Hager v Attorney-General [2015] NZHC 1508 (2 July 2015)

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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:	26 June 2015
Counsel:	F E Geiringer for applicant B J Horsley and K Laurenson for first and second respondents
_Judgment:	_{2 July 2015}

[1] In a reserved decision on 24 February 2015, I determined a number of challenges brought on behalf of the applicant (Mr Hager) to claims on behalf of the

_{second respondent (the Police) to withhold otherwise discoverable
documents on the}

ground of confidentiality.¹Since then, there have been several further tranches of documents discovered by the Police, but subject to claims that numerous documents should be withheld from inspection on account of the confidentiality of their content. This provoked an informal request on behalf of Mr Hager for me to consider all the further documents for which confidentiality was claimed, and hear limited argument, to the extent I could when counsel for Mr Hager did not have access to the content of the relevant documents.

[2] Mr Geiringer submitted that the request for judicial consideration of all the documents was justified because of the number of changes in stance as to discoverability of relevant documents by the Police. He also submitted that the scope of relevant documents had been expanded by further allegations in his amended statement of claim to include alleged use of documents seized from Mr Hager’s property in the course of executing the search warrant. Mr Hager claims that such alleged use is in breach of the undertaking that seized documents would be sealed pending a determination on Mr Hager’s claim that the documents should be immune from seizure on account of journalistic privilege.

[3] Prior to the current hearing, I had been unable to precisely identify the extent of documents discovered since my decision in February in respect of which confidentiality was claimed in whole or in part. I discussed with counsel the most efficient manner of identifying and inspecting the documents, and arranged for them to be provided in an additional electronic form to facilitate that.

[4] Having done so, and having heard argument on the transcript of the recording of events whilst the search warrant was being executed, plus the status of other isolated documents, I considered all of the documents in issue and ruled on them in the terms that follow. My judgment was signed and ready for delivery on 1 July

2015, but before it could be issued by the Registry, a further memorandum was received from Crown Law requesting that I address additional issues. I have done so

[5] Partially redacted versions have been discovered of a transcript prepared from a recording that was running while detectives executed the search warrant at Mr Hager’s home. Given its length, it has been discovered as four documents.

[7] The redaction on page 14 is the first of a number of redactions made by the Police where a part of the recording is transcribed as “inaudible”. The officer vetting the transcript was concerned that if the recording were made available, and if audibility enhancing software was applied to it, then passages that are presently transcribed as “inaudible” could become audible and would risk revealing confidential information about Police investigative techniques. That is one of the topics on which I have recognised a legitimate concern that may justify withholding documents on account of their confidentiality.

[8] Mr Geiringer objected to this as a ground for redaction as a matter of principle. He argued that the onus was on the party seeking to withhold documents from inspection on the ground of confidentiality to satisfy the Court that the content was sufficiently confidential to warrant it being withheld or redacted. On the present point, the Police could not discharge that onus but rather invited the Court to accept the prospect of a concern that unidentified content would, if deciphered, provide Mr Hager with access to material that should remain confidential.

[9] However, in practical terms, Mr Geiringer acknowledged that Mr Hager was not in a position to retain the technical expertise required to enhance the audibility of the recording. Therefore any inadequacy in the justification for the claim to confidentiality was moot. In any event, those vetting the transcript will be familiar

[10] The practical solution is that the passages in the transcript that are innocuous in their present state, but which include inaudible passages that may be confidential, should be disclosed, but without affording Mr Hager’s advisers access to an unedited form of the recording. In that way, there is no opportunity for the presently untranscribed content becoming available to Mr Hager and thereby compromising confidential content that relates, for example, to Police investigative techniques. Adopting this approach will enable a substantial portion of the presently redacted passages in the transcript to be provided. The redacted passage on page 14 can be disclosed (unredacted) on this basis.

[11] I confirm the appropriateness of the redacted passage on page 18 remaining confidential because it relates to a suspect’s identity.

[12] On page 20, the heading at 1.25.59 should be deleted as it is a comment, rather than part of the transcript. Thereafter the redacted content should be unredacted on the same reasoning as my comments in relation to page 14 above.

[14] The redaction of one and a half lines after “2.44.34” on page 36 is to be unredacted. The time log at the foot of that page and the first 14 lines on page 37 should remain redacted as they relate to confidential Police investigative techniques. The same ruling applies to the redaction on page 56.

