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Court of Appeal of New Zealand |
Last Updated: 23 October 2013
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IN THE COURT OF APPEAL OF NEW ZEALAND
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BETWEEN
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Appellant |
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AND
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First Respondent
FINN BATATO
Second Respondent
MATHIAS ORTMANN
Third Respondent
BRAM VAN DER KOLK
Fourth Respondent
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JUDGMENT OF THE COURT
____________________________________________________________________
REASONS OF THE COURT
(Given by Randerson J)
Introduction
[1] By a judgment delivered on 28 June 2012,[1] Winkelmann J, Chief High Court Judge, found that three search warrants executed on 20 January 2012 at properties owned or associated with the respondents were invalid. In a subsequent judgment issued on 31 May 2013,[2] the Chief Judge affirmed the findings of invalidity and granted relief to the respondents arising from the finding of invalidity.
[2] The Attorney-General has appealed against the judgment of 31 May 2013 together with those parts of the earlier decision affirmed therein. Relevantly, for present purposes, the Attorney-General appeals against the finding that the search warrants were invalid. The appeal is to be heard in this Court on 28 November 2013.
[3] On 30 September 2013 the respondents filed an application for an order extending the time for the filing of a memorandum under r 33(1) of the Court of Appeal (Civil) Rules 2005 (the Rules). The respondents seek to support the judgment under appeal on other grounds. If a respondent wishes to support the judgment on other grounds, the Rules require the respondent to file a memorandum setting out the ground relied upon within ten working days after the date on which the notice of appeal is served.[3] The appeal was filed on 28 June 2013 and, we assume, was served promptly thereafter. The application is therefore well out of time.
[4] The respondents seek to support the judgment on the ground that, when applying for the warrants, the New Zealand Police did not disclose material facts to the District Court Judge who issued the warrants. As such, the respondents contend that there was a non-disclosure which is a further ground upon which the search warrants were unlawful.
[5] The respondents seek to contend that the material facts not disclosed to the District Court Judge were:
- (a) The Government Communications Security Bureau had been intercepting the respondents’ communications since at least 16 December 2011.
- (b) The first respondent’s property had been under surveillance by way of a camera installed by the New Zealand Police on an adjacent or nearby property, without a search warrant having been obtained.
- (c) A hidden pen-cam had been used or was about to be used by a member of the New Zealand Police to record video images (and audio) of the exterior and interior of the residence, and to record the audio of any conversations that took place at the property, when he visited the first respondent’s property on 19 January 2012, without a search warrant having been obtained authorising such search.
- (d) The New Zealand Police intended to deploy the Strategic Tactical Group (STG), the members of which would be armed and deployed on to the first respondent’s residential property by means of helicopters and would use other aggressive, intimidating and frightening tactics in the execution of the search warrant at the first respondent’s property.
[6] The appellant opposes the application on the basis that the ground the respondents now wish to raise is outside the proper scope of r 33 and that this Court would be in the position of having to consider the new ground in the absence of any findings in the lower court. New evidence would be required which it is said would be time consuming and procedurally complex, particularly since much of the relevant material is confidential in nature.
The proper scope of the appeal
[7] The respondents issued judicial review proceedings challenging the warrants on three grounds, all of which were upheld. The Chief Judge found:
- (a) The warrants did not adequately describe the offences to which they related.
- (b) The warrants were expressed to authorise the search for and seizure of broad categories of items described so as to capture both relevant and irrelevant material.
- (c) Even if the warrants had been sufficiently specific as to the offences and the scope of the search, it might still have been appropriate for the issuing judge to impose conditions relating to matters such as the extraction of relevant material.
[8] The essential finding in the High Court was that the warrants were general warrants and invalid as such on the authority of cases such as Auckland Medical Aid Trust v Taylor.[4]
[9] Mr Davison QC for the first respondent accepted that the respondents had not pleaded that the warrants were invalid on any of the grounds the respondents now wish to raise and that no argument was addressed to the High Court in relation to those issues in challenging the validity of the warrants.[5] He advised the Court (without challenge) that the items identified as (a) and (b) in [5] above, did not come to light until a remedies hearing before the Chief Judge in August 2012 or shortly after that date. However, he accepted that the items in (c) and (d) were known by the respondents from a time shortly after the warrants were executed in January 2012.
[10] Mr Davison submitted that the failure to reveal the identified facts was a recognised ground upon which a warrant might be challenged relying on the decision of this Court in R v Williams.[6] In response to the appellant’s submission that evidential difficulties would arise if the application was granted, Mr Davison submitted that the four identified facts were undisputed and that no other factual material would be necessary to enable this Court to adjudicate upon the further grounds.
