries Act 1996, s 200
(1) A fishery officer shall not exercise any power under this Act to enter a place that is a private dwelling place ... unless he or she is authorised in writing by a Justice, Community Magistrate, District Court Judge, or Registrar of a District Court.

...
(3) A Justice, Community Magistrate, District Court Judge, or Registrar of a District Court shall not grant such authority unless he or she is satisfied that the fishery officer has reasonable grounds for requiring entry into the private dwelling place ...

(Emphasis added.)
Serious Fraud Office Act 1990, s 10
(2)Any Judge who...is satisfied—
(a)That there are reasonable grounds for believing—
(i) That any information supplied pursuant to section 9 of this Act [which states the investigatory powers of the Director of the Serious Fraud Office] is false or misleading in a material particular; or
(ii) That a person has failed to comply with any obligation imposed pursuant to section 9 of this Act; or
(iii) That it is not practicable to serve a notice under section 9 of this Act by reason of the fact that the person cannot be located or is absent from New Zealand or other good cause; or
(iv) That the service of a notice under section 9 of this Act might seriously prejudice the investigation; and
(b) That there are reasonable grounds for believing that there may be, at the place specified in the application, any documents or other thing that may be relevant to an investigation or may be evidence of any offence involving serious or complex fraud,—
may issue a warrant in the prescribed form.
(Emphasis added.)
Summary Proceedings Act 1957, s 198
Any District Court Judge ...satisfied that there is reasonable ground for believing there is in any building, ship, or place—
...
(b) any thing which there is reasonable ground to believe will be evidence as to the commission of any ... offence
...
may issue a search warrant...
(Emphasis added.)
Animal Welfare Act 1999, s 133
Any District Court Judge ... who, on an application in writing made on oath by a member of the police or an inspector, is satisfied that there are reasonable grounds for believing that in or on any land, premises, or place specified in the application or any vehicle, aircraft, or ship specified in the application—

(d) There is any thing which there are reasonable grounds to believe may be evidence of the commission of any offence against this Act or any regulations made under this Act,—

may issue a search warrant to authorise the member of the police or the inspector to search the land, premises, or place or the vehicle, aircraft, or ship.

(Emphasis added.)
Commerce Act 1986, s 98A
A District Court Judge ... satisfied ... that there are reasonable grounds to believe that it is necessary [Tranz Rail at [29]] for the purpose of ascertaining whether or not [1 reasonable suspicion] a person has engaged in or is engaging in conduct that constitutes or may constitute a contravention of this Act ... for an employee of the Commission to search any place may, by warrant, authorise that employee to search a place specified in the warrant [2 access reasonably required] [3 reasonable prospect of bearing fruit] [4 no other reasonable means of gaining access]

A District Court Judge ... who is satisfied on application made on oath by a person who is authorised under subsection (1) of this section that there are reasonable grounds to believe that it is necessary for the purpose of ascertaining whether or not a person has engaged in or is engaging in conduct that constitutes or may constitute a contravention of this Act, not being a contravention of section 99A of this Act, for an employee of the Commission to search any place may, by warrant, authorise that employee to search a place specified in the warrant.

(Emphasis added.)
[37] But, wherever a case falls within the statutory spectrum, in each of the authorities cited, both before and after the common law rule of reasonableness in search was confirmed by s 21 of the New Zealand Bill of Rights Act,[27] the Court has applied the reasonableness test so as to achieve a just and balanced result that is responsive both to the class of case and to the particular facts.
[38] So in Auckland Medical Trust this Court quashed a search warrant in general terms which sought access to the most private information about abortion counselling and termination of pregnancies. In Rosenberg the Chief Justice declined to sustain a warrant in terms that would have infringed legal privilege.
[39] In Sanders this Court treated as valid a warrant for the search of premises which, despite manifold errors, did as a matter of substance meet the criteria for validity. It cited Rural Timber Ltd v Hughes in which Cooke P for this Court stated:[28]

The categories of documents listed in the schedule are certainly very general, an objection which warrants particular thought, but distances travelled go so much to the heart of a transport company’s operations that a very wide net had to be cast. The expression “financial records” was too vague but cannot be in itself enough to lead to a finding of miscarriage of justice. The evidence is that some obviously irrelevant documents were not taken away. In view of the tension which, as the Judge said, developed during the Ohingaiti searches we do not think that the police acted unreasonably in the fairly wholesale seizure which was made. Reasonableness in the particular circumstances is an important consideration: see Reynolds v Metropolitan Police Commissioner [1985] QB 881.

