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High Court of New Zealand Decisions |
Last Updated: 7 June 2010
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2008-404-008247
UNDER the Judicature Amendment Act 1972
IN THE MATTER OF a Warrant issued under section 198
Summary Proceedings Act 1957 and the execution of that Warrant and seizure of medical records of patients under that Warrant
BETWEEN JUDITH HEATHER GILL First Plaintiff
AND QUEEN STREET HEALTH CARE (AUCKLAND METRO DOCTORS) LIMITED
Second Plaintiff
AND THE TRAVEL CLINICS (TRAVELCARE) NEW ZEALAND LIMITED
Third Plaintiff
AND ATTORNEY-GENERAL SUED ON BEHALF OF THE MINISTRY OF HEALTH
First Defendant
AND THE REGISTRAR AUCKLAND DISTRICT COURT
Second Defendant
Hearing: 15, 16, 17 and 20 July 2009
Counsel: R J Hooker and Ms Homes (on 15,16 and 20 July 2009)
R J Hooker and Ms Taylor (on 17 July 2009) for plaintiffs
A M Adams and H H Ifwersen for First Defendant
No appearance for Second Defendant (abiding decision of the Court) Judgment: 23 September 2009 at 5:00pm
RESERVED JUDGMENT OF HUGH WILLIAMS J
GILL AND ORS V ATTORNEY-GENERAL AND ANOR HC AK CIV-2008-404-008247 23 September 2009
This judgment was delivered by The Hon. Justice Hugh Williams on
23 September 2009 at 5:00pm
pursuant to Rule 11.5 of the High Court Rules
.....................................................
Registrar/Deputy Registrar
B Costs are to be dealt with in accordance with paragraph [244] (b)
hereof.
TABLE OF CONTENTS
Paragraph
Introduction [1] Pleadings [6] Evidence on which search warrant granted [10] Evidence concerning execution of search warrant [32] Search warrants and execution: General Law [51] Submissions [66] Matters preliminary to decision [182] Discussion and Decision [189]
1. PHO contract [189]
2. Search Warrant application and affidavit [197]
2. Execution of the search warrant: [212] (i) Police involvement [214] (ii) Manner of execution of search warrant [223] (iii) Cloning of computer hard drive [234]
Result [243]
Introduction
[1] On 5 November 2008 a Deputy Registrar of the Auckland District Court (“Issuing Officer”) issued a search warrant under s 198 of the Summary Proceedings Act 1957 (“s 198”) saying the Issuing Officer was satisfied on an application in writing on oath:
THAT there is reasonable ground for believing that there is ... in Auckland
Metro Doctors and Travelcare ...
The following thing(s) namely:
• Consultation Records
• Financial Records
• Enrolment forms
• Registration forms
• Computer hard drives containing electronic data
• Staff rosters
• Work diaries
• Wage records
in respect of patients listed on the PHO population of Auckland Metro
Doctors and Travelcare since 1st October 2003.
(upon or in respect of which an offence of “Dishonestly uses a document to obtain a pecuniary advantage”, Section 228(b) of the Crimes Act 1961, and “Obtaining by Deception” Section 240(1)(a) of the Crimes Act 1961, has been or is suspected of having been committed)
(which there is reasonable ground to believe will be evidence as to commission of an offence “Dishonestly uses a document to obtain a pecuniary advantage”, Section 228(b) of the Crimes Act 1961, and “Obtaining by Deception”, Section 240(1)(a) of the Crimes Act 1961.)
THIS IS TO AUTHORISE YOU at any time or times within one month from the date of this warrant to enter and search the said Auckland Metro Doctors and Travelcare ...
[2] The premises in respect of the search warrant was granted were those out of which the first plaintiff, Dr Gill, operates her general medical practice under the names of the second and third plaintiffs.
[3] The search warrant had been obtained by a Ms Rolls, a senior investigator with the Ministry of Health (“MoH”). On 11 November 2008 she, together with other officers of MoH and Police officers, executed the search warrant at Dr Gill’s
premises and, in the circumstances later described, seized many of the practice’s files and removed them to Ministry premises where an examination began.
[4] During the next month while the examination continued, files were returned to Dr Gill, or copies made available as required, to enable her to continue her practice. She objected and sought, ex parte, an interim injunction to lodge the remaining files with the Registrar of this Court. After discussions between the parties, the remaining files were, by consent, deposited with this Court on 11
December 2008. There they remain.
[5] The circumstances in which the search warrant was obtained and executed resulted in commencement of these judicial review proceedings on 12 December
2008.
Pleadings
[6] Dr Gill pleads that the affidavit supporting the search warrant application (“warrant affidavit”) omitted or mis-stated information in over a dozen ways. She claims the warrant was invalid as the Issuing Officer lacked jurisdiction under s 198 to “issue a search warrant for the search of confidential medical/patient records” or the Issuing Officer should have imposed conditions on the search and seizure of the confidential information. Secondly, Dr Gill pleads the Issuing Officer was in error of law in issuing the warrant because he was misled by omissions and misleading statements on the part of MoH in some 21 different ways. Thirdly, the warrant is pleaded to have been invalid because of its generality.
[7] MoH’s attitude is that the warrant affidavit and search warrant disclosed all material information and the warrant affidavit was augmented by discussions between the Issuing Officer and Ms Rolls immediately prior to the warrant being granted. It also pleads that, although not mentioned to the Issuing Officer, MoH had elaborate protocols in place to protect confidential information and executed and dealt with the files and their confidential information in accordance with those protocols.
[8] The plaintiffs assert execution of the warrant was unlawful or unreasonable or in breach of s 21 of the New Zealand Bill of Rights Act 1990 (“NZBoRA”). Some 25 aspects of execution of the search warrant are challenged.
[9] MoH asserts it acted properly in all respects in executing the warrant and in uplifting, caring for, and generally dealing with the files
Evidence on which search warrant granted
[10] The evidence on which the search warrant was granted all came from
Ms Rolls.
[11] Her 11-page 99-paragraph warrant affidavit began:
5. This investigation deals with patients that Dr Judith Heather GILL has enrolled on her Primary Health Organisation (PHO) register, affording her 3 years of District Health Board capitation funding that she was not entitled to claim. These patients should have been treated as:
5.1 Casual patients, and thus claimed for on a per consult (Fee
For Service) basis, or
5.2 Not eligible for subsidy and no claim made.
[12] Elaborating, she said in 2002 changes in Government health strategy led to the establishment of PHOs to deliver and co-ordinate primary health care services. The general intention of the strategy was for each member of the public to be an “enrolled patient” which meant they became a patient of a particular doctor who was a member of a PHO.
[13] PHOs receive subsidies from District Health Boards (“DHBs”) for health services on a capitated basis generally irrespective of the number of visits made by patients during any three year period and are extended by any subsequent consultation. An “enrolled patient” draws capitated funding even if they never visit a doctor by contrast with the previous scheme under which each visit was subsidized by the General Medical Subsidy.
[14] ProCare was a PHO contracted to the Auckland DHB. It sub-contracted with health providers including the plaintiffs (who became bound by the terms of the main contract) from 1 October 2003.
[15] The warrant affidavit said generally medical practices have three categories of patients:
c) Patients who consult doctors but are ineligible for subsidy payments.
