LIVE REPORTAGE: Hager v Attorney-General case

** WEDNESDAY, 15 JULY ** The hearing has just concluded. Justice Clifford has reserved his judgment, which he says he’ll deliver “as soon as is practicable.” Mr Hager’s legal team and Crown counsel have exchanged pleasantries and the various parties and spectators are departing. On behalf myself and my colleague, Emily Menkes (who has been tweeting throughout the hearing), thank you for following our coverage. ** Justice Clifford has asked when the law about search warrants dates back to. Julian Miles, QC: “I have no idea.” Felix Geiringer isn’t sure, either. Justice Clifford: “I quite like this sort of information,” He says it’s interesting and contextual. ** Julian Miles, QC has just told Justice Clifford that, in applying for the warrant, the police failed to make the case that they could find any evidence to justify the search. Mr Miles was dealing with this issue before the lunch adjournment, when he argued that it was recognised that a search warrant is very invasive; it should not be issued unless there are reasonable grounds to believe that the facts and the propositions on which it is sought are true. He also pointed out before the adjournment a New Zealand Law Commission report that listed different approaches to search warrants in overseas jurisdictions. Mr Miles says British, US and Hong Kong authorities all have the option of using significantly less invasive measures. Mr Miles says that US authorities can issue subpoenas to journalists instead of search warrants. In Britain, the police have the option of issuing production orders instead, while Hong Kong has a complex three-tier regime. ** The court has resumed. Julian Miles, QC, is continuing his submissions. He is raising an issue about Nicky Hager’s source, “Rawshark,” which Mr Hager has asked him to raise. Mr Miles says that the Crown’s lawyer, Brendan Horsley, claimed that the information Rawshark gave Mr Hager about blogger Cameron Slater was later dumped, as if to suggest that all Mr Slater’s information was released, or that it was handled irresponsibly. However, Mr Miles says of Rawshark that “He was actually very careful in the way he released information” to Mr Hager and to three other journalists. Following the publication of Dirty Politics, Prime Minister John Key had challenged Mr Hager to prove the accuracy of its contents. In response, Rawshark began to drip-feed information to the public. Mr Miles say it is correct that there was an accidental release by Rawshark of some sensitive information from Mr Slater’s hacked files, for which Rawshark accepted responsibility; but he insists it is wrong to characterise Rawshark as irresponsible. ** The court has been adjourned until 2.15. ** Again, Mr Miles is stressing that the police have an obligation of “absolute candour” to any judge considering a warrant, including candour about all the relevant facts and about any arguments that it might be inappropriate for a warrant to be issued. Mr Miles says the law requires the warrant application comes before a judicial officer. When it’s brought before a judge, the judge has a function, and that function would be pointless if the only facts presented to the judge were those favourable to the police. “It seems unarguable to me that there was a duty” to bring before the judge all the relevant facts and law, “and they clearly didn’t.” ** Mr Miles is arguing that it’s a fundamental rule that only in exceptional circumstances should a warrant be issued to search and seize a journalist’s source material because of the potential chilling effect. He says that the right of journalists as defined in Section 68 of the Evidence Act 2006 now defines the way in which journalists are treated – that it is a presumptive right: if the journalist has received confidential information and promised confidentiality, they are entitled to legal protection. ** Mr Miles says that, broadly-speaking, what was missing in the warrant application presented to the District Court judge who considered it were a number of facts, legal propositions, and other relevant matters. He says that the police had an obligation to include in their warrant application information that wasn’t included. In short, the fundamental obligation of candour that the police owed to the judge considering the warrant was not honoured, the Bill of Rights Act was not given due consideration, and the search inevitably became unreasonable and disproportionate. ** Brendan Horsley has concluded his submissions. Julian Miles, QC, Mr Hager’s senior barrister, is now addressing Justice Clifford in response to some of the points the Crown has raised in its defence. ** Mr Horsley is submitting that, other than the breach of privilege which the Crown has already accepted:

• The actions taken by the police during the raid on Nicky Hager’s home were no more than were necessary to secure material that they were properly authorised to search and seize;
• That there has been no breach of the privilege; that the attempted access of a Hushmail account and a remote URL did not lead anywhere;
• That the conduct of the police officers involved in the raid was consistent with what was a difficult search, where it was difficult to ascertain what documents were privileged and which were not, and to try to be reasonable in the execution of that search; and
• That the materials seized from Mr Hager are now properly preserved.