(Emphasis added.)

[40] In Television New Zealand Ltd v Attorney-General[29] the police had applied for a warrant to secure film footage of a disturbance at Waitangi. The High Court held the warrant was too broad to be lawful because of the addition of an over-general passage authorising seizure, in addition to the film, of:

any thing which there is reasonable ground to believe will be evidence as to the commission of the offences.

[41] Citing Rural Timber and Sanders Cooke P for this Court stated:[30]

It is settled that such warrants have to be read as a whole ... The wide words just quoted from the prescribed form and the warrant should not be read as authorising a roving or "fishing" search of the premises for any items which there is reasonable ground to believe will be evidence as to the commission of the offences. They should be construed as confined to materials found in the search for the video or film recordings made at the places and on the date specified, and having some association with those recordings. Identifying and explanatory notes would be obvious examples. Warrants have to be executed having regard to their purpose, which in this instance was indicated in the warrant, as it always should be, by a sufficiently explicit description of the things as to which the issuing judicial officer was satisfied in terms of the Act.

This approach to interpretation accords with s 6 of the New Zealand Bill of Rights Act 1990. Section 6 lays down that, wherever an enactment can be given a meaning that is consistent with the rights and freedoms contained in the Bill of Rights, that meaning shall be preferred to any other meaning. By s 21 of the Bill of Rights Act, everyone has the right to be secure against unreasonable search or seizure. A search of a television company's premises for unspecified materials as to which, at the time of the issue of the warrant, no ground exists for any such suspicion or belief as is required by s 198(1) of the Summary Proceedings Act, would be unreasonable. The legislation, that is to say the Act and the prescribed form, need not and therefore should not be interpreted as going so far. Neither should the warrant itself.

[42] Here Mr Robinson recounted what he was looking for. He deposed that he knew there would be found at the United premises briefing documents from fish plans, charter agreements, used TECPR and CLR books, ACE transactions, compliance contracts between UFLCL and the vessel owners and written and electronic records. He advised that the fishing industry is an operation conducted 24 hours a day seven days a week. He stated:

70 ... In addition various parties onshore need to know catch detail so they can attend to such matters as ACE transactions, onshore fish processing and arranging markets for the sale of catch.

71 Clearly the vessel needs constant communication to report such matters and other issues such as repairs which may need to be rectified when the vessel returns to port. This practice is no different for the Kapitan Rusak and UFLCL.

72 I understood under the charter agreement the Kapitan Rusak is paid a percentage of catch but UFLCL actually own the fish. Clearly this gives both parties an incentive to maximise all available ACE.

73 The Ministry recently investigated a similar incident involving area misreport LIN5 and LIN6 which involved foreign charter vessels. This investigation, code-named “Carmen”, was published and is common knowledge within the fishing industry, The fishing industry is a small, close knit community which closely monitors all issues, especially compliance.

74 Operation “Carmen” should have raised concerns for all companies with Charter arrangements in the LIN5 and LIN6 fisheries and given the strict liability nature of fisheries legislation one would expect a high level of scrutiny of their own activities.

75 One of the vessels involved in Operation “Carmen” now fishes in a relationship with UFL.

76 It was relatively easy to analyse the Kapitan Rusak September and October 2007 voyages and any assessment would have created immediate suspicion or concern. The Permit Holder, UFLCL had access to the same information and should/could have known about the area mis-reporting.

77 That the alleged offending continued over the next fishing year suggests the Permit Holder, UFLCL was either complicit in the offending or negligent by allowing it to continue.

Execution of Entry and Search

78 At 7.20am on 5 November 2008 I travelled to the business premises of UFL and UFLCL together with Fishery Officers Backhouse, Burns, Bills and Gosney.

79 On arrival at the Parkhouse Road premises Fishery Officer Backhouse and I went upstairs to the reception area and asked to speak to the General Manager, André Kotzikas. I spoke to a person, Kyre Kotzikas, who then phoned André Kotzikas. With the assistance of Kyre Kotzikas I spoke to André Kotzikas who advised me he was on his way back to the Parkhouse Road premises from Lyttelton and the Kapitan Rusak.

80 At 7.45am André Kotzikas arrived and Fishery Officer Backhouse and myself accompanied him to his office, where I formally identified myself and showed André Kotzikas my warrant of authority.

