Nicky Hager search: police admit one of several breaches claimed

Nicky Hager
MAARTEN HOLL/ FAIRFAX NZ

Nicky Hager

Nicky Hager claims police repeatedly breached an undertaking not to act on information they found in the raid on his house but police admit just one breach.

The civil case reviewing the process of the search has finished in the High Court at Wellington with Justice Denis Clifford reserving his decision.

Hager, an investigative journalist and author of the pre-general election expose book, Dirty Politics, was at court but said he would not comment until the judge gives his decision.

Hager's claim for compensation as a result of the search, is being dealt with separately.

Police searched Hager's Wellington home in October 2014 looking for clues to the identity of "Rawshark", who had hacked the emails of blogger Cameron Slater.

The emails were passed on to Hager who used them as a source for Dirty Politics.

Because of Hager's claim that his documents were privileged and not able to be searched police undertook not to act on anything found until the privilege question was decided in court.

Hager's lawyers said that even seeing a scrap of paper with a name on it broke the privilege. Sealing it up afterwards did not undo the harm.

The lawyer for police, Brendan Horsley said one document was located during the search, photographed, and emailed to another officer to make inquiries about.

It contained the name of someone police were already investigating.

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Nothing more was done than look at "open source" material that day, and the email had since been deleted, Horsley said.

The officer in charge of the search acknowledged it should not have happened but the breach was not so significant that it made the search unreasonable. The remedy was to cease investigation into anything that was on the document, and that had happened, Horsley said.

Hager's lawyers said there were other breaches of the undertaking to seal the material seized, pending a court case over access to it.

But Horsley said other alleged breaches were unsuccessful attempts to capture or preserve information.

Notes were also taken of phone numbers in an attempt to obtain records about them. Horsley said taking the notes did not break the journalist privilege and was authorised under the search warrant.

Material seized was now properly preserved, he said.

Journalists have a privilege under the law not to have to reveal the identity of an informant they have promised to keep confidential, unless a High Court judge decides public interest favours the source being identified.

An application to establish the journalist privilege claim had been filed in Hager's case. That was where Horsley said issues would be dealt with such as the "chilling effect" on confidential sources coming forward if the privilege was not upheld, and public interest in investigation of crime versus protection of sources.

Hager says his rights were breached in several ways in the process police used to get a search warrant from a District Court judge and in the search itself.

Earlier Horsley denied the search was a "raid" that turned the house upside down.

Hager's lawyer said the search was an invasive raid carried out by six officers over 10 hours, that turned his house upside down.

But Horsley said directions for the search were that it was to be done in a low-key, professional way, that Hager was to be treated as a witness.

The search was not a turning upside down of his house, it was not a raid. It was done in a friendly and polite way, Horsley said.

Hager was not in Wellington at the time but one, or both, of two lawyers now acting for Hager on the claim, were present during most of the search, Horsley said.

Horsley said the search warrant application contained standard references to the types of privilege that could apply to searches, "albeit in not crystal clear terms or explicit terms" relating to the Hager search application.

In the absence of proven bad faith in bringing its application,  failing to refer to journalist privilege as part of the application was not the kind of omission that would make the warrant unlawful, he said.

There was in any event detailed information about why Hager's source information was required by police, and he was described in the police application as a political author.

A judge who had earlier dealt with Hager's claim had said someone would have been living under a rock to not know about the Dirty Politics issue.

Police accepted that the journalist privilege claim would be made but not that it would be upheld, Horsley said. It would have been an abuse to have asked for the warrant knowing there was no hope of obtaining  evidence that would be admissible in court.

 - Stuff

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