  He adds that an application was brought before the court (by Mr Hager) “with due haste” to claim privilege. The consideration of privilege by the court, says Mr Horsley, is the point at which much of the raid’s alleged “chilling effect” dies, and where the bounds between public interest in the enforcement of crime versus the public interest in protection of journalists’ sources will be determined. ** Justice Clifford and Mr Horsley are now grappling with the way the law applies to the search and seizure of material when an email account or remote website address are involved and cannot be sealed in the way a hard copy document can be placed in a evidence bag and sealed – as was the situation in this case. Justice Clifford: “You can’t preserve it, can you? You’re having a look.” He adds: You can’t clone it, you can’t see it…you’re effectively going to search.” He suggest that there is a risk that there’s material that is relevant to the investigation, but it could be lost – for instance, if someone enters that website and deletes that material before the police could do so. “So you try and search the target database.” He adds that, in this area, electronic records make the law relating to search and seizure difficult. “Yes, sir,” replies Horsley. “They do make it difficult.” Mr Horsley appears to be saying that the police were accessing the electronic records under discussion to assess whether there was anything relevant. The question is whether or not this accessing breaches the privilege claimed by Mr Hager. Mr Hager’s lawyers say it did; the Crown says it did not. ** There has just been an admission by the Crown that there was a breach of Mr Hager’s privilege in that a document found in his home was photocopied at the scene by police and emailed to another officer in Auckland, who then began inquiries. Mr Horsley say: “That document should not have been emailed during the course of the search.” He say it contained the name of somebody who the police were already aware of and had already investigated. The emails have since been deleted, and no further inquiries were made about the person. “It certainly was unreasonable for that breach to occur,” says Mr Horsley. But he argues that the breach was not sufficiently serious to render the search of Mr Hager’s home unlawful. ** The court is back in session following the morning break. A brief summary of where we are at: Mr Hager’s legal team has argued during this hearing that the respondents in this case – the Attorney-General; the New Zealand Police; and the Manukau District Court (one of whose judges issued the warrant to search Nicky Hager’s home and source materials) acted unlawfully in deciding to seek the warrant; in conducting warrantless searches of Mr Hager’s private information prior to the raid; in applying for a warrant; in issuing a warrant; in executing a warrant; and in retaining Mr Hager’s seized property. Mr Horsley had already responded to some of the above-mentioned claims, and just before the break he was arguing that the warrant was lawful and that the search was carried out lawfully. It appears that he is about to deal with some of the particular breaches of privilege that Mr Hager’s lawyers say the police committed after Mr Hager claimed privilege over his source material. ** The court has now adjourned for the morning break. ** The officer-in-charge has said in written evidence that police hoped that Mr Hager would be home when they launched the search. The only steps that were taken when the police arrived and found the only person home was Mr Hager’s daughter, involved conducting an assessment. “In my submissions,” says Mr Horsley, “both the commencement of the search, the guidance the police had, and their conduct during the search, were reasonable, courteous and lawful.” ** Mr Horsley says that police knew that Mr Hager was able to claim privilege over his source material. The officer-in-charge of the search has said in an affidavit that: “I was aware that if he did so, his claim would need to be determined by a High Court judge, and the documents would need to be held until that privilege claim was determined.” The police went to Mr Hager’s address prepared to seal documents, Mr Horsley says. ** Mr Horsley adds that, from 9am to the conclusion of the search, either Steven Price, or Mr Price and Felix Geiringer – Mr Hager’s lawyers – were present at the scene of the search or involved in what was going on. He adds that “The search was conducted in the least possible intrusive manner,” and quotes evidence from the officer-in-charge of the search that he (the officer-in-charge) stressed that “All officers should behave professionally” and that only as a last resort should force be used to gain entry to Mr Hager’s home. A minimum of disruption was to be caused to other occupants. ** Now Mr Horsley is referring to the “Statement of Intent” that was drawn up by the police prior to the search of Mr Hager’s home. It says that Mr Hager is to be treated as a witness, and that any damage caused in the course of the search is to be fixed. He says the search itself was not a turning upside down of Mr Hager’s house. He says it was not a “raid,” as Mr Hager’s senior barrister, Julian Miles, QC, has claimed. Instead, “it was carried out in a polite and friendly way.” ** Now Mr Horsley appears to be suggesting that the District Court judge who issued the warrant for the Hager raid did not have to make any orders in the warrant relating to privilege – in this case, the privilege relating to the protection of journalists’ sources – because, when privilege is triggered by a search, statutory conditions come into play. If I understand him correctly, he is saying that there are sufficient protections for the privilege in the statute itself, without the need for additional conditions being imposed by a judge considering a warrant application. ** Mr Horsley is telling the court that the warrant application contained detailed evidence as to why Mr Hager’s source information was required, and that it was obvious that he was a journalist (and that journalistic privilege would therefore be an issue). He says that Mr Hager was referred to in the warrant application as a political author, and quotes Justice Robert Dobson, who has heard pre-trial arguments in this case, as saying that one would’ve had to have been living under a rock at the time the warrant was sought not to have known about Hager’s book, Dirty Politics. ** Mr Horsley has told the court that laws like the Search and Surveillance Act 2012 – under which the warrant for the Hager raid was issued – are “provisions that are designed to impinge upon, in some way, shape or form, our rights to privacy….They are codified, justified limitations on those rights.” To that extent, says Mr Horsley, there is no need to go beyond what the words of the provisions in the statute and bring in tests like “proportionality.” “In this particular case, the statute prevails.” ** The court is now in session, and Mr Horsley is continuing to outline the Crown’s case. He begins by returning to the issue of conditions surroundingsearch warrants. ** Mid-afternoon yesterday, Mr Geiringer – the last member of Mr Hager’s legal team to have addressed the court – completed his submissions. Crown lawyer Brendan Horsley, a deputy solicitor-general, then began outlining the case for the three respondents: the Attorney-General; the New Zealand Police; and the Manukau District Court. He will continue this morning, assisted by Crown lawyer Kim Laurenson. We asked Mr Horsley yesterday before he began his submissions if he’d be providing a media summary of the Crown’s case. He told us that he did not have a summary. We will ask him this morning if the Crown would like to provide one in the next day or two, and, if so, we will post it online as soon as possible. Meanwhile, you can get an idea of the approach Mr Horsley proposes to take today by reviewing our summary from yesterday afternoon of his introductory remarks. Mr Horsley said he will:

• Outline the facts behind this case;
• Deal with the application for the warrant to search Nicky Hager’s home and materials;
• Make submissions around the duty of candour that Mr Hager’s lawyers say the police had to the Manukau District Court judge in applying for the warrant, and the claims that the warrant was too broad;
• Deal briefly with the “proportionality argument” and the search itself, including the five or six breaches of privilege alleged by Mr Hager’s lawyers;
• Examine some of the relevant case law; and
• Take any questions that Justice Clifford may have.

  Mr Horsley said yesterday that he estimated it would take until “at least” midday today to complete his submissions. ** Readers who have been following our coverage will hopefully by now be well aware of the central issues behind the judicial review that is being heard here before Justice Denis Clifford. For those who are joining us for the first time – or for anyone who would like to read an outline of the matter from Mr Hager’s perspective – you can view, under our coverage down the page from Monday, the media summary that was prepared and supplied by his legal team, which comprises Julian Miles, QC; Felix Geiringer; and Steven Price. Once again, we should emphasise that this summary presents the plaintiff’s case – that is, Mr Hager’s position, much of which is contested by the Crown. As we have stressed, it’ll be for His Honour Justice Clifford to determine the merits of the arguments made by the two parties in what will almost certainly be a reserved decision. ** Good morning from courtroom one at the High Court at Wellington; it’s approaching 10am and the start of the third – and most likely final – day of the Nicky Hager hearing. My thanks to my colleague Emily Menkes for filling in for me in the last 45 minutes of yesterday’s hearing. ** TUESDAY, 14 JULY ** Mr Horsley says that it was reasonable for the police to believe that communications between Mr Hager and Rawshark would have, at least in part, taken place on the internet. He also discusses the nature of search warrants, whether guidance for them is needed, and the issue of discretion with the grant and the execution of warrants. The case has now adjourned for the day. It resumes tomorrow at 10am. ** Justice Clifford asks Brendan Horsley whether the lack of success of the police’s own investigations, including into Mr Slater’s computer, suggested that it was unlikely that they would find material on Mr Hager’s system which was similar. Horsley replies that the “logic-based decision” to apply for the Hager warrant was made on the reasonable grounds that evidential material was likely to be found at Mr Hager’s address. He also states that the Mr Hager’s lawyers have made much of the police compiling a list of the people who had access to Mr Slater’s computer, but not investigating further. He argues that this does not take into account the external nature of the attack on Mr Slater’s computer, by someone who was skilled with hacking. Horsley adds that Mr Hager himself has said that Mr Slater’s computer was externally hacked, and not the subject of an internal break-in. ** Brendan Horsley clarifies that there is an ongoing investigation to discover the identity of Rawshark. He says: “I don’t intend to comment on what steps are continuing.” The decision to apply for a warrant was “not made hastily.” He said it was made after reviewing police procedure and journalistic privilege. With such steps taken, the warrant application submitted to the District Court judge was “not capable” of being misleading. Mr Horsley will deal with the issue of what supplementary material could have been seized separately. ** It is just before 4pm and the court has resumed for the last session of the day. I now have to leave the court but will continue reporting tomorrow morning. My colleague Emily Menkes, who has been tweeting details of this hearing, will take over for the remainder of today’s session. ** The court has now adjourned for 15 minutes – the afternoon break. ** According to Mr Horsley, the discussion thus far – and one assumes that he is referring to this hearing – “only drives home that a court’s investigation into, and review of, police investigations is an inherently fraught exercise, and one that is not really amenable to judicial review.” ** Mr Horsley is now telling Justice Clifford that, following Mr Slater’s police complaint about the hacking of his private and professional information, Mr Hager was initially regarded as a suspect – suspected of holding stolen property. The police looked into Mr Hager as a suspect and failed to find any evidence. It appears from what Mr Horsley is saying that Mr Hager was then reassessed as being a witness, albeit an “uncooperative witness.” “I say uncooperative because of the public statements that Mr Hager had made about protection of his source. He was saying in public that he had been advised to get rid of the material and was aware that his source was the subject of a criminal investigation.” ** Mr Horsley adds that, “somewhat ironically,” Cameron Slater has himself been held by the High Court (in another case) to be a journalist. “So, this was the hacking of a journalist’s computer, and the removal of privileged information.” It has been claimed that the hacking was altruistic, says Mr Horsley; but that is contested. He points out that it took place in the aftermath of comments Mr Slater made about the death of a young man on the West Coast, and argues that the hacking was “motivated by revenge, malice or vengeance.” He says the theft of Cameron Slater’s information was designed to embarrass Mr Slater, and that the information was disseminated on the web “in gross form.” “That is, of course, what eventually happened,” says Mr Horsley, in a reference to the “Whaledump” of Mr Slater’s information by Rawshark some time after the publication of Dirty Politics. ** Mr Horsley says that it is accepted by both Mr Hager and the Crown that Mr Slater’s computer was accessed unlawfully, and that a vast quantity of material was stolen. He describes this as 10 years of personal medical details; psychological details; and Mr Slater’s correspondence with numerous sources, including Members of Parliament. In short, the hacked information included a massive amount of Mr Slater’s private life and working life over an extensive period of time. ** Mr Horsley says he will:

• Outline the facts behind this case;
• Deal with the application for the warrant to search Nicky Hager’s home and materials;
• Make submissions around the duty of candour that Mr Hager’s lawyers say the police had to the Manukau District Court judge in applying for the warrant, and the claims that the warrant was too broad;
• Deal briefly with the “proportionality argument” and the search itself, including the five or six breaches of privilege alleged by Mr Hager’s lawyers;
• Examine some of the relevant case law; and
• Take any questions that Justice Clifford may have.

  Justice Clifford has asked for an estimate of how long the Crown’s submissions will take. Mr Horsley suggests that he will take “at least” until midday tomorrow. ** Felix Geiringer has just concluded his submissions. The senior Crown lawyer, Brendan Horsley – a deputy solicitor-general – is about to present the Crown’s case ** Mr Geiringer has told Justice Clifford that the police knew that privilege was being claimed over Mr Hager’s source material because they spoke with Mr Hager by phone not long after they raided his home. The police made an audio recording that covered the duration of their search, and that documented what then happened: Mr Hager’s daughter, who was home alone, contacted her father, who was in Auckland. Mr Hager spoke several times by phone to the officer in charge of the search, and was given an assurance that the police would deal with all the material as if it were privileged. ** The court is back in session. Before the court adjourned for lunch, Mr Geiringer was outlining what Nicky Hager’s legal team alleges are police breaches of Mr Hager’s journalistic privilege – the privilege he asserted under Section 68 of the Evidence Act 2006 when he learnt that the police were searching his home. Mr Geiringer has told Justice Clifford that “There are hundreds of breaches of privileges in this case,” but that he is only focusing on the more serious ones. He referred in some detail to one of these before the adjournment. Other alleged breaches include:

• That the police looked at a computer they were only supposed to be cloning, took internet information from that computer, then used that information;
• That the police researched details of a mobile phone SIM card, which they found during the search of Hager’s home; and
• That the police took notes of privileged material

