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”