81 Mr André Kotzikas informed me that he was aware of the Ministry’s investigation into the Kapitan Rusak. I emphasised to him that we were investigating the fishing activities of the vessel in areas LIN5 and LIN6 and the subsequent misreporting of Ling and hoki catch from the 2006/2007 fishing year to present, including the trip just completed.

82 I also advised Mr André Kotzikas that I had reasonable grounds to believe that offences had been committed against the Fisheries Act 1996 and Mr André Kotzikas advised me that United Fisheries was seeking legal advice in relation to the matter.

83 I continued and explained that we were at the United Fisheries premises as the United Fisheries Companies were a party to the vessel charter, the permit holder under the Fisheries Act and the holders of quota against which the vessel fished.

84 I advised Mr Kotzikas that we intended to search the Parkhouse Road premises and seize documentation and records in relation to the Kapitan Rusak, its fishing activities, records, returns, communications, the on-sale of fish, charter agreements and other related matters.

[43] Contrary to the Judge’s opinion, there was no need for Mr Robinson to go into further detail in explaining why there were reasonable grounds for belief that things located on the premises of United would be evidence as to commission of a relevant offence. On any test of reasonableness he could not be required to do so. All he knew was what he had learned from the Paerangi, the VMS and the report of the observer. He identified with clarity the target he was addressing as required by s 199(2)(b)(iii): evidence on the United premises “as to the commission of an offence against [the Fisheries] Act”. It mattered not that he was unable to provide a higher level of specificity than was stated in his affidavit, which was broadly consistent with a contemporary note. The higher standard required by the Judge exceeded that of reasonableness. There can be no doubt that, had the proposed search been of a private dwelling place, a warrant application under s 200 expressed at a similar level of generality would have been valid.
[44] It is immaterial whether or not the Ministry already held originals or copies of information sought in the search. The broad language “evidence ... as to the commission of an offence against [the Fisheries] Act” can be no narrower than that of s 7 of the Evidence Act 2006 which employs a simple test of relevance. A document does not lose its relevance simply because another copy exists. On the contrary, the fact that United holds another version may well be significant to assessment of its role and thus culpability in the offending.
[45] I uphold the Crown’s argument on the first issue.

Second issue: was the search carried out lawfully?

[46] On this issue the other members of the Court have written separately. Contrary to the Judge’s conclusion,[31] my view is that there was no way in which the search could be “confined to records or documents that are believed will be evidence of offending”. If such were the law s 199(2) of the Fisheries Act could be readily frustrated by concealing relevant documents among others that were irrelevant.
[47] The law’s requirement, in both s 199(2) and s 21 of the Bill of Rights Act, is that the search be performed reasonably. “Search” in the context of s 199(2) necessarily imports more than a mere entry and examination; that can be done under subs (1) of s 199 with no greater “reasonable grounds” requirement than that of s 21. A fishery officer has, to that extent, similar powers to enter and examine to those of a tax inspector. “Search” must import the power to look through the irrelevant for what will be evidence. But the power must be exercised reasonably. Whether it was is the real issue.
[48] I have summarised what occurred.[32] The Judge found that there had been no consent to the wholesale cloning and that conclusion is not challenged on appeal.
[49] I would accept United’s submission that the legislation[33] does not permit that course.
[50] The Act is awkwardly expressed and does not spell out in detail how the search process is to be performed. Section 199, read alone, empowers a fishery officer:

may be located in any premises, place, record or thing;

to examine and search (by opening where necessary) any such record or thing.

