Police agree to apologise to Nicky Hager and pay substantial damages

Written By: - Date published: 10:09 am, June 12th, 2018 - 55 comments
Categories: Abuse of power, Deep stuff, Dirty Politics, Media, Politics - Tags:

Statement sourced from barrister Felix Geiringer on twitter and the Herald:

Full text of Police acknowledgement and apology

1.  Mr Nicky Hager has instituted High Court claims against the Crown resulting from:

1.1  the search of his property at Wellington on 2 October 2014 after publication of his book, Dirty Politics, and;

1.2  information requests and production orders obtained in respect of Mr Hager’s information held by various agencies.

2.  As part of the settlement of Mr Hager’s claims, the New Zealand Police wish to acknowledge the following breaches of Mr Hager’s rights and to apologise for them.

3.  In September 2014, Police sought and obtained 10 months of Mr Hager’s banking transactions. This was done with an informal information request and without a production order. Police acknowledge that Mr Hager had a reasonable expectation of privacy in relation to that information. The Supreme Court have recently provided clarification on when a production order needs to be applied for. In light of that judgment, Police accept that they needed to obtain a production order in order to obtain Mr Hager’s banking information.

4.  At the end of September 2014, Police applied for and obtained a search warrant to search Mr Hager’s home. Mr Hager was not a suspect of any offending.

5.  Police failed to mention in their application for the search warrant that they sought information to identify one of Mr Hager’s confidential sources and failed to mention that Mr Hager was a journalist who could claim journalistic privilege. The High Court has found that in this regard Police failed to discharge their duty of candour and the warrant was unlawful. The High Court also expressed concern that Police lacked reasonable grounds to obtain a warrant. Police accept the High Court’s preliminary assessment.

6.  Police also now accept and acknowledge that in certain respects the search warrant was overly broad and should have contained conditions to address concerns raised to protect journalistic privilege.

7.  Police searched Mr Hager’s home for almost an hour before Mr Hager claimed journalistic privilege over his material at the time of the search of his home. Police accept the High Court’s position that they needed to give Mr Hager a positive chance to claim that privilege before commencing the search.

8.  During the search, Police took a photograph of a printed copy of an email exchange between Mr Hager and another person and used it to conduct enquiries. Police also photographed documents containing login information for web accounts and a cloud storage facility and tried to use that information to access those websites. Police also took copies of information relating to a cell phone and used that information to obtain production orders from phone companies. Police acknowledge that these were breaches of Mr Hager’s legal right to protect his sources and should not have occurred.

9. Police acknowledge that lawyers for Mr Hager wrote to their lawyers on 7 October 2014 and told Police that Mr Hager also had claims of privilege over information relating to his private communications, or his other private documents, held by third parties.

10. After the search, Police continued the investigation by seeking and obtaining Mr Hager’s private information from various third parties including Air New Zealand, Paypal, NZ Customs, and Jetstar. When Police used production orders, they should have and failed to disclose Mr Hager is a journalist who is entitled to claim privilege. They also failed to mention that Mr Hager had claimed privilege during the search on 2 October, or what his lawyers had said in their 7 October letter. These were breaches of their duty of candour in each instance.

11. Police acknowledge that Mr Hager had a reasonable expectation of privacy in relation to information that could be used to identify his confidential sources. Police also acknowledge that there are legal protections in relation to such information that can only be waived by a High Court Judge. As such, it was not appropriate for the Police to seek such information from third parties without a suitable court order.

12. In making some information requests, Police said that they suspected Mr Hager of criminal behaviour including fraud. Police accept that they had no basis for such allegations.

13. Police acknowledge that in the respects outlined above they breached Mr Hager’s right under ss 14 and 21 of the New Zealand Bill of Rights Act.

14. Police acknowledge that the search of Mr Hager’s property caused distress to him and his family and threatened his ability (and that of the wider media) to access information from confidential informants.

15. Police apologise unreservedly for these breaches of his rights and have agreed to pay Mr Hager damages and his legal costs.