[16] Ms Rolls’ warrant affidavit referred to the Enrolment Requirements for PHOs stemming from a document incorporating the PHO agreement setting out the process for a patient to become “enrolled”. The patient agrees to the enrolment process by signing the enrolment form (and is given an opportunity to transfer from the previous doctor). The affidavit quoted the PHO agreement’s Enrolment Requirements as:
23.2 The patient “Indicates to a provider that they intend to use that provider or PHO as their usual provider of essential primary care services on an ongoing basis”. The Requirements clarify “A person should not be invited to enrol on an enrolment register when they are not intending to continue to use that provider for ongoing essential primary care services”.
[17] Once the enrolment process is complete the doctor receives subsidy on a quarterly basis for three years unless the patient terminates enrolment. The sums are significant: a GMS subsidy for a 6-year-old male equated to $15-$20 but PHO capitation funding for the same child equals $93.54 p.a.; a 25-year-old woman without Community or High Use discounts attracted no funding under GMS but a capitation funding of up to $81.04 p.a. Both subsidies are in addition to any fee charged by the doctor to the patient.
[18] Ms Rolls said patients who are not enrolled may nevertheless be entitled to payment for each Fee For Service if:
a) They are enrolled elsewhere but are visitors and require medical treatment in the location they are visiting;
b) They elect not to become enrolled.
c) “When that patient is a temporary visitor from the United Kingdom and requires prompt treatment for a condition arising after their arrival in New Zealand (or become acutely exacerbated). Although Australian visitors are entitled to limited health care subsidies under reciprocal arrangements there is no eligibility for funding for universal general practitioner care”. (para 29.3)
d) “Any treatment to a visitor is of a transitory nature due to the patient’s short tenure in New Zealand and cannot be considered to be ‘ongoing essential primary care services’ as required by the Enrolment Requirements, and a practitioner should not then receive 3 years funding for someone who no longer remains in New Zealand.” (para 29.4).
[19] Ms Rolls’ said MoH commenced an investigation into the plaintiffs in August
2004 concerning their enrolments and “in particular the high number of patients enrolled with addresses listed ‘backpacker’”. That description indicated a possible higher than usual number of casual patients.
[20] On 15 April 2005 Dr Gill said it was “appropriate a claw-back take place as these people have clearly been identified as casuals who have inadvertently registered or enrolled” and on 11 July 2005 expressed concern about “ineligible people” receiving medical funding as a result of software coding. Ms Rolls’ affidavit (para 35) quoted Dr Gill saying on 14 May 2008 in a newspaper:
“Foreign visitors have been getting medicines and laboratory tests at bargain basement prices because the computer system used by GPs does not identify them as ‘non eligible’ for subsidies”.
[21] On 4 February 2008 the investigation became an audit of ProCare for the quarter 1 October-31 December 2007, Ms Rolls said, focusing on the plaintiffs. At
that time Dr Gill’s PHO population, that is those she said were enrolled with her practice, totalled 4360 patients, of whom 1343 were “contested”. A “contested” patient is one who appears on the roll of another practice. The audit also showed the plaintiffs claimed a high number of patients who “appeared to fall into the category of patients holding casual status due to their immigration and/or residential status”:
152 enrolment forms were examined, of which 57 described their position as temporary or transitory and were therefore likely to be “casual users”. Many were referred to Dr Gill by backpackers’ accommodation, hostels and travel agents.
[22] Ms Rolls’ warrant affidavit said the high number of “casual users” was evidenced by the enrolment forms used by Dr Gill on which a number had described themselves as “visitor” or “on vacation” or provided a departure date from New Zealand. Those patients, Ms Rolls said, were thought unlikely to require ongoing medical attention, but the forms Dr Gill used said the patient agreed that “I am now an enrolled patient of Auckland Metro Doctors and Travelcare” even though the MoH eligibility rules state “no claim for payment may be made for provision of services to a person who is not in New Zealand at the time of service provision”.
[23] One hundred patient forms concerning “uncontested” patients were requested to assess the number of casual users. Sixty-one were assessed as falling into that category. Dr Gill received $1305.42 for these patients and full year funding amounted to $5221.68. Extrapolated from Dr Gill’s entire “uncontested” population she would have received $17,238.60 for casual users.
[24] The warrant affidavit said “100 contested but superceded (sic.)” forms were examined and “74 assessed as probably being casual users”. Superseded patients are contested patients named by another practice using a more recent date of enrolment to obtain funding. Dr Gill received no funding for that group in the quarter under examination but was often paid in the preceding quarter or quarters.
[25] The warrant affidavit then dealt with vaccination patients. Dr Gill specializes in travel medicine and the affidavit said many patients were referred to her by their own doctor or by travel agents. Investigators spoke to a number of patients enrolled with the plaintiffs following vaccinations; all were said to have stated they only
visited Dr Gill once for travel vaccinations and never intended to be enrolled with her. Enrolment was never discussed with them and they were “unimpressed” she received funding for them. Some were submitted by Dr Gill in early 2008 following a claimed consultation on 10 March that year. The patients advised investigators no such visits took place.
[26] The warrant affidavit then contained a summary. It said the foregoing statistics demonstrated, to MoH, “her fraudulent intent in claiming ongoing subsidies for patients holding casual status” because “patients who should have been treated as casual users have instead been enrolled” and claimed for by Dr Gill. That assertion, the affidavit said, was supported not only by the earlier statistics but by the benefits received by Dr Gill and what MoH regarded as “deliberate misrepresentation” in her enrolment forms. The latter factor, the affidavit said, led to the view:
83. It is firmly believed that Dr Judith Heather GILL includes people in her enrolment register who have not been sufficiently informed of their options and had they been allowed to make an informed decision, they would have chosen not to be enrolled at her surgery.
[27] The warrant affidavit then turned to travel movements and exhibited a list of patients (“Appendix A”) “in respect of whom fraudulent activity due to ineligibility is suspected”. The list was 210 pages in extent and contained 9276 names of patients and dates of birth. The affidavit continued:
85. I have good cause to suspect Doctor Judith Heather GILL, the sole practitioner Auckland Metro Doctors and Travelcare has made false claims by including patients on her PHO patient registers, who are either ineligible or who have been mislead or insufficiently informed about enrolment Doctor Judith Heather GILL then submitting the registers for funding has thereby committed an offence against the Crimes Act 1961, being “Dishonestly uses a document to obtain a pecuniary advantage”, Sections 228(b) of the Crimes Act 1961, and “Obtaining by Deception”, Section
240(1)(a), which are punishable by imprisonment.
[28] After dealing with comparative exercises intended to be carried out between
MoH and Customs, the warrant affidavit concluded :
MEDICAL RECORDS SOUGHT
93. All computer and hard copies of patients’ records in respect of those listed in Appendix A in relation to Auckland Metro Doctors and
Travelcare, are required for evidential purposes. I believe analysis of these records will provide evidence of fraudulent claiming.
94. Details of patient consultations, date of service, clinical note details, appointment details, patient account details, and claim records by the Surgery are recorded on database software on the surgery’s computer system.
95. The data stored on the surgery’s computer hard drive is legally classed as a ‘document’. In most other investigations it would be possible to seize a computer hard drive but as the surgery is a going concern this extreme step would cause the business to close immediately.
96. Because of this it is necessary for Audit and Compliance to carry out an evidential acquisition of the data by copying the surgery’s computer drives so that the data can be analysed and enquiries completed to reveal the full extent of the fraudulent activity.
97. Enrolment and registration forms for patients on the surgery register are to be kept at the surgery for audit purposes. These forms are required to ascertain if they are an accurate record of patients enrolled and registered on the Patient register.