[51] In short, the power to examine and search an article, record (other than one required to be kept), document or thing is confined to one which there is reasonable ground to believe will be evidence as to the commission of an offence. That must apply both to the physical computer and to the information it contains. It does not in my opinion authorise wholesale cloning against a mere possibility of relevance. Further, there are powerful policy reasons to prohibit examination of documents that are privileged. That policy is emphasised by ss 206(2) and 207(3). But how can one know whether they are privileged without examining them?
[52] Section 207(1)(c) echoes s 199(2)(b)(iii) by expressly limiting the power to seize any documents to those which an officer reasonably believes are evidence of the commission of an offence. But is the computer itself a “thing which there is reasonable ground to believe will be evidence as to the commission of an offence” when there is no reason to believe that more than a fraction of its contents could be relevant?
[53] And how is s 206 to be construed? Does it extend to removing such a computer (or a clone of its entire contents)?
[54] I start the exercise of construction by reference to legally privileged information. The cross-references in ss 206(2) and 207(3) to s 198A of the Summary Proceedings Act establish the code for dealing with the most highly protected class of information. That section deals with certain accounting records kept by a legal practitioner. It provides that where such documents are seized under warrant the police officer executing it must, before leaving the premises, prepare an inventory of all documents so seized. If the practitioner wishes to dispute the seizure of any document listed on the inventory on the ground that the seizure of that document is outside the authority of the search warrant, that is done by marking the inventory in such a manner as to indicate the objection to the seizure of that document; and the police officer must, in the presence of the practitioner, place each document to which such objection is made in an envelope or package, seal the envelope or package, and deliver it as soon as practicable to a District Court Judge, together with a brief statement of the facts of the case. The Judge will then determine the issue.
[55] It may be noted that s 198A applies only to accounting records. Control of seizure of other records protected by legal professional privilege, now stated by s 54(1) of the Evidence Act 2006, is not prescribed by statute. Legal professional privilege is among the principles of the law regarded as so deep-seated as to require the clearest language to limit them: B v Auckland District Law Society.[34] So the judge-made common law must deal with it by supplementing the legislation, both s 198A and the Fisheries Act.
[56] I therefore construe the power under s 206 as similarly confined to copy non-privileged documents, that is those in respect of which in terms of s 199(2) there is reasonable ground to believe will be evidence as to the commission of an offence. Subclause (b) of s 206(1), as to requiring a person to assist reproduction of information in a document, can only refer to information relevant to the commission of an offence which is not privileged. I decline to attribute to Parliament the intention by the general language of s 206 (1)(a) “make copies of any record ... and remove ... such record” to scoop up privileged records.
[57] There is a further question concerning documents which are not privileged but are of an irrelevant nature. Some may contain information of a highly private and personal nature having nothing to do with any possible offending. Others, such as the laptop monitoring the vessel’s position ([23](d) above), may be expected to contain information that is either relevant (as displaying the track of the vessel on the material trips) or, though irrelevant (because not germane to any breach of the law), is free of any private or personal or other element that could justify their being withheld as confidential from the gaze of the officer whom Parliament has authorised to perform a search. So “irrelevance” as a ground to limit search powers cannot extend beyond items that could reasonably be regarded as privileged or confidential. And some computer records may contain both confidential and non-confidential material. However, unlike in the case of privileged material, which Parliament has chosen to protect by reference to the procedure stated in s 198A of the Summary Proceedings Act, there is no specific procedure for the protection of private or confidential material. Parliament has charged the chief executive of the Ministry with appointing s[35]table fishery officers35. The State Services Commission has the power to set minimum standards of integrity wi[36]in the public service.36 It is no function of the Court to add to these criteria. It is for the chief executive to ensure that trustworthy officers, who will not divulge private and confidential information, are appointed and maintain proper standards. Parliament must be taken to have entrusted fishery officers with the task of dealing appropriately with such material.
[58] The Act must be construed so as to work. Yet[37] it does not permit examination or seizure of documents other than those believed on reasonable grounds will be evidence as to the commission of an offence.[38] The same policy must apply to the copying under s 206. What is to be done?
[59] Realistically the task of protecting privileged material cannot be left to the fishery officer alone. If the officer were given carte blanche to examine all records on premises there would be no protection for such material would fall short of that standard imposed by ss 206(2) and 207(3). A practical option is to interpolate a trustworthy independent lawyer to whom the occupant of the premises may claim privilege before the fishery officer examines a document. The lawyer will inspect the document and, if the objection has merit or is arguable, place it in an envelope which will be sealed and put before a judge for determination of the objection. That is the course adopted in Avowal Administrative Attorneys Ltd v District Court at North Shore:[39]

[145] It is now conventional jurisprudence that both common law and statute law form part of a seamless whole, the policies of each bearing on the construction and application of the other. In a case like this, where a claim to privilege or tax advice status has been made by a responsible advisor, the obvious and sensible way to resolve the matter is to do as was agreed here. That is, to seal the disputed documents – whether the claim is for legal professional privilege or for tax advice status – and refer them for court determination as to their status.