55 comments on “Police agree to apologise to Nicky Hager and pay substantial damages”

  1. mickysavage 1

    Andrew Geddis in typical form nails it with this description of the background:

    “Let’s just pause and recap at this point. The police admit that they misled a court by omission into giving them apparent legal authority to raid the house of not a suspect in a crime, but a witness to it. That witness, they knew, was a working journalist whose efficacy depends upon being able to assure his sources (be they law abiding saints or malefactor demons or somewhere in between) that their identity will remain confidential. And despite being alerted that there may be a legal bar on presenting in court the information they had seized, the police admit they went ahead and used some of it anyway to try and unmask their suspect.

    Were this the extent of the police’s actions, they would be bad enough. But wait, for there is more. Even after conducting the raid and being told in writing by Mr Hager’s lawyers that he asserted journalistic privilege over all information that may reveal his confidential sources (such as Rawshark), the police continued to approach third parties like Air New Zealand, Jetstar, Customs and Paypal for information about Mr Hager’s activities. Some of it was sought on an informal “please tell us” basis, while some was obtained through formal production orders (which were in turn obtained from the courts without disclosing that they related to a journalist with confidential sources).

    And in what is perhaps the most damning indictment of the police’s actions, they now admit that they told some of these third parties they wanted information about Mr Mr Hager because he was suspected of fraud and other criminal activities. This was what is known in legal circles as a complete and utter lie.

    Hence the complete and comprehensive nature of the apology to Mr Hager from the police. ”

    https://www.pundit.co.nz/content/why-the-polices-apology-to-nicky-hager-matters

    • dukeofurl 1.1

      When they want some info but dont want /or care about meeting the standard for search/production orders they use a

      Information Request Form.

      https://www.stuff.co.nz/national/88412152/Police-to-revise-information-requests-following-watchdog-complaint

      notice how they blurred the lines of the legality and even telling anyone else ( usually the customer) that the Police are looking at them.

      an example is given

      The employee said he was concerned by the pressure police placed on his employer.

      “[The officer] was trying to force my boss’ hand,” he said.

      “It was deceiving in the way that it was written, and looked like something that had to be complied with.

      “If they’ve done this to me for a minor offence… how many of these do they send out in a day?”

      His employer ultimately refused to provide the information requested by police.

  2. Richard Christie 2

    While good news, this does little to assuage my anger and outrage at the violation of Hager’s rights nor reassure me that the NZ police wouldn’t do it again, especially if they think the target is soft and won’t, unlike Hager, fight back.

    • Draco T Bastard 2.1

      Pretty much what I was thinking.

      It’s now been proved that the NZ police lie as a matter of course and that means that they simply cannot be trusted.

      • Kevin 2.1.1

        The Arthur Allan Thomas case started in June 1970. 48 Years ago.

        Between than and now, there have been a number of high profile cases where convictions have been overturned due to police ineptitude.

        48 Years, and the NZ Police still haven’t learned a fucking thing about telling lies

      • Incognito 2.1.2

        In any hierarchical structure where careers and promotions (and performance pay) depend on meeting targets and KPIs some (many?) people will do whatever it takes to get ahead (and provide for their family). In other words, it (i.e. this stupid competitive rat race) is common place in society and all its institutions that underpin it. Change the expectations, change the mind-set, and change the outcomes.

        • WILD KATIPO 2.1.2.1

          And that pressure to ‘ perform’ has only worsened since the traitor Douglas launched the neo liberal take down of NZ.

          Noticeably so.

  3. Pat 3

    And all this has taken nearly four years….whats that saying about justice delayed?

  4. One Anonymous Bloke 4

    From Hager’s statement:

    The money will help support important work for years to come…

    I can hear the grinding multitude of authoritarian centrist teeth. Sweet music 😈

  5. roy cartland 5

    Good news fro Nicky and democracy, but once again WE end up paying for the corrupt and grossly illegal actions of the State. I take it the money can’t be recovered from those who actually caused the mess, such as the DP crowd proper?