[15] The redaction on page 21 is justified as containing confidential information relating to investigative techniques.

[17] On page 51, the redactions under the log 02.06.16, and the last two lines of the paragraph under 02.09.45, are justified. So, too, is the redaction on page 52.

They comprise comments about confidential investigative techniques, and possibly about unrelated Police inquiries.

[19] The redaction of the last paragraph on page 31 and the first 10 lines and one word of print on page 32 are justified. They reflect confidential investigative techniques.

[20] The two and a half lines some seven lines down on page 15 are justifiably withheld in that they contain comments in relation to investigative techniques.

[21] The last component of the transcript at pages 32 to 34 of this document records further comments between two officers after they have completed executing the search warrant. Some of it is irrelevant, and other content relates to investigative techniques. I am satisfied that its redaction is justified.

[22] I have also reviewed each of the 48 documents in Part 3 of the current discovery list for the Police, the full content of which is claimed as confidential. I am satisfied that the claims to confidentiality are justified in each case.

[23] In addition to the four documents comprising parts of the transcript of the recording taken during the execution of the search warrant,³Part 4 of the current list contains a further 14 documents in respect of which parts are claimed as either privileged or confidential. I have considered each of those and am satisfied that the extent of claims to privilege or confidentiality justify the redactions that have been

[24] Mr Geiringer raised a challenge to the claim of privilege in respect of POL.00002.0062. I confirm that the content of the emails in that document were properly the subject of both legal professional, and litigation privilege.

[25] Mr Geiringer was also concerned to clarify the status of a document he characterised as 8/1500, but which I had coded POL.10000.0195. It comprises a job sheet of activity on 2 October 2014, but completed on 22 October 2014 by one of the detectives who carried out the search at Mr Hager’s home. That document was previously disclosed in a partially redacted form, but has recently been provided to Mr Geiringer entirely unredacted.

[26] Mr Geiringer treats the previously redacted portion of the document as evidencing a breach of undertaking by the Police officers executing the search warrant that they would seal up all the documents and other items seized, and not make use of them pending resolution of Mr Hager’s claim that they were protected by journalistic privilege.

[27] Mr Geiringer’s analysis of the job sheet led him to suggest that a particular seized document was analysed during the search, with an officer at the site giving others away from the site instructions to undertake investigations in relation to an individual identified in the particular document that was being seized. On the premise that all inquiries in relation to the identified individual thereafter should be attributed to that individual being identified as a result of the officer taking details from the seized document, Mr Geiringer has now requested that the Police reveal all documents touching on their investigation of that identified individual.

[28] Mr Horsley resisted the request for broader discovery to comply with the terms of Mr Geiringer’s analysis. Instead, he acknowledged that any documents referring to the identified individual that resulted from the instruction given by the officer whilst carrying out the search were discoverable. However, other Police inquiries may well have been on-going in respect of the identified individual that were entirely independent of the named individual being brought to the attention of one of the officers whilst carrying out the search.

[29] The exclusion of documents that refer to the identified individual but which did not arise because that individual was identified in the course of the search is a question of fact depending on the circumstances of their creation. The Police should complete further discovery of any documents referring to the identified individual where the inquiry leading to creation or collection of such documents derived from the individual being identified in the course of the search.

[30] The most recent memorandum on behalf of the Police dated 1 July 2015 conveyed a request that I consider the entitlement for the Police to claim confidentiality in respect of screen shots recording text messages that have not been included in the discovery. Their content was provided in a sealed envelope, with a copy of discovered document POL.50000.0038.

[31] I am satisfied that the claim to confidentiality is justified because they record discussions with a confidential source. I would not accept that the messages could be excluded entirely on the basis of a lack of relevance, but also acknowledge that their relevance is slight at best.

[32] Dealings with the same informant are recorded in a Police job sheet, discovery document POL.50000.0038. I am satisfied that the claim to confidentiality of the content of that document can be maintained on the same basis.

[33] I also acknowledge receipt of a less redacted version of the transcript of the recording taken during the execution of the search warrant. The lesser extent of redactions in that form of the transcript were anticipated by me and it does not alter the rulings I have provided earlier in this judgment.

High Court of New Zealand Decisions

Hager v Attorney-General [2015] NZHC 1508 (2 July 2015)