[60] Here that precaution has not yet been adopted. Referring to the categories at [23] above I conclude:
[61] The clones of the laptops and of drives and folders from the central server at the United premises (item [23](e)), appear to contain both information which is potentially relevant and irrelevant. The position is similar to [60](b).
[62] The result, in short, is that in attempting to perform the task of complying with s 199,[43] the Evidence Act 2006 affords protection. The protection for legally privileged information is absolute.[44] Provided there is no reasonable basis to apprehend that the information is privileged, the officer is entitled to look at it, whether relevant or not. But on my construction he is not entitled to look at any information that is arguably privileged, whether or not it is relevant.
[63] Section 198A of the Summary Proceedings Act, imported by ss 206(2) and 207(3) of the Fisheries Act,[45] as well as the overarching common law[46] make clear that privileged information may not be searched. Protection must extend to both relevant and irrelevant material that is arguably privileged. Only the Court can determine a dispute as to its status. Until it pronounces, the search procedures must keep the information from the eye of the officer.
[64] The decision whether arguably privileged information should be made available to the officer can be made only by the Court. To date no information has been revealed. What in these circumstances should the Court now do? My answer is for the High Court now to construct a mechanism for it to examine the documents. That may be done in exercise of the Court’s discretion as to relief.

Third issue: relief

[65] The power of the Court to grant relief on judicial review is discretionary. I turn to how our discretion should be exercised.
[66] It was not suggested by United that the Ministry personnel acted otherwise than in what they considered was the due performance of their responsibilities under the Fisheries Act. Had it been, I would have remitted the case to the High Court to make findings on the point. Deliberate or reckless disregard of legal obligations will prompt a firm response from the Court by way of disincentive to the offender and others. I proceed on the footing that the officers acted in good faith on the basis of the broad language of s 206(1)(a) “any document”, which I now construe as confined to “any relevant document”.
[67] In considering what response is appropriate I have looked to subs 206(2) and (3) which deal with what is potentially the most sensitive information of all – that held by a solicitor which is protected by legal professional privilege. It may include incriminating evidence of the most serious kind or personal information about domestic relations of the greatest sensitivity. Parliament has recognised that the merest glance at such material may infringe the privilege which the substantive law is at particular pains to protect. Yet to allow a mere assertion of privilege to shield unprivileged material from examination would constitute abuse. It has therefore established a code for dealing with material claimed to be protected by such privilege. Such material may be removed from the searched premises, but only under the strict conditions of s 198A of the Summary Proceedings Act. These are that the police officer performing the search must, on demand by the solicitor, place disputed documents in an envelope which is then sealed and given to a District Court judge for determination of the validity of the claim to privilege.
[68] Parliament has made no similar provision for such cases as the present. It therefore falls to the Court to determine how to balance the competing public interests:
[69] It is important that the cloned documents have not been examined by Ministry personnel. So it is open to the Court to devise a system of dealing with them which meets the highest standards of protection of confidence accepted by Parliament.
[70] I accept the Crown’s submission that decisions as to how different classes of documents should be examined are presumptively to be made by the officers conducting the search save in relation to matters that an independent barrister considers are irrelevant or privileged. I agree with United that the barrister should be assisted by an independent computer expert who will conduct the physical interrogation of the computer records. The process should be the subject of directions by the High Court with liberty to apply at short notice if difficulty arises.

Decision

[71] I would allow the appeal. I would set aside the judgment of the High Court and the order for costs in that Court.
[72] I would remit the case to the High Court with directions that it establish and give effect to a system conforming with [70] above for the examination by the Ministry of the cloned documents in such manner as will:
[73] Each side having succeeded in part I would make no order as to costs in this Court or for costs to date in the High Court.

GLAZEBROOK AND ELLEN FRANCE JJ
(Given by Ellen France J)

[74] We write separately on the question of whether the search was carried out lawfully. That question raises two issues, namely, whether there is a power to clone and, if there is, whether the power was exercised reasonably in this case. We deal with each in turn.
[75] We would answer the first question in the affirmative.
[76] The evidence in this case from Michael Smith, the Ministry’s forensic investigating accountant, was that computer forensic best practice involves, amongst other matters, preserving the electronic data contained within the computer from alteration or deletion by forensic copying (cloning). Mr Smith goes on to explain that because of the “volatile” nature of the electronic evidence this best practice step is necessary to “fix at a point in time”, the nature of the electronic data. Mr Smith says further:

If these steps were not taken then the continued operation and or use of the PC may alter such important evidence as the date and time stamps associated with every file on the computer as well as the actual existence of files on the computer. The [various steps described as part of the cloning process] provide an integrity check that the data cloned was identical to that which existed on the original hard disk drive in the PC being examined.