98. As the surgery employs a number of persons it is likely that they work at different times. It will be necessary to obtain staff rosters, work diaries and staff wage records in order to identify which persons would have been working at the times fraudulent activity was carried out.
99. A search warrant is required to search Auckland Metro Doctors and Travelcare, Level One, 125 Queen Street, Auckland, NEW ZEALAND for the purpose of locating and seizing records of patients referred to in Appendix “A”
[29] In addition, Ms Rolls said she took the oath in front of the Issuing Officer and that, before signing the warrant, there was a conversation between them. There were two versions in evidence. In her affidavit sworn in this proceeding (“review affidavit”) Ms Rolls said the Issuing Officer asked: “What do you mean by a
‘consultation record’?”. She responded that they were “notes made by medical staff during the consultation or included a file which may record particulars of a visit”. She told him MoH needed “to examine these notes to verify funding information” and gave him an example. She was also asked about the manner of execution of the warrant and told him: “I have an appointment with the doctor and that we would take all possible measures to ensure minimal or no patient disruption”.
[30] However, in what seems to have been a Job Sheet made at the time, she said the Issuing Officer was concerned about execution because he said: “This is a doctor’s surgery with patients”. Realising the Issuing Officer was asking about disruption to the practice, she explained about the appointment and that they intended to allow the practice to continue. That was followed with a question: “What do you mean by ‘consultation note’” which the file note said she answered about notes by medical staff but did not mention the files or the other material set out in the last paragraph.
[31] There was no evidence from the Deputy Registrar, the District Court abiding the decision of the Court.
Evidence concerning execution of search warrant
[32] Dr Gill’s affidavit said Ms Rolls came to her surgery on 11 November 2008 at the agreed 2:00pm. Dr Gill answered Ms Rolls’ questions and Ms Rolls then produced the search warrant.
[33] Patient files comprised both those on paper and in a filing system and cupboard, together with an archive area. Those held electronically were on her file server in the reception area.
[34] The paper files contained biographical details plus addresses, ethnicity and residency status and “other determinations of eligibility for public health funding” including a National Health Index (“NHI”) number and the dates of consultations. The files also contained clinical information as to the patient’s condition, diagnosis and treatment. Some contained letters to and reports from specialists together with x-ray, radiology, biopsy and pathology test reports. The files for patients who received public health funding also contained an enrolment form. Dr Gill said the biographical information was confidential and supplied to MoH electronically on a quarterly basis. The clinical information was confidential between patient and Dr Gill thus “any intrusion into confidential medical records will undermine confidence of the patient in consulting with the doctor”.
[35] She said MoH then proceeded to “remove all patient files from my medical clinic and made a clone copy of my computer”. No reading of files preceded their seizure. Police officers present “were not participating or supervising the search and seizure” and left the “complete conduct” of the search to MoH. She described the process as “ransack”. She said that at the conclusion of the search late that evening “they had removed every single patient file and record in their sights” and “copied numerous personal documents from the computer file server that had nothing to do with patients”.
[36] Her electronic files dated back to 1991 (paper files to 1998) and included patients ineligible for public health funding who had never been asked to sign an enrolment form (files marked “T C” plus a number). Patients eligible for public health funding were marked “L P” plus a number. She said:
“The Ministry removed all files from the clinic and archive room regardless of whether the patient had received public health funding (eligible) or not (non-eligible). The Ministry seized 5352 paper files and 9940 electronic files of non-eligible persons, they also seized 10,339 paper files and 14,285 electronic files of eligible person [sic].
At the time I swear this affidavit [10 December 2008] I believe that the Ministry still retains the paper files of approximate 4667 non-eligible persons and 7700 eligible persons. The Ministry also still retains 100% of all 24,225 electronic patient records and all personal data copies from the Clinic’s file server. Of the files returned they have made copies of parts of a number of files.
“The Ministry therefore retains in excess of 12,367 medical files containing clinical information it proposes to continue to examine and those files containing confidential doctor-patient clinical information including a large number of patient files for which no public funding has ever been claimed or paid.”
[37] Dr Gill’s evidence was largely repeated in an affidavit sworn some weeks later and was supported by affidavits from a Mr Pilkington, the managing director of the company that provided her information technology, and a Ms Bramwell, her receptionist.
[38] Mr Pilkington said Ms Rolls read a list of prepared questions including making a number of allegations of fraud. He tried to stop the meeting to enable
Dr Gill to obtain legal advice. Inquiries were made concerning recording the conversation. Both requests were refused.
[39] Two extra MoH officials arrived at 2:30pm and two police officers at
2:35pm. They identified themselves, read the search warrant and advised Dr Gill of her rights. At about 2:45pm Mr Pilkington assisted a MoH official to copy data from the file server but left the practice at 2:55pm.
[40] Ms Bramwell returned to the practice about 2:30pm. She said the police officers did not accompany Ms Rolls for the rest of the afternoon but sat or stood around the reception area. She was interviewed between 3:30-3:45pm, after which she gave MoH officers files of patients booked over the next fortnight. At about
3:55pm a doctor and another man arrived and two more MoH officials arrived later. Some files were taken from the practice by the time Ms Bramwell left at 5:33pm. Patients had been treated at the practice during the afternoon.
[41] Ms Rolls’ 80-page review affidavit said the warrant affidavit indicated a particular interest in Appendix A patients and MoH sought to limit the number of patients to the 9276 listed in that appendix so as to confine the scope of the investigation. Only the records of the 9276 patients in Appendix A and no others were sought. However, though the patients in Appendix A were enrolled with Dr Gill between 1 January 2005-31 August 2008 it was necessary for the search warrant to extend to the enrolment, clinical and other records for patients listed on the PHO register since 1 October 2003, the date Dr Gill joined ProCare, as “important consultations and records” relating to those patients could have occurred since that date.
[42] She accepted the files the subject of the search warrant contained confidential medical information between doctor and patient, but said this was relevant to MoH’s investigation because it would confirm (or otherwise) that a consultation actually occurred – something that did not appear on the PHO register – and would give the reason. The information in the files containing handwritten notes by Dr Gill bore on whether the patient was casual, evidence on which she expanded in her affidavit.
[43] Ms Rolls said Dr Gill was incorrect in suggesting it was possible to separate the clinical from the biographical information in a file because of the format of the enrolment form.
[44] MoH was very conscious of the need to protect doctor/patient confidentiality both generally and in relation to Dr Gill, but she said it had to be balanced against public interest in law enforcement and maintaining public confidence in the health system. MoH has gone to considerable lengths to preserve doctor/patient confidentiality in the 15-20 search warrants obtained by it in the past 10-15 years. Its standard practice – and the practice adopted in this case – was to have the files guarded overnight once Police and MoH officials removed them. They were held in secure storage and those files not relating to the 9276 patients sorted out and returned. Specific search criteria relating to patients under consideration (which identified 5534 patients of the 9276) were then analysed in a secure portion of MoH facilities with at least one dedicated staff member present at all times. Specially designated photocopiers were used. Only a handful of MoH investigators perused the files. Perusal was usually done outside normal office hours. Those MoH officials who had access were all experienced and attentive to confidential information. Those files whose spines showed they were irrelevant were not opened. The enrolment form for others was considered. Those files of no interest to the investigation were immediately returned and others (or copies) immediately returned on request. Any files the investigators came across which were personal to Dr Gill were left at the surgery or returned unread.
[45] Of importance, a retired general practitioner of lengthy experience employed by MoH was present during execution of the search warrant and examination of the files. If further investigation is to be undertaken, MoH will engage a medical practitioner to review documents requiring medical evaluation.
