Update on the High Court case between Nicky Hager and the NZ Police

Yesterday, the New Zealand Police informed Nicky Hager through their counsel that they are electing not to appeal the decision of the High Court given in December last year. That decision held that the Police’s search of Mr Hager’s home had been “fundamentally unlawful”.

There are still other issues that remain unresolved.  These include the obtaining by the Police of Mr Hager’s private banking information without a warrant, and issues of costs and damages.  The case will continue to deal with those other matters.

However, Mr Hager says he is pleased that the Police have accepted the Judge’s decision that their actions were unlawful. The Police are not to contesting the finding that the warrant was unlawful. “This means the most important part of this saga is now concluded” said Mr Hager.

In light of this decision, Mr Hager is now entitled to the return of his belongings.  Mr Hager’s computer equipment and many of his documents have been held sealed at the Auckland High Court for over a year.

The Police have said they will work with Mr Hager to arrange through the Court for the return of those belongings.  Mr Hager hopes to collect his computers in person from the Auckland High Court next week.

Mr Hager said, “Having my work materials and machines kept from me for over a year has been a considerable inconvenience.  I will be relieved to have them back.”

NOTE TO MEDIA:

Mr Hager’s lawyer, Felix Geiringer, will be available for comment or more information on 022 0243402 after 5 pm.

Latest news: January 2016

Police won’t appeal ‘unlawful’ Hager search – 3 News

Hager decision won’t be appealed by police – Radio NZ

Hager gets computer back after cops opt not to appeal over ‘fundamentally unlawful’ raid – TVNZ

Police decide against appealing High Court ruling on illegal Nicky Hager search – Stuff.co.nz

New Zealand tumbles down the political corruption table – NZ Herald

Vindication: High court in New Zealand rules police raid on journalist Nicky Hager was illegal – Freedom of the Press Foundation

Public interest journalism under threat – NZ Herald

OIA request charges worrying sign – Otago Daily Times

The 100 greatest New Zealand works of non-fiction ever – The Spinoff

Coverage of High Court ruling

Monday, 28 December

Editorial: Police must honour right of free press – NZ Herald

Thursday, 24 December

IPCA to investigate Hager search – 3 News

Editorial: Being a judge not an easy role – Wanganui Chronicle

Wednesday, 23 December

IPCA to investigate complaint over police actions in Hager search – NZ Herald

Tuesday, 22 December

Greens lay complaint over Hager raid – 3 News

Greens lay complaint with police watchdog over raid on Nicky Hager’s home – One News

Standing up for human rights – journalists and judges – Stuff.co.nz

Greens lay complaint over unlawful Nicky Hager warrant – Radio NZ

Green Party complains to police watchdog over illegal Nicky Hager search – Stuff.co.nz

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Complaint to watchdog over Hager search – Otago Daily Times

Greens call on IPCA to investigate unlawful Nicky Hager search – Voxy.co.nz

Monday, 21 December

Criticism of Nicky Hager police ‘ridiculous’ – Radio NZ

A letter of thanks from Nicky Hager – The Standard

Hager and Collins win; Key joke loses – The Gisbourne Herald

Sunday, 20 December

Search ruling claimed as a win for journalists – Radio NZ

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Friday, 18 December

Nicky Hager on illegal police raid – RadioLive

Hager decision welcomed by expert – Newstalk ZB

Nicky Hager could soon be asking for his belongings back – Stuff.co.nz

Police deny the Hager house raid was politically motivated – TVNZ

No surprises: Judith Collins tipped to Nicky Hager ruling – NZ Herald

Hager decision: Why you should care – NZ Herald

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Hager: Police raid ‘weird overkill’ – 3 News

Search was a classic fishing expedition, says Nicky Hager’s lawyer – Radio NZ

Nicky Hager case ‘raises questions’ about political pressure on police: MPs – Stuff.co.nz

Labour says Police have become politicised – Newstalk ZB

Editorial: A powerful rebuke to the police – The Dominion PostCWc9Kt8VEAANgft

Bryce Edwards’ Political Roundup: Dirty Politics won’t die – Evening Report

A good decision. Now what? – The Pantograph Punch

Peters says Hager case latest example of police politicisation – Radio NZ

Hager search warrant deemed “fundamentally unlawful”. What a relief! – The Paepae

What was National’s role in the police raid on Nicky Hager? – The Standard

Gordon Campbell on the Police harassment of Nicky Hager – Scoop

The Panel: Police search illegal – Radio NZ

Nicky Hager talks on the police raid on his home re ‘Dirty Politics’ – RadioLive

Thursday, 17 December

Nicky Hager police raid ruling a win for journalism – NZ Herald

Nicky Hager thrilled with verdict: ‘I can’t do my job if I can’t protect my sources’ – One News

Nicky Hager wins ‘landmark’ case against police over search of home – Stuff.co.nz

Hager raid ruled unlawful – Newstalk ZB

Search of Hager’s home ruled illegal – Radio NZ

Police raid on Nicky Hager’s home unlawful – 3 News

Police raid on Nicky Hager’s home was illegal – RadioLive

Police house raid on investigative journalist Nicky Hager found to be unlawful – NZ Herald

Judge Rules “Dirty Politics” Search Illegal – LawFuel

Police raid on Hager ruled illegal – The Standard

Police Raid On Nicky Hager’s Home Ruled Unlawful! – Aotearoa Wider Perspective

Hager v AG judgment, and police responses

The reserved judgement of Justice Denis Clifford can be found at the following link.

Hager v AG judgment

Media summary issued by the High Court

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.

**

Police response to decision by Justice Clifford

Assistant Commissioner Malcolm Burgess:

“Police received Justice Clifford’s decision this afternoon. We will take time to study the decision and consider further legal options with Crown Law”

High Court finds police raid on Nicky Hager was illegal

Wellington High Court judge Justice Clifford issued his judgement today on the legality of the police search of Nicky Hager’s home on 2 October 2014. The judge found that the search was illegal.

He said that the Police had failed to disclose relevant information to the Judge who issued the warrant. As a result, he formally declared that the warrant was “fundamentally unlawful”.

He also found that the search was therefore unlawful. Justice Clifford also expressed concerns about other aspects of the Police’s actions. Mr Hager said he is very happy about the decision, for his family and because of the important principles it upholds.

“The heart of the case is the public’s right to receive information about the actions of people in positions of authority.

This decision acknowledges that confidential sources used in investigative journalism, in this case my book Dirty Politics, deserve legal protection.”

More hearings will follow on other police actions taken against Mr Hager and on the subject of costs and damages.

But Mr Hager said this decision was the most important one, affecting all news media and also present and future whistle blowers.

“This decision is very good news for New Zealand journalism,” he said.

Mr Hager thanked the large numbers of people who donated money to help cover court costs and the experts who wrote affidavits supporting his case.

NOTE TO MEDIA:

Mr Hager and his lawyers will be available to answer questions outside the Wellington High Court in Molesworth Street at 4:45 pm today. Me Hager’s lawyer, Felix Geiringer, will also be available for comment or more information on 022 0243402 after 5:15 pm.