    • One Anonymous Bloke 5.1

      I’m just going to tell myself it comes out of cash and property seized under the Proceeds of Crime Act.

    • Draco T Bastard 5.2

      I take it the money can’t be recovered from those who actually caused the mess, such as the DP crowd proper?

      Probably not. They didn’t commit a crime despite what they did being completely immoral.

      Just because it’s legal doesn’t make it right.

  6. gsays 6

    Surely there will be disciplinary action taken against the officer(s) that signed off on these severe breaches.

    It is all well and good, as an organisation, to apologise and acknowledge short comings but who is responsible for these unlawful searches and enquiries.

    • Draco T Bastard 6.1

      Surely there will be disciplinary action taken against the officer(s) that signed off on these severe breaches.

      We would hope so but I’m sure that there won’t be.

      • Richard Christie 6.1.1

        .
        “but I’m sure that there won’t be”

        and that is why we can have no confidence that police culture ever learn anything from such abuses.

        It’s not those responsible’s personal money spent in commission of the abuse and for the subsequest payouts to complainants, nor is it ever their personal welfare/jobs at stake.

        The culture carries on regardless.

  7. Ad 7

    If this had gone down at Matthew Hooten or Fran O’Sullivan’s house or TVNZ’s newsroom the Commissioner would have been fired from the outcry.

    The Prime Minister needs to hold the Commissioner to account and do so fast and in public. Nothing less.

    • tc 7.1

      NZ police have suffered a huge loss of public confidence as a result of their apparent willingness to indulge in dodgy /unlawful practices on political matters.

      Hager, Teapot Tapes, Slaters diversion, Barclays taping, maybe a prominent kiwi even.

      This govt needs to purge those in the upper echelons of NZP who have participated in these actions IMO or it’ll forever be perceived as “Nationals NZ Police (since 81)”.

      • Ad 7.1.1

        Also High Court finding illegal evidence gathering from Kim Dotcom.

        Don’t have to like him, but liking is not the constitutional test.

        • tc 7.1.1.1

          He’s done the wider NZ public a huge favour.

          The perpetrators aren’t used to someone having pockets deep enough to expose the truth.

          It’s normally the wealthy ones on the other side trying to bury it.

      • marcus Morris 7.1.2

        My thoughts exactly. The police actions were certainly politically motivated and the next question must surely be to ask to whose bidding they were answering; the subject of Nicky Hager’s next book???

  8. cleangreen 8

    Today over on “the daily blog” editor Martyn Bradbury finally levels his allegations of damages against him by the NZ Police during the National Government “dark ops media/journalism illegal probe” silencing operation.
    My statement to the NZ Police now they have settled the illegal persecution of Nicky Hager
    By Martyn Bradbury / June 12, 2018

    “…once the abuses of power have been settled, and the damages paid, THEN we should start asking how many other people have been caught out by this and who set the Police on this politically influenced investigation in the first place.”

    Yes, yes, yes, Martyn; – give the freedom back to our “investigative Journalists again” so they now can now continue their work to (without fear and incrimination) freely investigate the “dark ops National Government operations they carried out” as they attempted to subvert and silence our “freedom of the press journalism in NZ”

  9. Tamati Tautuhi 9

    Who was the Police Commissioner at the time who authorised this ?

  10. Well ,… talk about Stasi style operations,…

    It seems certain politically motivated members of the Police are quite deft hands at nullifying their own search / arrest warrants and abusing their powers, doesn’t it ?

    It was same with Mr Kim Dotcom as well.

    Abuse after legal abuse until finally the actual search warrant itself was deemed void and the ensuing actions illegal.

    What sort of Police force do we have in this country ? Is this the neo liberal protection squad aka Police ?

    Is this what 34 years of crumbling neo liberalism does to even our law enforcement ? make them politically aligned and preferential ? Recall all this happened under John Keys watch , – as did the Kim Dotcom illegal search and arrest.