[46] Mr Unsted, a senior investigator with MoH’s Computer Forensic Section and the person responsible for the forensic examination of computer hard drives and databases for MoH, undertook that work in relation to Dr Gill’s computer. He arrived at the surgery about 2:40pm on 11 November 2008 when Police were already present. He agreed to clone the surgery hard disc drive on site after business ceased.
He was able to “burn” two CDs that evening but for technical reasons was unable to clone the hard drive until 12 November. After discussing the process with Mr Pilkington at 11:32pm (sic: a.m. ?), Mr Unsted commenced the cloning of the server at 2:50pm that day, using a special version of a computer program used for forensic purposes by enforcement agencies worldwide. It was impossible to separate out parts of the hard drive and accordingly it was completely cloned between 2:56pm and 1:18am on the morning of 13 November. The evidence was ambiguous – and Mr Unsted did not directly address the point – but it seems to be the case the surgery’s hard drive never left the premises.
[47] When Mr Unsted extracted the patient database at his own accommodation later, using another specific forensic cloning program and Appendix A, he linked the data to the 9276 patients and extracted it onto a further database for use with specific software, thus enabling the investigators to access data relating to the 9276 patients.
[48] Mr Unsted analysed the data for the 9276 patients by searching for those with only one transaction, those travelling on an overseas passport who had visited New Zealand once and stayed for less than 10 weeks, and those having a transaction on one of five dates given him by Ms Rolls. That produced the list of 5534 patients he gave Ms Rolls.
[49] In the whole of that process Mr Unsted acted in accordance with protocols designed to protect confidentiality and security of information obtained and procedures directed at sourcing only relevant information. He was the only person who used the data acquired (and has the only security device that allows viewing) and the storage media on which the data has been placed remains, secured, in his custody.
[50] His approach to the specific data concerning patients of interest in this case meant he had no need to view other patient details. He never attempted to view clinical notes. Though he cloned the entire server hard drive, he said he was obliged so to do to preserve the “forensic integrity and reliability of the data” as a “snapshot” of the plaintiffs’ computer at the time of cloning. It also showed alterations to the
data, author, timing and the date and number of prints. Mr Unsted said the copy of the hard disc drive was reliable, not corrupt, and that –
11.9 Although all information on a hard drive or server is captured by a clone acquisition, it is not viewed because I focused my analysis on material relating to the 9276 patients that are the subject of the investigation. At no time did I view any information unrelated to the
9276 patients ...
...
12.2 It is necessary to copy all data contained on a hard drive to preserve the integrity of that data and to ensure that all possible evidence is obtained. To take an incomplete copy would compromise the reliability of the data because it would not capture all relevant information. Although taking a complete copy involves copying irrelevant and personal information, I am firmly of the view that there are sufficient safeguards in place to ensure that irrelevant information is not viewed.
Search warrants and execution : General Law
[51] Before embarking on a detailed consideration of the matter, it is helpful to set out the general law relating to applications for search warrants.
[52] The Search and Surveillance Bill currently before Parliament correctly sums up the current New Zealand position concerning search warrants in the following passage from its regulatory statement:
Status quo and problem
Core Police search powers are contained in statutes that are up to 50 years old; the law has thus become outdated and has been supplemented by case law to fill gaps in the legislation. Search powers have been granted to non- Police law enforcement agencies and have developed in a piecemeal manner scattered throughout various pieces of legislation, often in an incoherent or inconsistent manner. Further, the law has not kept pace with technology. The ability of criminals to use computers and other electronic devices to commit or facilitate illegal activity needs to be matched by appropriate legislative powers to enable law enforcement agencies to extract electronic information and use surveillance devices in the investigation of criminal activity. At the same time, reasonable checks and balances must be provided against inappropriate use of those powers.
[53] Part 5 of the Bill lists no fewer than 69 statutes containing search and seizure powers which require amendment with a number of other consequential amendments also required. That shows how widely matters of search and surveillance now
pervade our law. But the general search warrant provision has, for more than the last half century, been s 198 which relevantly reads:
198 Search warrants
(1) Any District Court Judge or Justice or Community Magistrate, or any Registrar (not being a constable), who, on an application in writing made on oath, is satisfied that there is reasonable ground for believing that there is in any building, aircraft, ship, carriage, vehicle, box, receptacle, premises, or place—
(a) Any thing upon or in respect of which any offence punishable by imprisonment has been or is suspected of having been committed; or
(b) Any thing which there is reasonable ground to believe will be evidence as to the commission of any such offence; or
(c) Any thing which there is reasonable ground to believe is intended to be used for the purpose of committing any such offence—
may issue a search warrant in the prescribed form.
...
(2) Every search warrant shall be directed either to any constable by name or generally to every constable. Any search warrant may be executed by any constable.
...
(5) Every search warrant shall authorise any constable to seize any thing referred to in subsection (1) of this section.
...
(8) It is the duty of every one executing any search warrant to have it with him and to produce it if required to do so
and, relevantly:
199 Disposal of things seized
(1) Where any constable seizes any thing under section 198 of this Act, it shall be retained under the custody of a constable, except while it is being used in evidence or is in the custody of any Court, until it is disposed of under this section.
[54] The “prescribed form” is Form 50 to the Summary Proceedings Regulations
1958 which, naturally enough, follows the form of s 198. It is noteworthy that neither s 198 nor Form 50 expressly permit Issuing Officers to attach conditions to
search warrants although Reg 3 permits the scheduled forms to be used or “forms to the like effect” and permits additional information and variations to be included.
[55] Nonetheless, it has become well established over the years for Issuing Officers to include conditions in search warrants, particularly those relating to sensitive sites such as lawyers’ offices where privileged material is likely to be encountered.
[56] It was the submission of Mr Hooker, leading counsel for the plaintiffs, that conditions should have been imposed by the Issuing Officer in this case having regard to the likelihood the search would come across documents which involved doctor/patient confidentiality and might have come across privileged material.
[57] It is sufficient in a general review of the law on this topic to record the guidelines for search warrant applications discussed by the Court of Appeal in R v Williams [2007] 3 NZLR 207, 261-263 paras [209]-[222]. Comprehensive – and therefore lengthy – as it is (and significantly affected by the fact the challenge in that case was to information provided by an informer) it is nonetheless helpful to cite it in full to provide the background against which the search warrant and application in this case are to be judged:
[209] The matters set out in the application must provide the person issuing the warrant with evidence that meets the statutory criteria. In this section we concentrate on s 198 of the Summary Proceedings Act. In that context, the applicant must provide evidence that would afford the Issuing Officer with reasonable grounds to believe that there will be at or in a stated location an item (or items) that will be evidence of, that are intended to be used for or that have been used in, the commission of an offence.
[210] A warrant must be “as specific as the circumstances allow” (see Tranz Rail Ltd v Wellington District Court [2002] 3 NZLR 780 (CA) at para [41] and A Firm of Solicitors v District Court at Auckland [2006] 1 NZLR 586 (CA) at para [71]). It follows that the same must apply to the application that forms the basis upon which the warrant is issued.
[211] The application must therefore accurately describe the offence and the specific incident or incidents to which the search relates. It is not sufficient to say that among a large group of people, over a large period of time, an offence must have occurred (R v Sanders [1994] 3 NZLR 450 (CA) at p 461 and Auckland Medical Aid Trust v Taylor [1975] 1 NZLR 728 (CA) at pp
736, 740 and 749). A warrant will generally be found to be invalid where it fails adequately to specify the particular offence(s) to which the warrant
relates (R v Baptista (2005) 21 CRNZ 479 (CA) at para [24]).