Discussion on the scope of the appeal
[11] We accept Mr Boldt’s submission on behalf of the appellant that the respondents’ application falls outside the proper scope of r 33. That rule is intended to enable a respondent to support the decision under appeal on grounds other than those relied upon by the judge in the lower court. But any such ground must fall within the proper scope of the pleadings in the lower court. Rule 33 does not permit the raising of a new ground in support of the appeal that was neither pleaded nor raised in the lower Court.
[12] The rule is intended to cover grounds which the Judge in the lower court could have relied upon within the scope of the pleadings but did not. Typically, such grounds include arguments relied upon by the respondent in the lower court but which have not been referred to by the Judge in the decision under appeal. The rule is also appropriate to cover points such as the emergence of a new line of argument or authority discovered since the hearing in the lower court and which is within the scope of the pleadings. What r 33 does not permit is the introduction of new grounds in support of the judgment that were never pleaded by the respondent.
[13] Mr Davison cited the decision of this Court in PAE (New Zealand) Ltd v Brosnahan[7] for the proposition that a memorandum supporting a judgment on other grounds does not expose the opposing party to a court process which would otherwise not happen. Rather, it expands or refines the issues in respect of an appeal that is already before the court and in that respect is not markedly different in effect from an amendment to the grounds of appeal filed by an appellant. In PAE (New Zealand), the Court saw it as appropriate to take a relevantly lenient approach to the late filing of a memorandum supporting the judgment on other grounds. The Court saw this as being the respondent’s equivalent to an appellant widening the scope of an appeal by amending its grounds of appeal.[8]
[14] We are satisfied PAE (New Zealand) is clearly distinguishable. The matters which the memorandum sought to raise in that case were all within the scope of the pleadings and argument in the High Court and the High Court Judge had made findings upon them.
The evidential difficulties
[15] The respondents’ application in the present case is akin to an appellant seeking to amend the grounds of appeal under r 34 or to introduce a new cause of action under r 48(2) (or, in this case, the introduction of further grounds to challenge the validity of the warrants). If an application of that kind is made by an appellant, issues of potential prejudice must be considered. In that respect, we accept Mr Boldt’s submission that this Court could not fairly or adequately deal with the additional grounds without permitting the appellant to adduce evidence in response to the new matters raised. The likely result would be a remission of the case to the High Court for a rehearing.[9] The ability to seek an amendment to the pleadings where appropriate underlines the much narrower scope of rule 33.
[16] When allegations are made that a warrant is defective through non-disclosure of information in the application for the warrant, issues of relevance and materiality become critical.[10] We do not accept Mr Davison’s submission that the failure to include the identified facts in the warrant application would be sufficient, without more, to enable this Court to determine materiality. Inevitably, the content of the intercepted communications and the results of the surveillance and any recorded material arising from the steps identified in items (a), (b) and (c) would have to be considered, along with the reasons why the material was omitted from the warrant application. Similarly, if item (d) were introduced, the appellant would need to have the opportunity to explain why this fact was omitted and why it may not have been material in all the circumstances.
[17] Mr Boldt also informed us that during argument in the High Court over the manner in which the warrants were executed, special arrangements had been made (including the appointment of independent counsel), to deal with confidential or sensitive material. While we accept Mr Davison’s submission that sensitive or confidential information (if material) would have to be disclosed, there is still a real issue as to how that should take place in this Court. We accept Mr Boldt’s submission that this is an added issue that would complicate and prolong the hearing of the appeal.
[18] Most importantly, this Court would be without the benefit of any findings by the Chief Judge who, from her involvement in the Dotcom proceedings over a substantial period of time, has obtained an overall grasp of the relevant events that this Court simply does not possess.
Result
[19] For the reasons given, the application by the respondents to extend the time to file a memorandum under r 33 of the Court of Appeal (Civil) Rules 2005 is dismissed.
[20] Costs are reserved.
Solicitors:
Crown Law Office, Wellington for Appellant
Simpson Grierson, Auckland for
First Respondent
[1] Dotcom v Attorney-General [2012] NZHC 1494; [2012] 3 NZLR 115.
[2] Dotcom v Attorney-General [2013] NZHC 1269.
[3] Rule 33(1) and (2) of the Court of Appeal (Civil) Rules 2005.
[4] Auckland Medical Aid Trust v Taylor [1975] 1 NZLR 728 (CA).
[5] Although reference was made to them in other contexts, particularly the manner of execution of the warrants which is now to be the subject of separate proceedings.
[6] R v Williams [2007] 3 NZLR 207 at [224].
[7] PAE (New Zealand) Ltd v Brosnahan [2009] NZCA 105.
[8] At [8].
[9] As occurred in Insight Legal Trustee Company Ltd v Stokes [2013] NZCA 148.
[10] See R v Williams above n 6 at 265.
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