  Mr Geiringer said before the lunch adjournment that he was outlining these acts “Because bad faith is being alleged here, Your Honour.” He is now going into greater detail about some of these alleged breaches of privilege. ** The court has now adjourned until 2.15pm for lunch. ** According to Geiringer, the first breach of privilege occurred when the police found an email exchange at Nicky Hager’s home between Mr Hager and someone else who the police at one stage had suspected of being Rawshark. A detective at Mr Hager’s home had photocopied this document and emailed it to a colleague asking that colleague to “do some inquiries, please.” That detective then made a number of open source inquiries. ** Felix Geiringer is now outlining steps the police took in breach of the claim of privilege that Nicky Hager and his lawyers asserted as soon as he learnt that the police were raiding his home and sifting through his source material. That privilege was asserted not long after the police had entered Mr Hager’s home, and required the police to seal the source material prior to a court hearing to determine whether they could examine it. ** Mr Geiringer has added that one Crown witness – it’s not clear whether this was a police officer or a police technical adviser – filed a supplementary affidavit in which he accepted that he’d overstated things when he said in an earlier affidavit that some investigations had been concluded, when in fact they were ongoing. ** Justice Clifford is asking Mr Geiringer to clarify whether he is saying the relevant police affidavits are merely inaccurate or whether he is suggesting they were made in the knowledge they were false. “People can mislead by omission.” He adds: “So far, I have not heard an allegation of bad faith.” Mr Geiringer responds: “I can’t go that far. I can’t say it [the inaccuracies in the police affidavits] was deliberate.” Justice Clifford has asked Mr Geiringer to spell out “What are the big three” points about their inquiries that the police – in applying for the search warrant – should have told the District Court judge who considered the warrant, but didn’t. Mr Geiringer says that, among other things, the police should have told the District Court judge that they hadn’t talked to anyone who had access to Mr Slater’s website – that they knew there were such people, but aside from Mr Slater they hadn’t talked to them. ** Brendan Horsley, the senior Crown lawyer, is now responding to Mr Geiringer’s last statement. “I’m reluctant to object, but there’s an allegation that these [police] affidavits are not candid.” Mr Horsley says that, if that’s the case, Mr Hager’s legal team should have applied earlier to cross-examine the police officers who made the affidavits. ** The court has resumed. Felix Geiringer is continuing his submissions. He says that the police not only had a duty of candour to the District Court but that they have a duty of candour to this court. He suggests that police statements of evidence in both cases were – and are – not true statements about the state of their investigations. ** The court has adjourned for 15 minutes – the morning break. ** Mr Geiringer has just said that the police investigation into Rawshark’s identity was in some ways “woefully inadequate” and failed to take the steps that even a lay person would haven taken. “It’s not rocket science. It’s not computer science.” Again, the point he is making here is that applying for a warrant to enter a journalist’s home and search his source material should be a last resort, and not to be undertaken before less drastic investigative steps have been taken. He said earlier that the failure of the police to investigate obvious leads is documented in their internal emails, which the police have had to provide to Mr Hager’s lawyers under discovery. He added that these emails were provided to Mr Hager’s legal team very late. ** Felix Geiringer has been arguing that the police should have demonstrated greater candour in their search warrant application. But Justice Clifford has challenged Mr Geiringer about the level of detail regarding the police investigation that Geiringer is suggesting the police should have presented to the judge who considered their warrant application. “If they’d gone into all this detail the District Court judge would have been confused.” ** Mr Geiringer is going through a number of legal cases that Hager’s legal team maintains are relevant to this hearing. Among other things, he is arguing that in the process of applying for and issuing search warrants, close attention needs to be paid – by the police and the courts – to freedom of the press, freedom of speech and freedom from censure. Some of this material is dealing with matters raised yesterday by Julian Miles, QC, and Steven Price, albeit from different angles and in an expanded manner. It appears that Mr Geiringer is suggesting that some of the information in the warrant application should have alerted the judge – in this case District Court Judge Ida Malosi – of the need to more closely scrutinise the application. He emphasises, however, that “This is a failing of the police not to be more forthright and more candid” with the [Manukau District] court about the state of their investigation into the identity of Rawshark. For instance, before the police applied for the warrant to search Mr Hager’s home and source material, they had made inquiries of TradeMe, Air New Zealand, Jetstar and Westpac, and of email providers Google and Yahoo – inquiries that had not been completed. In one case, the police had been asked to supply a production order, which had not been done at the time they applied for the warrant. Mr Geiringer says that Judge Malosi should have been told that these were avenues for investigation and that they had not been fully