[212] The application must also be limited to the places where the items are expected to be found (see R v Chapman (Court of Appeal, CA 241/02, 4
November 2002) and Baptista) and the things the application alleges will be found must be sufficiently defined. The search must be more than a fishing
expedition with nothing in particular in mind (see Sanders at p 461).
[213] Having “reasonable grounds to believe”, the test under s 198 of the Summary Proceedings Act, is a higher standard to meet than “reasonable ground to suspect”, the test under s 60(1) of the Arms Act for example (see R v Karalus (2005) 21 CRNZ 728 (CA) at para [27]). Belief means that there has to be an objective and credible basis for thinking that a search will turn up the item(s) named in the warrant (see Laugalis at pp 354 – 355), while suspicion means thinking that it is likely that a situation exists. The Issuing Officer must hold the view that the state of affairs the applicant officer is suggesting actually exists (see Sanders at p 461).
[214] While there is nothing to stop an applicant for a warrant expressing an opinion on whether there are reasonable grounds, the primary task is to set out the evidence for the Issuing Officer (see Sanders at p 460). In general, an applicant’s job is to provide all the facts that may be relevant to the Issuing Officer’s decision to issue the warrant (see Tranz Rail at para [21] and R v Butler (Court of Appeal, CA 439/00, 10 April 2001) at para [31]). It is important that the applicant does not present only selected facts, or leave out things that the applicant thinks may mean the Issuing Officer is less likely to issue the warrant (see Butler at para [4]). The applicant officer must give the Issuing Officer the full picture (see McColl).
[215] Applicants for a search warrant must state that they personally believe in the truth of the facts they are including in the application, or it must be obvious to someone reading the warrant that the applicant personally believes the facts to be true (see Sanders at p 460). The person applying for the warrant does not need to have personal knowledge of the facts set out in the application. However, where he or she does not have personal knowledge, the basis for believing in the truth of the facts must be set out. Where an applicant relies on information of which he or she does not have personal knowledge, the source of that information must be clearly stated so that the Issuing Officer may assess its reliability and cogency (see Baptista at para [9] and Sanders at p 460).
[216] There is often a particular difficulty with warrant applications based on information provided by informants. In such cases, there has to be some accompanying evidence in the application suggesting why the informant should be considered reliable and why the informant’s assertions are solidly grounded in more than mere suspicion, rumour or gossip ...
[217] The source and nature of the information itself may affect reliability. For example, an eyewitness account will be more reliable than information passed through multiple sources and then on to the police ...
[218] Where aspects of an informant’s story unrelated to the alleged offending, such as personal details about the offender, are able to be verified through other inquiries the informant will be considered more reliable. ...
[219] Particularly in cases where only general or brief information is provided by the informant, it must be supported by information from the
police about the source and the reliability of the informant in order to be considered reliable ...
[220] As well as the effect the external factors discussed above will have on reliability, the way in which the applicant records the information received from the informant will affect its reliability. ...
[221] There is a public interest in the protection of police informers. The Court will prevent the disclosure of identifying information to an accused where that is necessary to protect an informant’s identity and it will use a confidential filing system. The Issuing Officer must, however, be given all information held by the police when deciding whether to issue the warrant, no matter how sensitive the information might be (see Poelman at para [35]).
[222] As a general check, an applicant should scrutinise the grounds on which he or she applies for a warrant and consider, taking the role of devil’s advocate, whether the grounds provide a sufficient basis for a warrant to be issued (see Savelio at para [35]). Unless not practical, as a matter of best practice, applicants should also have the application checked by a superior officer or a legal adviser to ensure that it meets the statutory criteria for the issue of a warrant.
...
[224] In summary, applicants for warrants should:
(a) Accurately describe the offence they believe the search relates to.
(b) Explain what it is they expect to find and why, and where they expect to find it and why. Applicants should be as specific as possible.
(c) Make sure they describe the place where they expect to find the item accurately, such as the correct address of a house or registration number of a car.
(d) Include a description of all relevant information held or received (whether favourable or unfavourable) and all relevant inquiries made.
(e) When describing the information received, state the date when each piece of information was received, who received the information, and in what circumstances. Provide an assessment (with reasons) of the significance and reliability of the information.
(f) Describe the relevant inquiries that have been made. State the date on which each inquiry was made, who made it, how each inquiry was conducted, and the circumstances in which it was conducted. Explain (with reasons) the significance of those inquiries.
(g) Explain any delay between the last receipt of information and/or the last inquiry and the application for a warrant. If there has been a delay in applying for a warrant, make any necessary inquiries to ensure everything contained in the application is current and explain why that is so.
(h) If information relied on is from an informant, give as much information about the informant as possible, including the informant’s name, address and relationship to the suspect (if known) and any specific information on past reliability.
(i) Indicate in the application who received the information from the informant, when and in what circumstances.
(j) As far as possible, report information received from an informant in the informant’s own words. Consider attaching the original notes of the conversation to the application.
(k) Disclose all relevant information, even if confidential. Confidential information (for example, as to an informant’s identity) does not have to be disclosed to the suspect (even if later he or she is charged) but it must be disclosed in the warrant application. If applicants are concerned about inadvertent disclosure of confidential information, they should consider putting it in an attachment to the affidavit, sealed and marked confidential. Applicants should refer in the affidavit to the attachment and swear to their belief in its accuracy.
(l) Explain the reason for every expression of belief in the affidavit.
Applicants should never express a conclusion without saying why.
(m) Scrutinise the grounds on which they apply for a warrant and consider, taking the role of devil’s advocate, whether the application meets the statutory criteria.
(n) Where practical, refer the application to a superior officer or legal advisor for checking before it is submitted to the judicial officer.
[58] It is also pertinent to add that in R v Kissling [2009] 1 NZLR 641, 648 para [18] the Court of Appeal added:
[18] It is important to recognise that the case must be determined by reference to s 198 of the Summary Proceedings Act 1957. This point was emphasised recently in R v T (CA 615/07) [2008] NZCA 99:
“[9] Guidance as to best practice for those who apply for search warrants is provided in R v Williams [2007] 3 NZLR 207 (CA) at paras [208] – [225] (and particularly at para [224]). Obviously the greater the departure from best practice, the greater the risk of a warrant being set aside (see para [225]). But the courts must not lose sight of the fundamental principle that an application for a warrant under s 198 of the Summary Proceedings Act 1957 must be supported by evidence which affords the Issuing Officer with reasonable grounds to believe that evidence associated with the commission of an offence is at the stated location. Where the application provides such evidence with reasonable specificity, the material supplied is not misleading or selective and the power of search which is sought is not unduly wide, there will be little or no scope for a successful challenge.”
[59] The Court of Appeal went on to warn that Williams “was intended to provide guidance to those seeking warrants rather than a test for determining whether warrants are valid, an issue which must be addressed by reference to s 198” and if omissions or errors are of “peripheral significance” they do not detract from the cogency of the balance if s 198 is satisfied, and that “it is important that defence counsel (and the Courts for that matter) do not engage in nitpicking exercises.”