    Dissecting the GCSB bill – Campbell Live (Kim Dotcom scandal …
    Video for Dissecting the GCSB bill – Campbell Live (Kim Dotcom scandal)▶ 16:11
    https://www.youtube.com/watch?v=bxytPFfTozE

    John Key discusses Dotcom saga – YouTube
    Video for John Key discusses Dotcom saga▶ 17:29

    • Draco T Bastard 10.1

      What sort of Police force do we have in this country ?

      One that has now proven that it simply cannot be trusted.

      Is this what 34 years of crumbling neo liberalism does to even our law enforcement ?

      Probably not. The police have always been ‘above the law’ and political to some degree.

    • Hongi Ika 10.2

      Wasn’t this when John Banks memory began to start failing him, if I remember rightly, I think and he thought he actually went up the Kim Dotcoms Mansion in Coatsville on a Cabbage Boat instead of a helicopter if I remember rightly ?

    • Robert Guyton 10.3

      “I asked a few people, “What’s the meeting about?”, they said, “I don’t know”.
      Lordy! What does that mean? Zilch. Nothing. Nada.
      Who did he ask? The cleaning guy? Taxi driver? Why didn’t Key ask the people who wrote the dairy entry? If they didn’t know, why would he go to an insecure meeting, unbriefed?
      Snakey biz.

    • halfcrown 10.4

      ” Is this the neo liberal protection squad aka Police ?”

      Yes.

      Most surprised no opinions from Baba, Alwyn, Puckish, James or Gosman.
      Not even a quote about Venezuela, the most feared country of the right

      • Tamati Tautuhi 10.4.1

        Have the trolls slowed up this evening just having a look through the comments section.

    • mosa 10.5

      And they “knighted ” this scumbag.

      I can’t believe that this man was the leader of our country for eight years !

      What a farce !!!!!!!!!!!!!!!!

  11. Michelle 11

    I can see more arse covering and we the tax payer are paying for this. Some heads need to roll.

  12. Oh ,… notice the tight ‘ankle lock’ of Key as well….

  13. Sacha 13

    Hager describes how the raid almost derailed his subsequent book:
    https://www.nzherald.co.nz/politics/news/article.cfm?c_id=280&objectid=12069085

  14. Venezia 14

    Astonishing revelations by Police. There are obviously a few people out of control at the top. They need to have criminal charges laid against them, with all costs paid by those responsible.

  15. Hongi Ika 15

    KDC is suing the NZ Government for $1.0 Billion for the loss of his business and the loss of income from that business, over x number of years.

    • tc 15.1

      Nothing a spot of retrospective law to bring the badly behaved public figures into the dock will not fix.

      KDC’s got a point but we all know most of the indivduals have long departed…except a former AG perhaps.

      Rogue behaviour by those holding public office public shouldn’t be given parliamentary privilege.

      • WILD KATIPO 15.1.1

        … ‘ Rogue behavior by those holding public office public shouldn’t be given parliamentary privilege ‘ …

        And was precisely the same sorts of reason why England suffered a long , bloody civil war… some of the issues were different, … but the impetus for ‘ the King not being the mouthpiece of God ‘ and therefore expecting everyone else to suck it up and suffer were the same…

        Out of control and illegal acts by those in charge.

        And an honest society would have laws that quickly deal with officials who cross that line.

        Including large fines and prison sentences.

        Look at Iceland as a leading example.

        • Tamati Tautuhi 15.1.1.1

          There were a few politicans and their associated cronies who should have had some time in Her Majesty’s Hotels here in NZ however fraud was acceptable form of behaviour here in NZ through the 1980-1990’s.

          Politicans with a compliant judiciary covering their arses.

  16. Ken 16

    John Key is balls deep in this.
    He has deep pockets, make him pay.

  17. dukeofurl 17

    What we need is a Police Oversight Board, not the toothless IPCA which looks at individual cases and uses the police themelves for most enquiries.

    We need something with real powers that can question and get the records of senior police activities and actions.