explored. The suggestion is that the police should have exhausted other less invasive inquiries into Rawshark’s identity before adopting a more invasive course – applying for a search warrant to raid Mr Hager’s home. Again, Mr Geiringer stresses that the police should have been more candid with the judge when applying for the warrant about what they had done or not done. He is listing in further detail the inquiries – into IP addresses, for example – that the police did make or could have made which were not disclosed in the warrant application. “None of this was told to the judge.” Some of these were “obvious leads,” yet they were not pursued – or the inquiries were not completed – before the police sought the search warrant for the “Hager raid.” ** The hearing has attracted a reasonable audience this morning. The press bench is full – there are eight journalists present, and blogger Giovanni Tiso is also here reporting for the media website Scoop.co.nz. A documentary cameraman is continuing to record the proceeding and there are 20 people in the public gallery, including Mr Hager and the two plain clothes police officers who were present yesterday. ** The court is back in session and Felix Geiringer (for Mr Hager) and Brendan Horsley (for the Crown) are addressing the court on some procedural issues. While that is happening, we should point out that we’ve had confirmation from Nicky Hager’s legal team that information about Mr Hager that the police sought from TradeMe, Air New Zealand, Jetstar and Westpac – as part of their attempts to discover Rawshark’s identity – was sought without a warrant or production order. This matter was first referred to yesterday. Mr Geiringer has now begun his submissions, and has indicated that he will be finished around midday. The Crown lawyers – Mr Horsley and Kim Laurenson – will then make their submissions. ** A reminder that this matter is being heard by Justice Denis Clifford. Most of yesterday’s session was taken up with submissions from Mr Hager’s senior barrister, Julian Miles, QC. Late in the day, another of Hager’s lawyers, Steven Price – a Victoria University of Wellington academic, and an acknowledged expert in media law – began his submissions. A third member of Mr Hager’s legal team, barrister Felix Geiringer, is also expected to address the court today. [caption id="attachment_5449" align="alignnone" width="300"] Nicky Hager arrives at the Wellington High Court with his lawyers Julian Miles QC (left) and Felix Geiringer (centre).[/caption] ** It is just before 10am at the High Court in Wellington, on day two of the Hager hearing – a judicial review into the lawfulness of the police raid last October on investigative journalist Nicky Hager’s home and the search and seizure of a substantial quantity of his source material. The hearing is expected to conclude on Wednesday. As most readers will be aware, the raid was in response to a complaint made to police by blogger Cameron Slater, whose personal and professional data was allegedly stolen by “Rawshark” – an anonymous hacker, who passed the material to Mr Hager. Mr Hager used the material as the basis of his book, Dirty Politics, which was published shortly before last year’s election. In the course of investigating Mr Slater’s complaint, the police applied for, were granted, and subsequently executed a search warrant that was issued by Judge Ida Malosi at the Manukau District Court under the Search and Surveillance Act 2012. (The fact that the warrant was issued by a Manukau District Court judge is the reason that that court is one of the three respondents in this case, in addition to the Attorney-General and the police.) ** MONDAY, 13 JULY ** Underlining a point made by Julian Miles, QC, earlier today, Steven Price suggests that other journalists were looking on in the wake of the Hager raid, worried that something similar could happen to them. He has also referred to a question raised earlier by Mr Miles: Did the police exhaust the reasonable alternatives that were available to them before the “serious invasion” – his words – that the search of Mr Hager’s home and material entailed? The case has now adjourned for the day. It resumes tomorrow at 10am. ** A practical as well as legal matter is being raised by Steven Price: he is arguing that the police went into Mr Hager’s home effectively unable to differentiate between what they were looking for – information about Rawshark’s identity – from all the other source material. In short, he’s saying that in sifting through the highly-sensitive source material of an investigative journalist, the police were breaching privilege from the outset of the raid. “Damage is being done as soon as police look at source material to determine its relevance.” ** A number of issues are now being traversed by Mr Price – some of them briefly, as many have already been raised by Julian Miles, QC. He says that “There is great value in encouraging sources to go to journalists.” Once again, the not-so-hidden premise is that the Hager “raid,” as Mr Miles described it, will have a chilling effect on sources doing this. ** Mr Price is now arguing that the character of the journalist is relevant to this case. He says that “Mr Hager’s journalism is a model of responsibility” – that, in writing Dirty Politics, he went through the material provided by Rawshark (the blogger Cameron Slater’s personal data) and meticulously removed any irrelevant personal information. ** Price is now arguing that the search of Mr Hager’s home was disproportionate because the outcome was disproportionate. He says the courts are in the business of ensuring rights are not violated in a disproportionate way. Proportionality will always be subjective, says Price. But he is suggesting that it’s a relatively straightforward process to evaluate:

• Are rights in play?
• Are they being harmed?
• Are the reasons for breaching those rights good enough?

  ** Price goes on to argue that “They [the police] didn’t grapple with these questions and they didn’t come to the right answer.” He has argued that they should have thought about four things:

• What rights were in play here?
• How are these rights likely to be affected by this search?
• To what extent will they be affected by the search?
• Are there some other ways we could investigate which wouldn’t infringe so much on (in this case) Mr Hager’s rights?

  ** Mr Price says that Hager’s legal team is mindful that we can’t expect the police to conduct a detailed analysis of proportionality every time they apply for a search warrant. But he says that the fact that freedom of expression was involved means “They should have tried harder” – that they should have thought through the issues more carefully. ** Julian Miles, QC, has now concluded his submissions. Deputy solicitor-general Brendan Horsley has raised a procedural point, and Steven Price has now begun to address the court. Mr Price says his job is to show that the police action (presumably in applying for and executing the search warrant) and the Manukau District Court’s action (presumably in issuing it) was disproportionate – and that this matters because the police and the court had a duty to be proportionate. ** Also, there are far fewer journalists present that there were at the start of the hearing. This morning the media bench was full, and the judge invited media who were seated in the public gallery to use a bench usually reserved for counsel. Blogger Giovanni Tiso is now the only one remaining there, while five journalists remain at the press bench. A documentary cameraman is recording the hearing. ** On the subject of media law, the detail that has been – and is being – traversed in this case may be fascinating for media law scholars or journalists, but the public gallery in courtroom one is now far from full, with only seven people present, among them a pair of plain-clothes police officers and Mr Hager himself. Mr Miles has just submitted some documents to Justice Clifford with the comment: “I do apologise for the amount of material I’m giving you, Your Honour.” ** The court is back in session. Mr Miles has just referred to the issue of “proportionality” – whether the decision by the police to apply for a warrant to search Mr Hager’s home and seize his journalistic material in an attempt to discover Rawshark’s identity was proportional in the circumstances. Miles says that the third member of Mr Hager’s legal team, Steven Price, will address this issue later. As well as being a practicing lawyer, Mr Price is a Victoria University academic who specialises in media law (he is the author of a book on the topic). ** Mr Miles has told Justice Clifford he estimates it will take him half-an-hour to conclude his submissions. He says that after he’s finished, his colleague Felix Geiringer – another member of Mr Hager’s legal team – will make some submissions. The court has now adjourned for 15 minutes for the afternoon break. ** As we approach the afternoon break, Mr Hager’s lawyer, Julian Miles, QC, is continuing to outline a range of legal cases and precedents that bear upon this hearing – primarily, the law here and overseas relating to the protection of journalists’ confidential sources. At present he is talking about European Union law and how the European Union is committed to maintaining the confidentiality of sources. ** As has been the case throughout today’s hearing, there is a significant amount of to-and-fro between Julian Miles, QC, and Justice Clifford, who appears to be very engaged by the detail and the issues being raised. The exchanges are polite and punctuated by the occasional bit of humour. Thus far, the Crown lawyers – Brendan Horsley, a deputy solicitor-general, and Kim Laurenson – have not objected to any of Mr Miles’ submissions. Of course, that is not to suggest that the two sides are in agreement on the issues; however, the hearing lacks the sort of tension or combativeness that is sometimes evident in other cases. ** Underscoring a point made earlier in today’s hearing, Mr Miles quotes Hersh – who is well-acquainted with Nicky Hager’s work – as saying that “[Hager’s] brand of fearless reporting is essential to democracy.” Miles is now referring to Dr Gavin Ellis’ affidavit. (For those readers who are not familiar with our media landscape, Dr Ellis is a University of Auckland academic specialising in media studies, an experienced journalist, and a former editor of The New Zealand Herald.) Ellis has stated in his affidavit that an absence of protection acts as a disincentive to journalists’ sources. It also means journalists must take time-consuming measures to evade surveillance, and that that cannot be in the public interest. Dr Ellis also stresses the “universal belief” by journalists that confidential sources should not be revealed. Dr Ellis’ affidavit says that if potential sources cannot rely on (Evidence Act) privilege and protection to ensure their identity is not revealed, they will have two choices:

• To make the information they have public, “and bear the consequences”; or
• To stay silent.