[60] What those executing search warrants should do when confronted with large volumes of material and difficulty in sifting the relevant from the irrelevant was considered in A Firm of Solicitors (at 606-607 paras [91]-[97]) where the Court of Appeal said:
[91] Neither Reynolds [v Commissioner of Police of the Metropolis [1985] QB 881] nor Bramley [R v Chesterfield Justices, ex p Bramley [2000] QB 576] was cited to us, but they are relevant to the issues relating to irrelevant material and relevant but privileged material. In Reynolds at p 896, Slade LJ said that a warrant issued under the Forgery Act 1913 (UK) could not authorise the police officer executing it to remove from premises indiscriminately every book, file, bundle or document he could lay his hands on, even for the purpose of temporary sorting. Removing material even for the purpose of sifting off-site was a seizure. However, he said that the officer executing the warrant was entitled to remove from premises files, books, bundles or documents which, at the time of removal, he reasonably believed contained forged material or material which might otherwise be of evidential value. If that occurred, any subsequent sorting process had to be carried out expeditiously, with non-evidential material being returned promptly.
[92] In Bramley, Kennedy LJ said at p 588 that, where the police officer executing a search warrant believes material to be subject to privilege, he must not seize it. The officer will need to examine items in respect of which privilege is claimed or, where no claim is made, to inform himself so that he can determine whether he has reasonable grounds for believing it to be subject to privilege.
[93] Kennedy LJ cast doubt on the application of the decision in Reynolds to situations other than those arising under the specific legislation in issue in Reynolds. He accepted that it was a common-sense answer to the situation faced by an officer executing the warrant who is faced with a mountain of material to do a preliminary sift through the material and then take away a large part of the material to sort it out elsewhere. But he said that, unless the consent of the owner of the premises was obtained, this would not be authorised by a statutory provision which permits a person executing a warrant to seize items which he or she reasonably believes are evidence in relation to an offence under investigation or which need to be seized to prevent evidence being concealed, lost, altered or destroyed. He said at p 586 that, where the seizure involves items which do not fit within those categories (in particular, irrelevant material), then the person executing the
warrant would have no defence to an action for trespass to goods based on unjustified seizure of the material.
[94] Kennedy LJ distinguished Reynolds on the basis that the Forgery Act, which was the relevant legislation in the Reynolds case, provided that material that was seized would be taken to a Justice to be disposed of according to law, which meant there was a quick and effective remedy available if the officer executing the warrant went beyond its terms (at p 587). Turner J agreed with the judgment of Kennedy LJ. Jowitt J dissented.
[95] While Reynolds and Bramley dealt with different statutory provisions, we do not find the reason given in Bramley for distinguishing Reynolds particularly convincing. To the extent that the existence of a “quick and effective remedy” may be relevant, it could be argued that, at least in so far as privilege is concerned, there is a quick procedure in the SFO Act in s 24(5) for the resolution of disputes relating to privilege, which could be seen as having some features in common with that applying under the Forgery Act which applied in the Reynolds case. However, s 24(5) does not deal with the problem which would arise where the material seized includes irrelevant material.
[96] If the approach taken by the majority in Bramley were followed in this case, it could be argued that an SFO officer executing a search warrant issued under s 12 could never remove from the searched premises a computer hard drive containing data other than data which was relevant to the investigation, or privileged material. Nor would cloning of such a computer hard drive on site, followed by removal of the clone, ever be permitted. We do not consider that to be the law in New Zealand, at least in the context of the SFO Act. We did not hear argument about the position applying to searches made under other New Zealand statutes and express no view on those other statutory provisions.
[97] To the extent that the judgment of the majority in Bramley and the judgment of Slade LJ in Reynolds conflict, we prefer the latter. The approach suggested by Slade LJ in Reynolds represents a reasonable balance between the competing interests of respect for privacy rights and effective law enforcement in cases involving large amounts of documentary material or computer data.
[61] The search warrant in this case authorized search of the plaintiffs’ computer hard drive. In fact it was cloned. The legality of such a process and the conditions to be applied were also considered in A Firm of Solicitors where the Court of Appeal, dealing with the search provisions of the Serious Fraud Office Act 1990, said (at 608-609 paras [100]-[115]:
[100] The cloning of a computer drive appears to be the exercise of the power under s 12(1)(e) to take a copy of a “document”, but this is permitted only if the person executing the warrant believes that the document (that is, the material on the hard drive) may be relevant to the investigation. If so, cloning would be permitted, as would the removal of the clone from the
premises at which the search occurs. The more common situation will be that the material on the hard drive will comprise a mixture of relevant and irrelevant material. In this case, it also contained privileged material. That raises more complex issues which we discuss below.
[101] The authority given by s 12 must be read subject to s 24(1), which says that nothing in the SFO Act requires a legal practitioner to disclose a privileged communication. The subsequent reference in s 24(5) to a situation where “any person refuses to disclose any information . . . on the ground that it is a privileged communication” implies that some opportunity will be given to a legal practitioner to determine whether privileged information will be disclosed.
[102] In the present case, the computer hard drive itself was removed, to allow for the cloning to take place off-site. This must have been an exercise of the power under s 12(1)(d) to remove a “thing”, which could occur only if the person executing the warrant believed on reasonable grounds that the computer hard drive may be relevant to the investigation or may be evidence of an offence involving serious or complex fraud.
[103] In many situations, the cloning of a computer hard drive, whether done on-site or off-site, will be the most effective and least inconvenient way of achieving the objects of the search, and the occupier of the premises being searched may in some cases be prepared to agree to that step being taken, subject to appropriate safeguards to prevent access to irrelevant material and to privileged material. Where the search involves a law firm, the firm would need to be careful not to waive the privilege which belonged to the clients of the firm, not to the firm itself. But, in principle, we think that it would be possible to agree to a cloning on site or the removal of the computer hard drive for cloning off-site, subject to appropriate conditions that protected privilege and ensured that the agreement to the cloning did not therefore amount to an improper purported waiver of privilege.
[104] There was no such agreement in this case, however, and it appears that none was sought. ...
[105] However, for the future we go on to consider what the situation would be in a case where the warrant was appropriately limited in scope. The question is: If a warrant was appropriately specific (which in this case would have required specification of the nature of the investigation and the documents sought in connection with that investigation), would the removal of the computer hard drive and subsequent cloning of it, subject to undertakings to protect privilege, have been possible without breaching s 12?
[106] We believe that there may be situations in which it can be said that the computer hard drive is a thing which is relevant to an investigation (and could therefore be removed under a s 10 warrant) if the circumstances are such that:
(a) there are reasonable grounds to believe that there is data stored on the hard drive which is, or may be, relevant to the investigation;
(b) this evidence cannot be extracted from the hard drive without the use of forensic investigative techniques;
(c) it is not practicable to carry out those extraction measures on-site without the risk of destruction of the evidence or the risk that relevant evidence will not be successfully extracted; and
(d) there is no practicable alternative to removing the hard drive itself for the purpose of undertaking the extraction measures off-site.
[107] If an issuing Judge is satisfied of all of those matters, we accept that a warrant could be issued which empowered the removal of the hard drive for subsequent cloning and extraction of relevant (and non-privileged) material. But such a warrant would have to be on such terms that it preserved the law firm’s right under s 24 of the SFO Act (and common law obligation) not to disclose any privileged communication. It would also need to have conditions. These would need to include a condition ensuring that material relating to other clients of the firm was not accessed, except where unavoidable to ascertain if the material is irrelevant. There would also need to be a condition ensuring that irrelevant material relating to other clients or to the firm itself, and material relating to the client under investigation which was not relevant to the investigation, was permanently deleted from the clone after extraction of the relevant, non-privileged, material, or returned to the law firm. The s 24(5) process would need to be invoked to deal with any disputes about privilege.