    Too often the idea of Politicians cant question police operations at all. I dont think you need active politicians but certainly somepeople with the nous and ability to get to the bottom of things.
    As this Hager episode shows , it all takes too long, requires someone with financial and legal resources to go after illegal conduct when this should have been all out in the open within a year of happening.

    wait for the inevitable ‘ we have moved on’ stories to follow.

    • Well , we all know about Queensland Police and the corruption that ensued when Joh Beljke Petersen was state Premier…

      And as a result of the take down of the Queensland Police responsible and the inquiry’s that followed, … not only succeeded in successfully prosecuting the ringleaders but widened its net to include Joh Beljke Petersen himself.

      And as a result of that the Queensland Crime and Corruption dept was formed.

      We need something similar here.

  18. Treetop 18

    It goes to show how careful the police need to be when they come into a person’s home and think they can have a free run of the place and fail to understand what the position of a journalist is.

  19. mickysavage 19

    There is a lot of background to this. Simply put Cameron Slater complained to the police that his information had been hacked and the police went to town in trying to find out who did it.

    Compare this to when Lynn complained to the police about Slater’s attempted hack of this site. Police went cold on it, offered Slater diversion without even asking Lynn and the Crown proactively sought name suppression for Slater when the charge was laid.

    No sign of a warrant being issued either although I could be wrong here.

    The contrast in treatment is startling and jarring.

    • Treetop 19.1

      There are a number of examples where the police failed to investigate when National were in government.

      I give Patrick O Brien a thought now and again how his allegations of perjury have been swept under the carpet.

      I also would like to know if any former undercover cops from the 70’s early 80s are still receiving ACC.

    • Tamati Tautuhi 19.2

      Judith Collins was Minister of Police at one stage and was best buddies with the Slater, one of the finest slugs in the business ?

    • A Creditor 19.3

      Rachinger was the problem – let’s be honest he was a whack job who had his 5 mins of fame across the blog space – he made a nice mess for you all

      • One Anonymous Bloke 19.3.1

        Rachinger forced Slater to be an unethical low life? Where’s the personal responsibility now?

  20. Gabby 20

    No doubt Sniggering Gyno will be interviewing some police spokesbellwetherperson on the suspicious timing of this.

  21. AB 21

    Just because the Police behave like the uniformed branch of the National Party, it doesn’t necessarily mean they have to be told to do so.
    Most likely it comes quite naturally to them – maybe innately authoritarian types are more attracted to the force, or maybe the things they see give them a very bleak view of humanity. Certainly ex-Police (Glenda Hughes, Mike Sabin, Chester Burrows, Mark Mitchell) seem to slide over to the Nats with remarkable ease. O’Connor on the Labour side seems more of an exception (and a hotly contested one too).

    These sorts of natural, bottom-up alignments are almost more insidious that top-down conspiracies. In any case, proper oversight and long-term work on police culture is still needed.

  22. saveNZ 22

    A great outcome, but of course at personal costs to Nicky Hager for the years of disruption and harrassment and should never have happened in the first place. Hopefully the police will learn something from it but there should be a financial and employment cost to the police who obtained the illegal warrants, those who told them to do it and those who lied to the courts and did the privacy breaches. It should not be, just business as usual or they have learnt nothing.

  23. Richard Christie 23

    Since the taxpayers are footing the bill to compensate Hager does anybody know the dollar figure of damages to be paid?
    Are taxpayers entitled to know? if not, why not?

    • mosa 23.1

      Yeah maybe we can have a whip round to compensate tax payers starting with
      John Key and the last National led government which includes
      Mr Seymour , Mr Dunne and the Maori MPs who supported this with silence and inaction.
      Mr Slater , Mr Eade and others who did the dirty work.
      And the police who when the blowtorch was on them forgot that they despite the political pressure must observe the law and human rights.
      I only wish Nicky could sue these bastards , in any decent , fair justice system he would be afforded that right.
      This whole business just shows what can happen when the truth gets in the way of the cover up and the lie.

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