Dr Ellis suggests that, in the absence of protection (in the form of legal privilege), most confidential sources – or prospective sources – will choose to remain silent. ** We have now managed to upload the media summary prepared by Mr Hager’s lawyers. Again, we should stress that this is Mr Hager’s position. The defendants contest it, and its legal merits will be ultimately determined by His Honour Justice Clifford. ** ** Mr Miles has returned to the theme of whether it is lawful for a journalist to use unlawfully obtained material. He quotes from the affidavit provided in Nicky Hager’s support by Pulitzer Prize-winning American journalist Seymour Hersh, who states that every confidential source has broken some rule or regulation. Hersh says that if it is lawful for the New Zealand Police to act the way they have in searching Hager’s home and seizing his journalistic material, this will deter confidential informants. ** It’s just after 2.15pm and the “Hager hearing” at the High Court at Wellington, before Justice Denis Clifford, has resumed. Mr Hager’s barrister, Julian Miles, QC, is addressing the court. During the lunch adjournment we were able to obtain a digital version of the media summary of Mr Hager’s position, as prepared by his lawyers. (They distributed hard copies at the start of the hearing, and have confirmed that we are allowed to publish this information in its digital form.) It is important to emphasise that this document is putting Mr Hager’s position; the defendants in this hearing – the Attorney-General, the police, and the Manukau District Court – doubtless have a different perspective, which we will hear in due course. ** The court has now adjourned for the lunch break. ** The famous “Spycatcher” case has been mentioned by Julian Miles, QC, as an example of where the public interest outweighs the fact that the material provided has been stolen – in the Spycatcher case, material was obtained in breach of the Official Secrets Act. “I was involved in that case – on the side of the British government, unfortunately – and they failed. And they failed in New Zealand and they failed in the UK, and the reason [they failed] was because even though [Peter Wright, the former British intelligence officer who wrote the book] broke the Official Secrets Act, the quality of the information” was in the public interest. ** Justice Clifford and Mr Miles, QC, are discussing the law surrounding the publication of stolen material. Miles says that the approach of journalists, as expressed in the affidavits presented in this case by former New Zealand Herald editor (now academic) Dr Gavin Ellis, Pulitzer Prize-winning US journalist Seymour Hersh, and New Zealand Herald reporter David Fisher, is that the key issue is the quality of what is provided (as opposed to the manner in which it is provided). Justice Clifford replies that that may be what journalists think, but the question is what the law requires. ** The search of Hager’s home was “about as invasive as you could get,” says Miles. He says that there were less invasive ways to make inquiries into Rawshark’s identity than raiding Hager’s home and going through his journalistic material, and that the police were under an obligation to ensure that those less invasive ways were followed. ** “It’s the search itself which is so chilling,” says Miles – coupled with the inevitability the raid would “hoover up” all the other source information the journalist had in his possession. “I’m calling it a raid. I’m not exaggerating. That’s exactly what it was – a raid on the confidential information held by a journalist.” ** Julian Miles, QC: We say that there’s an overwhelming argument that the decision to apply for the warrant was illegal. We also say that the way that the police conducted the search was illegal. The police not only sifted through Hager’s journalistic material and seized some of that material, they breached the privilege Mr Hager and his lawyers asserted as soon as they learnt of the raid – by photographing the material, emailing the material to other police officers, and initiating further inquiries, without waiting for a court to rule on the question of privilege. ** Miles says the police warrant was invalid because it was too broad – and further: “We say that the decision to apply was illegal.” He says the police were aware that Nicky Hager had promised confidentiality to his source (“Rawshark”), and that he had publicly stated after publication of Dirty Politics that he had returned all the documents to the source. Miles says that the police were also aware that Rawshark was highly-sophisticated, technically, and had been taking precautions to remain secret. He says any belief by the police that they could simply walk into Mr Hager’s house and seize a computer that would enable them to learn Rawshark’s identity was “improbable.” ** Mr Miles says that Hager’s book, Dirty Politics, showed systemic abuse of power by senior members of the National Party, including people in the Prime Minister’s office and a senior cabinet minister. “There’s no doubt about the importance of the book. There’s no doubt about the integrity of the book.” Investigative journalists David Fisher and Seymour Hersh have given affidavits for Nicky Hager. Miles has also quoted University of Otago academic Bryce Edwards as saying Dirty Politics is a book of “significant public interest.” ** Miles says that the raid on Mr Hager’s home “went to the heart of Mr Hager’s…ability to get the confidence of future sources” ** Mr Miles is speaking of Hager’s credibility and the importance of his work. “This is a man who has written six serious books about the abuse of power.” He says Hager is not partisan – that he has been as critical of abuses of power involving the Labour Party as he has been of the abuse of power he details in Dirty Politics. ** Miles details what was seized by the police, including computers, hard drives, and sensitive source material. He says the police essentially “turned the house upside down.” ** Julian Miles, QC, is speaking now. He says the police failed to give adequate consideration to the Bill of Rights Act and the Evidence Act, among other things, when applying for the warrant. Miles says the raid on Hager’s home “was extremely invasive.” It lasted for 10 hours. It involved six police officers. Hager’s daughter was home alone and had to endure the search, which should never had happened in the way it did. ** There has been further discussion between the judge and several media about who may report this hearing. Blogger Giovanni Tiso has been granted permission to report after a request by Scoop editor Alastair Thompson, who said Mr Tiso is reporting with him for Scoop. Julian Miles, QC, has just asked if Mr Hager can take notes. Justice Clifford has consented to this and invited Mr Hager to use one of the benches in the body of the court. The judge has also imposed a 10-minute delay for media who are tweeting or reporting online from the court. This is to allow time for either Mr Hager’s lawyers or the Crown lawyers to apply for a suppression order during the hearing, and for the judge to impose such an order – before media publish such information. ** Justice Clifford has also issued a number of suppression orders relating to this hearing. Media are allowed to report the names of Mr Hager, Mr Slater, the police officers involved in the case, but not the names of some others involved in the case – nor of some investigative details or techniques. ** Justice Clifford has begun the hearing by addressing and questioning media to ensure only accredited journalists can report this proceeding. ** It’s just past 10am, and we’re in courtroom one awaiting the start of Hager v Her Majesty’s Attorney General, the New Zealand Police, and the Manukau District Court – a judicial review into the issue of a warrant to police last October that permitted a search of Nicky Hager’s home and the seizure of some of his journalistic material. This followed the publication of Mr Hager’s book, Dirty Politics, which relied on source material allegedly stolen from blogger Cameron Slater and passed to Mr Hager. The hearing is before Justice Denis Clifford. Julian Miles, QC, Felix Geiringer and Steven Price are representing Mr Hager. Brendan Horsley and Kim Laurenson are representing the Crown. ** Disclosure:  Jon Stephenson has known Nicky Hager, the plaintiff in this case, for some time and regards him as a friend as well as a colleague. He briefly met Steven Price, one of Mr Hager’s lawyers, in 2013, while attending an unrelated court case, and he once met Julian Miles, QC, Mr Hager’s senior barrister, while reporting an unrelated case in Auckland more than a decade ago. Mr Stephenson does not know Felix Geiringer, another of Mr Hager’s barristers. or any of the Crown counsel who are acting for the defendants. However, he met the first defendant, Attorney-General Chris Finlayson, at a dinner in Wellington approximately 13 years ago, before Mr Finlayson entered politics. Mr Stephenson has discussed aspects of this case with a senior police source and with a number of media commentators, but he has not discussed details of Mr Hager’s pleadings or the defendants’ position with lawyers from either side. Mr Stephenson is not, and never has been, a member of any political party. He is reporting on this case in accordance with New Zealand Press Council principles. –]]>