[108] In view of the intrusiveness of this action, the issuing Judge would need clear evidence that no practical alternative existed and would be obliged to ensure that the conditions subject to which these actions could be undertaken were adequate to achieve the above objectives. In that regard, conditions attaching to Anton Piller orders made in the civil jurisdiction of the High Court may provide some guidance, though there would obviously need to be adaptations to suit the circumstances of the case. It would be necessary to ensure that the cloning exercise, and the subsequent extraction of evidential material, was undertaken by an appropriately qualified and independent expert. It may be that the process should be supervised by the issuing Judge or a person appointed by the issuing Judge for the purpose.
[109] Similar considerations would apply to the cloning of a computer hard drive at the site of the search, and the subsequent removal of the clone.
[110] We recognise that removal of a computer hard drive for cloning, or removal of a clone made on site, would necessarily involve the removal of irrelevant and privileged material where there is a search of a law firm’s premises. Mr Harrison said this would involve “seizure” of privileged information, and that that was impermissible. The term “seizure” is not used in s 12 or s 24 of the SFO Act: s 12 refers to “removal”, though there seems to be no practical difference. The privilege protection in s 24(1) says a law practitioner is not required to “disclose” privileged information: the removal of privileged material subject to protections against disclosure does not, on the face of it, offend that provision.
[111] In our view, a warrant which permits removal of a computer hard drive for cloning (or removal of a clone made on site) on the basis outlined at para [106] above, but which has conditions preventing SFO officers having access to the hard drive or the clone until privilege claims can be made and, if necessary, resolved under s 24(5), does not infringe s 12 or s 24 of the SFO Act.
[112] Although the privileged information on the hard drive is “removed” from the law firm’s premises, the protection of privilege under s 24 is preserved: no “disclosure” occurs or is required. The SFO and the law firm can then engage in a process (under the supervision of the issuing Judge or his or her delegate, if necessary) to permit claims of privilege to be made and to avoid disclosure to the SFO officers of privileged material. That would preserve the protection in s 24 of the SFO Act, and ensure that the warrant did not abrogate legal professional privilege. If the issuing Judge needs to be involved, the effect would be that the ex parte application for the warrant would be converted to an inter partes proceeding on the way the conditions to the warrant should be complied with. Expert evidence could be adduced if necessary.
[113] The removal of the hard drive while it holds irrelevant material as well as evidential material would, in our view, be justified on the basis outlined by Slade LJ in Reynolds.
[114] In our view, removal of a hard drive or a clone of a hard drive would be analogous with the removal of a book or very long document which contains a combination of relevant, irrelevant and privileged material. The fact that there is privileged material or irrelevant material in the book should not prevent the officers conducting the search from removing the book. It cannot be contemplated that the search would involve reading the whole book on-site and tearing out the pages containing relevant and non- privileged information for removal. Neither should it be contemplated that any claim of privilege not be respected. What is required is a warrant with conditions to deal with the situation appropriately.
[115] We are also satisfied that a search properly made on the basis we have outlined at para [106] above pursuant to a s 10 warrant with appropriate conditions (and in compliance with those conditions) would not be unreasonable in terms of s 21 of the Bill of Rights.
[62] Everyone is entitled to be “secure against unreasonable search or seizure” (s
21 NZBoRA). Section 21, as it affects execution of search warrants, was considered by William Young P and Glazebrook J in Williams (at 267-271 paras [226]-[252]) which relevantly reads:
Summary of principles of search and seizure dealt with in this judgment: Link between unlawfulness and unreasonableness
[226] Legality and reasonableness, although related, are distinct concepts. [227] A lawful search may be an unreasonable search where it is conducted
in an unreasonable manner (such as being conducted with excessive force).
[228] For the purpose of assessing the admissibility of evidence, an unlawful search or seizure will, however, be unreasonable and therefore in breach of s 21 of the Bill of Rights, except where:
(a) the error is minor or technical; and
(b) the error is not noticed before the search or seizure is undertaken.
[229] After [R v] Shaheed [[2002] 2 NZLR 377], the factors identified in [R v] Grayson and Taylor [[1997] 1 NZLR 399] (including urgency (see para [20] above)) will not be relevant to an assessment of reasonableness but most will move to the balancing phase under Shaheed, where they will be taken into account in assessing the seriousness of any breach.
...
When bad faith can render a warrant unlawful
[231] The existence of a collateral purpose (even if that purpose is dominant) does not render a search unreasonable where the search is otherwise lawful and reasonable and as long as the scope of the search covers only what is necessary to fulfil the lawful (authorising) purpose for the search ...
[232] Any collateral purpose must, however, be a legitimate law enforcement purpose. ...
[233] Further, if the lawful purpose is a mere ruse, then the search will be unreasonable. A conclusion that the purported purpose for a lawful search was a mere ruse should not be lightly drawn. ... It should be judged from the perspective of the operation as a whole.
...
Claiming a personal remedy for breach
...
[236] The main aim of s 21 of the Bill of Rights is to protect privacy interests. It is only where a person’s reasonable expectations of privacy have been breached that a personal remedy under the Bill of Rights (that is, exclusion of evidence) is available. The reasonable expectation of privacy enjoyed by a person is to be judged largely objectively. A broad view of privacy interests should be taken
[237] Everyone actually present at a search of private property has a reasonable expectation of privacy, with the likely exception of pure trespassers on a property for unlawful purposes such as burglars. ...
[238] The strength of the privacy interest is a factor to be taken into account under the Shaheed balancing test. This will depend both on the strength of the links of the person to the property involved and on the type of property being searched. For example, there is a greater privacy interest in a residential property as against a commercial one. ...
...
Effect of a breach on downstream evidence
[241] Where evidence is obtained in the course of a single transaction which includes an unreasonable search in breach of the Bill of Rights, there will be
a sufficient connection between the breach and the evidence for that evidence to be tainted by the breach.
[242] In cases where there is a gap in time between the breach and the gathering of the evidence, if that evidence would not have been obtained but for the breach, then the subsequent downstream evidence is tainted by the original breach. ...
[243] The strength of the links of the subsequent evidence to the breach is taken into account when assessing the seriousness of the breach under the Shaheed balancing test. ...
...
Conduct of the Shaheed balancing test
[245] The first step in the Shaheed balancing test is to assess the magnitude of the breach ... This involves assessing (in combination):
(a) the extent of the illegality ...
(b) the nature of the privacy interest considered objectively ... ; and
(c) any aggravating or mitigating factors. [246] Factors that can aggravate a breach include:
(a) a substantive breach of a specific statutory code ...
(b) conducting a search in an unreasonable manner ...; and
(c) police misconduct.
[247] The main factors mitigating the seriousness of a breach are:
(a) where the search takes place in a situation of urgency ...;
(b) where the strength of the connection between the person and the property searched or seized is weak ...
(c) where there has been attenuation of the link between the breach and the evidence ... ; and
(d) where there is inevitability of discovery, the onus being on the
Crown to prove this. ...
[248] Police good faith, the courtesy with which a search is conducted and the fact that the unlawful or unreasonable search takes place in the context of the investigation of serious criminal activity are all neutral factors ...
[249] The assessment of the seriousness of the breach should be conducted in a systematic manner. The extent of the illegality, the nature of the privacy interest and any aggravating and mitigating factors should be considered in turn and then in combination to reach an overall conclusion on seriousness.
...
