Police Ignored Law When Applying for "Rawshark" Hager Search Warrant
By Alastair Thompson
Representing Investigative Journalist Nicky Hager in his Judicial Review proceedings over the "Dirty Politics" police raid on his Wellington home last year, Julian Miles Q.C. has today launched a blistering attack on the way the police applied for the search warrant.
The trial is set down to be heard this week in the Wellington High Court before Justice Clifford. Julian Miles is representing Nicky Hager and is supported by Felix Geiringer and Steven Price. The Crown is represented by deputy Attorney General Brendan Horsley. Hager is seeking compensation for breaches of his Bill of Rights Acts rights and the return of seized property.
[PDF Link: Hager's case – media summary]
The case focuses on a search warrant issued in the District Court at Manukau by Judge I.M. Malosi on 30th September 2014 as part of an operation launched to track down the hacker known as "Rawshark". Earlier in 2014 Rawshark provided Hager with a cache of emails and other communications by blogger Cameron Slater which were used in Hager's best-selling book Dirty Politics.
Dirty Politics - published 13th August 2014 - details the relationship between Cameron Slater and senior National Party figures over a lengthy period including his relationship with Jason Ede in the office of Prime Minister John Key. The book resulted in two Government inquiries into allegations of abuse of power- one by the Inspector General of Intelligence and Security. It also resulted - indirectly - in the resignation of Justice Minister Judith Collins over allegations that she had sought to undermine the Director of the Serious Fraud Office.
In his opening Julian Miles described the raid of Hager's house as "extremely invasive". It started at 6am. Police spent 10 hours at Mr Hager's house. While Mr Hager wasn't present his teenage daughter was, on her own. The police took 4 phones, two computers and lots of paper files, or as Mr Miles said, Mr Hager's "life's work".
The legal argument being considered by the court revolves around the Police's obligation to fully inform the South Auckland Judge who issued the search warrant about the background and legal issues which needed to be considered.
"If the Judge had been fully informed the warrant would never have been issued," Mr Miles told the court, "and if it had at the very least there would have been a series of conditions."
Mr Miles said that while the police anticipated a claim of journalistic privilege, and had placed seized materials in the High Court, pending a court decision, the police had then breached these undertakings and had photographed information from the raid, sent it to Police Headquarters, and acted on the information following up on phone numbers and other things revealed during the raid.
Mr Miles pointed to the fact that the police files showed they had identified the that journalistic priviledge was an issue, had sought legal advice, but had proceeded to apply for the warrant without mentioning it. "Clearly that legal advice was wrong."
Mr Miles said that among the matters which were not addressed in the warrant application were:
- TVNZ vs Attorney General, a 1995 Court of Appeal case, which holds that where there is a risk of "a chilling effect" arising out of the serving of a warrant against media it should only be done in extraordinary circumstances;
- S.16 of the Bill of Rights Act, which protects freedom of expression and "the right to deliver and receive facts and opinions", and S.21 of the Bill of Rights Act which provides the right to be free from unreasonable search and seizure;
- S.68 of the Evidence Act, which makes a presumption that journalists are allowed to protect the identity of the sources unless there are "compelling reasons" not to;
- And Police Protocols for dealing with media, which appear to also not have been considered.
Mr Miles said it was regrettable that none of these issues had apparently concerned the police when they launched their application for a warrant. And not only were these issues not addressed, but the fact that Nicky Hager was a journalist wasn't even mentioned.
"Police needed to check these things before they applied, there is an absolute duty for them to consider these matters," Mr Miles said. This was a "duty of candor" that applied to all ex-parte applications and particularly to the police when they were seeking warrants.
Further compounding these abuses was the fact that Mr Hager was not a suspect, rather he was a witness to the hacking which the police were investigating. "We have been unable to find any precedent to such a raid," Mr Miles said.
Mr Miles said police were well aware that Mr Hager had given Rawshark assurances of confidentiality; that Rawshark was a highly sophisticated user of software methods for disguising himself; and that Mr Hager was a highly experienced investigative journalist. All of this meant police would have known it was "improbable" that their searching Mr Hager's computer would identify Rawshark.
Mr Hager was a person who had written six serious books about abuses of power in one form or another, Mr Miles said. "The broadness of this warrant gave access to the Police to all the confidential information that Mr Hager had at his house. It was bad enough that this covered the indentity of Rawshark, but it went to all the other evidence as well."
In his opening Mr Miles also referred to the affidavits filed in support of Nicky Hager by former Herald Editor Gavin Ellis, Press Gallery "doyen" John Armstrong, NZ Herald Investigative Reporter David Fisher, United States based Investigative Reporter Seymour Hersh and Otago Academic Bryce Edwards.
The trial is expected to continue for most of this week.