In what will be seen as a major triumph for journalists’ rights to free speech and protecting the confidential sources of information, the High Court has ruled that the search of the home of “Dirty Politics” compiler Nicky Hager was unlawful.
The High Court decision, delivered by Justice Clifford, said:
I acknowledge some concern with what t
e police said was their reasonable belief that they would discover evidence of the Source’s identity. My concern is that that reasonable belief, on the material I have been provided with, might better be characterised as a hope. In terms of Gill62 these are, however, all intensely factual questions. On that basis, I am satisfied that these are issues which are not appropriate to be determined on the basis of uncontested affidavit evidence. That evidence on the contested facts was voluminous. I do not consider I am in a position to properly consider that evidence, in the absence of cross-examination
The case gave rise to “complex issues” relating to the seizure of computer equipment and related material and the decision traversed issues relating to both journalists’ rights and arrest warrant provisions, including case law such as Dotcom decisions that deal with such matters.
He also made a final comment regarding the police approach:
I note one final matter: I am not persuaded that the approach the police took to enabling Mr Hager to claim privilege was the preferred one. It was only during the second telephone conversation that the police asked Mr Hager if he was claiming privilege. That is not the type of facilitation that I consider the Search and Surveillance Act anticipates. Rather, when they discovered Mr Hager was not at his home, I would have anticipated that the police would have initiated contact with Mr Hager, told him that the Search, if successful, of necessity would disclose evidence protected by s 68, and have positively given him the opportunity to claim privilege.
The High Court press release:
Mr Hager is the author of the book Dirty Politics. Mr Hager wrote Dirty Politics relying, to a
significant degree, on material hacked from the computer of Cameron Slater. Mr Hager obtained
that material from a person to whom he promised confidentiality.
Mr Hager stated on a number of occasions publicly that he knew who his source was, but that he would not disclose his identity. After the publication of Dirty Politics, Mr Slater complained to the police about the
unlawful access to his computer which had generated the material Mr Hager used.
In late-September 2015, as part of their investigation of Mr Slater’s complaint, the police
obtained a warrant to search Mr Hager’s home. They executed that warrant on 2 October.
During that search, Mr Hager raised a claim of privilege, based on s 68 of the Evidence Act
2006. Section 68 makes journalists not compellable in civil or criminal proceedings to answer
questions or produce documents that would disclose the identity of a confidential source. The
Court may, on application, override that protection if it considers the public interest in disclosure
of the identity of the informant outweighs the likely adverse effect of the disclosure of that
information. The police, once Mr Hager had made that claim, in general terms seized and
sealed, but did not search, Mr Hager’s computers and paper files. They were delivered to the
High Court in Auckland, where they remain. The police then commenced proceedings to have
Mr Hager’s claim to privilege determined by the High Court.
Notwithstanding, Mr Hager commenced these proceedings in which he sought judicial review of
the lawfulness of the warrant and of the police Search.
The High Court has determined that the warrant and the Search were unlawful. It has done so
principally because the application for the search did not draw the attention of the issuing officer,
a District Court Judge, to the particular issues that arise when the police apply for what is known
as a “media search”. Those particular issues are set out in the 1995 judgment of the Court of
Appeal in TVNZ v Attorney-General. Those issues reflect not only the general importance of
protecting the identity of journalists’ sources, but the public interest in the media’s role in
disseminating information and promoting free speech. Applicants for warrants owe a duty of
candour to the court to draw all relevant matters to the attention of the court, including matters
the consideration of which would suggest that an application for a warrant should be declined or
modified in some way.
The importance of that principle, together with the importance of the
issues relating to free speech and the dissemination of information, led the High Court to
conclude that in the absence of these matters having been drawn to the attention of the issuing
Judge, both the warrant and the search were fundamentally unlawful.
Mr Hager also challenged other aspects of the way in which the warrant was applied for, issued
and executed. The High Court declined to consider most of those claims as they raised disputed
and complex questions of fact which are not appropriate for determination on the basis of
untested affidavit evidence. The Court did conclude, however, that some aspects of the terms of
the warrant and of the way in which the search was conducted provided limited support the finding of unlawfulness.
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