[77] It follows that, as with a diary or a ship’s log, the computer itself is evidence. The relevance is not just in the diary entries but also their position in the diary or the log. This was the approach taken in relation to the cloning of computers by the United Kingdom Court of Appeal in R (Faisaltex Ltd) v Preston Crown Court.[47] Keene LJ said that where the position was reached that an item could be the subject of a search warrant[48] but may contain irrelevant as well as relevant material, whether or not the item had to be excluded from the warrant turned on the following:[49]

... whether one is dealing with a single item or “thing”, such as a diary or letter which is likely to contain both relevant and irrelevant material, or with something which is to be regarded as a container of a number of things.

[78] The Court in Faisaltex saw a filing cabinet as an “obvious” example of a container but concluded that the computer was a single thing, that is, the diary analogy was adopted. There are, we accept, some difficulties in applying that approach in the present case. As Baragwanath J says, the Fisheries Act is awkwardly drafted in this respect although s 206 does provide a power to make or take copies. Further, we can see that the diary analogy is not fully apt. On the other hand, the Act does need to be made to work. In the end, we consider that the Faisaltex approach should be applied and the computer treated as a thing. On this basis, there is a power to clone and the issue is whether the Ministry has acted reasonably.
[79] In terms of the reasonableness of what the Ministry did, Mr Smith’s evidence was that in some cases it may be necessary to depart from best practice. He gave as an example the examination of data held on a computer file server as may be found in a larger business such as that of United Fisheries. Mr Smith explained that because of the way data is stored upon file servers, the volume and scope of the data stored in the servers, and because of the needs of business continuity, file servers are not generally cloned. Instead, selected information is copied from the server to a hard disk which is treated as the exhibit copy. It may be, therefore, that reasonableness may require a departure from best practice.
[80] That issue does not ultimately arise here because the dispute between the parties on this part of the appeal was resolved by the Ministry’s acceptance at the hearing that it would be appropriate for an independent barrister to supervise the search process. It is also relevant to this part of the inquiry that keywords would be used in the examination of the cloned material albeit the parties do not agree on the adequacy of the chosen keywords to differentiate between information properly the subject of examination and that which is not. On this basis, we would remit the matter back to the High Court for leave to apply if the parties cannot sort out the details of the process. In terms of those details, given the dispute about the keywords, it might well be useful to involve an independent computer expert (or at least one not involved to date).
[81] We add that we agree with Baragwanath J that where legally privileged material is involved, a reasonable exercise of the search power will entail taking steps to protect such material. The use of an independent barrister and an independent computer expert are obvious ways of meeting concerns of this nature. Similarly, where there are third party privacy issues such as that in issue in Auckland Medical Aid Trust v Taylor[50] or A Firm of Solicitors v District Court at Auckland[51] the use of an independent barrister may also be necessary.
[82] We leave open the more complicated question of how the competing interests are to be resolved where the privacy issues are those of the particular person investigated or employees. As Baragwanath J observes, computers can be used to store a wide range of material including very personal information.[52] There is, though, some force in the argument that many searches, for example those by the police, will involve perusal of both relevant and irrelevant material to find the relevant if the relevant matter is likely to be found in a place where irrelevant material is stored. Where a computer is used for ordinary work purposes that is likely to militate against any requirement for precautions to protect the irrelevant. However, that is not a matter which needs to be determined here.
[83] In all other respects, we agree with the judgment of Baragwanath J.

Solicitors:
Crown Law Office, Wellington for Appellant
Oceanlaw New Zealand, Nelson for Respondents

[1] United Fisheries Limited is the holding company, UFL Charters Limited its operating subsidiary.

[2] Under s 230(1)(b) of the Fisheries Act 1996.
[3] See [6] below.

[4] United Fisheries Ltd v The Chief Executive of the Ministry of Fisheries HC Wellington CIV-2008-485-2452, 6 May 2009.
[5] Reg 11.
[6] Reg 6.
[7] Reg 7.
[8] The maximum penalty is a fine of $250,000: s 252(3).
[9] Section 240.

  1. [10] Section 241 provides a defence if the defendant proves that that the contravention was due to the act or default of another person, or to an accident or to some other cause beyond the defendant's control and the defendant took reasonable precautions and exercised due diligence to avoid the contravention. Section 244 imposes vicarious liability on a body corporate for conduct of the master of member of the crew of a vessel unless the Court is satisfied that it would be repugnant to justice for liability to be imposed.

[11] The maximum penalty is imprisonment for 5 years (or in the case of certain foreign persons a fine of $500,000) and a fine of $250,000: ss 252 and 253.
[12] Section 198A relates to documents removed from solicitors’ offices.
[13] Section 199(2)(b)(iii).
[14] [5] above.

  1. [15] See Tranz Rail Ltd v Wellington District Court [2002] 3 NZLR 780 (CA) at [38] “For centuries the law has set its face against general warrants and held them to be invalid. Entry onto or into premises pursuant to an invalid warrant is unlawful and a trespass” and [41] “A search warrant is a document evidencing judicial authority to search. That authority must be as specific as the circumstances allow. Anything less would be inconsistent with the privacy considerations inherent in s 21 of the Bill of Rights. Both the person executing the warrant, and those whose premises are the subject of the search, need to know, with the same reasonable specificity, the metes and bounds of the Judge’s authority as evidenced by the Warrant”. (emphasis added)

[16] Auckland Medical Trust v Taylor [1975] 1 NZLR 728 (CA) (abortion clinic records).
[17] Rosenberg v Jaine [1983] NZHC 6; [1983] NZLR 1 (HC) (legal professional privilege). See [38] below.
[18] R v Sanders [1994] 3 NZLR 450 (CA).
[19] Television New Zealand Ltd v Attorney-General [1995] 2 NZLR 641 (CA).
[20] Tranz Rail Ltd v Wellington District Court [2002] 3 NZLR 780 (CA).
[21] A Firm of Solicitors v District Court at Auckland [2006] 1 NZLR 586 (CA).
[22] Avowal Administrative Attorneys Ltd v District Court (North Shore) [2010] NZCA 183.
[23] At [41], cited by the Judge at [44].

[24] The principle is as old as the Latin maxim: a judgment is to be read secundum subjectam materiam.

[25] Descôteaux v Mierzwinski [1982] 1 SCR 860 at [60].

[26] Baron v Canada (1993) 99 DLR (4th) 350 (SCC) at [34].

[27] Section 21 states: “Everyone has the right to be secure against unreasonable search or seizure, whether of the person, property, or correspondence or otherwise.”
[28] Rural Timber Ltd v Hughes [1989] 3 NZLR 178 at 185.
[29] Television New Zealand Ltd v Attorney-General [1995] 2 NZLR 641.
[30] At 646.
[31] At [72]–[73], set out at [29] above.
[32] At [23].
[33] At [8] above.
[34] B v Auckland District Law Society [2004] 1 NZLR 326 (PC).
[35] Fisheries Act 1996, s 196.
[36] State Services Act 1988, s 57.
[37] Subject to s 199(2)(b)(ii).
[38] Sections 199(2)(b(iii) and 207(1)(c).

[39] Avowal Administrative Attorneys Ltd v District Court at North Shore HC Auckland CIV-2006-404-7264, 26 February 2008 (to be reported); affirmed [2010] NZCA 183.

[40] Section 199(2) and its (b)(iii).

[41] Entick v Carrington [1765] EWHC J98; (1765) 19 State Tr 1029, 95 ER 807 displayed the common law’s unwillingness to permit general searches which disregard the public interest in personal privacy. Unconditional cloning must in my opinion be similarly controlled. The fact that Parliament constrains searches of a dwelling more closely than searches of business premises (s 200) exhibits a policy to which the Court, in exercise of its power to interpret the statute, should give effect.
[42] R (Faisaltex Ltd) v Preston Crown Court [2008] EWHC 2832 (Admin), [2009] 1 WLR 1687.
[43] Which, if it is construed literally, is an impossible one.
[44] Evidence Act 2006, ss 53 and 54.
[45] [54] above.
[46] [55] above.
[47] R (Faisaltex Ltd) v Preston Crown Court [2008] EWHC 2382 (Admin), [2009] 1 Cr App R 37.
[48] Legally privileged material having been excluded.
[49] At [76].
[50] Auckland Medical Trust v Taylor [1975] 1 NZLR 728 (CA).
[51] A Firm of Solicitors v District Court at Auckland [2006] 1 NZLR 586 (CA).
[52] At [31] above.

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