[250] Having assessed the seriousness of the breach, the next stage is to balance the breach against the public interest factors pointing away from the exclusion of the evidence. These factors are considered in combination and not in isolation. ... They are:
a) The seriousness of the crime. A crime is considered serious if the starting point of any sentence is likely to be in the vicinity of four years or more or where there are elements of a threat to public safety involved, such as the carrying of a loaded weapon in public. The more serious the crime the more weight this factor is accorded. Crimes involving a serious incursion into the personal bodily integrity of the victim, particularly where there is a significant risk of there being further victims, are regarded as particularly serious.
...
(b) The nature and quality of the evidence. The more probative, reliable and crucial the evidence is, the more likely it is that the public interest in the conviction of criminals might outweigh the breach of rights. Conversely, where there is a significant issue of unreliability because of the breach, the balancing test would come down in favour of exclusion. ...
[251] The aim of the balancing exercise is to assess whether the remedy of exclusion of evidence is proportionate to the breach. The fact that there has been a breach of a quasi-constitutional right and the seriousness of the particular breach in question must be given due weight. Strict rules cannot be laid down. The exclusion of evidence under the Shaheed balancing test must be tailored to the circumstances of each case and it remains an evaluative decision for the individual Judge. ...
[252] Generalisations can be made, however. The reliability and probative value of the evidence will often outweigh a minor breach where the crime is of a serious nature. ... When the illegality or unreasonableness is serious, however, and supported by a strong privacy interest, then, in the absence of any mitigating factors such as attenuation of causation or a weak personal connection to the property searched or seized, any balancing exercise would normally lead to the exclusion of the evidence, even where the crime was serious. This result would be almost inevitable where the breach was deliberate, reckless or grossly careless on the part of the police. ...
[63] Finally, since the level of Police involvement in the execution of this search warrant was challenged, it is helpful to note the following passage from R v Sanders [1994] 3 NZLR 450, 473:
A related point is that s 198 appears to contemplate that some aspects of the executing officer’s role will be non-delegable. Only a constable has authority to execute a search warrant: s 198(2). Only a constable is authorised to enter premises and break open receptacles, although he or she may be accompanied by assistants: s 198(3). It is the constable who is authorised to seize things pursuant to the warrant: s 198(5). The word “assistants” implies that those accompanying the constable may also enter, search and seize, but the legal responsibility plainly remains with the constable to ensure that the methods and limitation stipulated in subss (3) to
(8) of s 198 are complied with. Only if the constable is personally present supervising the assistants could that responsibility be discharged. ...”
[64] A team of searchers must still be under the command of Police officers (R v Pickering (1996) 3 HRNZ 449, 452) and, given that s 199 may also be engaged here, it is helpful to refer to Rural Timber Limited v Hughes [1989] 3 NZLR 178,
186 where the Court of Appeal held that “custody” in s 199 “must be interpreted reasonably to make the section workable”.
[65] Other cases relied on by counsel or offering glosses on what has preceded will be discussed as required.
Submissions
[66] As will be seen, this application was argued more as if it was one to exclude from any subsequent litigation between these parties the information gained by the MoH rather than as if – as it was – an application for judicial review principally based on s 21 NZBoRA. Thus, Mr Hooker focused the early part of his submissions on confidentiality of the doctor/patient relationship, its recognition by the medical profession and its acknowledgement in such statutes as the Privacy Act 1993 and the Health Information Privacy Code Health and Disability Commissioner Act 1994. He noted its recognition by MoH and the privilege accorded aspects of doctor/patient confidentiality by s 69 of the Evidence Act 2006.
[67] Execution of the search warrant, he submitted, broke the doctor/patient confidentiality régime irretrievably. He relied on R v Dyment [1988] 2 SCR 417 where the Supreme Court of Canada held that once confidentiality is broken, restoration is impossible. He emphasised MoH seized all the plaintiff’s files, many of which contained highly sensitive personal information. Removal of the files to another location for sifting amounted, he submitted, to seizure in law relying on A Firm of Solicitors.
[68] He submitted the issues for determination included whether Ms Rolls’ affidavit misled the District Court into issuing the warrant by statements which were wrong, over-played, or omitted material facts.
[69] The second issue was whether MoH identified to the Issuing Officer that the files to be seized would contain private confidential information and whether the Court properly balanced the interests of patients against the public interest in criminal investigation. He questioned whether the Issuing Officer should have imposed conditions on the warrant to protect doctor/patient confidentiality or privilege, and whether the search and seizure was unlawful or unreasonable.
[70] It followed that a deal of the material put before the Court as exhibits to affidavits and the subject of significant submissions was largely (other than in respect of accuracy and suggested misleading omissions) focused on what lay behind Ms Rolls’ sworn statements, not on what was necessary to bring the Issuing Officer to the point where he might have properly regarded the requirements of s 198 as satisfied.
[71] Mr Hooker submitted the terms of the contract between the Auckland DHB and the PHO/ProCare/Dr Gill were “critical” and covered in detail which version was in force at the time, with what addenda and whether there was variation between MoH websites and explanatory memoranda and the contract itself. But what was put in issue by Ms Rolls’ affidavit was whether material at Dr Gill’s surgery might disclose that she had “enrolled” patients and received subsidies for them when they were ineligible for such subsidies.
[72] What must be assessed is the state of Ms Rolls’ knowledge at the time she swore her affidavit, not what was discovered on the search warrant being executed: the end cannot justify the means (Williams at para [66]; R v Javid CA319/06 [2007] NZCA 323, 11 June 2007). Mr Hooker submitted Ms Rolls’ obligation was to present all relevant information known to her, both for and against the application.
[73] Mr Hooker then submitted the nub of Ms Rolls’ affidavit was her “Summary” which set out the source of her belief Dr Gill acted fraudulently in claiming subsidies for patients who should have been treated as “casual users ... instead of being enrolled”. The correctness of that summary was dependent on a correct interpretation of the phrase “casual user”. Ms Rolls mis-stated the position. He said she “should have placed before the Court the relevant documents and allowed the
Court the opportunity to interpret the contract and assess whether Rolls’ interpretation ... was correct.” The Issuing Officer was required to “understand the terms of the contract and the entitlement of the doctor to receive capitation funding”.
[74] Mr Hooker’s submissions - extremely detailed and veering towards repetitiousness on the PHO contract point – were critical of Ms Rolls’ summary of the subsidy position as applying to Australian and British visitors, particularly as appearing in para 29.3, saying that in terms of the Schedule to the Health Benefits (Reciprocity with Australia) Act 1999 Art.3 it was sufficient if Dr Gill formed the opinion that they needed “immediate necessary medical treatment” as they were then entitled to subsidy as if New Zealanders. Ms Rolls mis-stated the position, a submission on which he elaborated by reference to versions of MoH websites.
[75] He was similarly critical of Ms Rolls’ position as to United Kingdom visitors. Under the Schedule to the Health Benefits (Reciprocity with the United Kingdom) Act 1982, their eligibility appears in Art.1 but he submitted there may be differences between the statutory entitlement and the MoH websites in the forms which were public both before and after the date of Ms Rolls’ affidavit . He submitted para 83 of her affidavit showed certainty of view but may have been inaccurate if the website was placed before the Issuing Officer, something he submitted also should have occurred so that the “Court could then have assessed the allegations against the Ministry’s own views” and “would not have accepted Ms Rolls’ categorical statement since they were contradicted by the MoH web pages at the time”.
[76] Mr Hooker further submitted Ms Rolls misrepresented the contract for subsidy and thus misled the Court. He submitted there was doubt as to which contract was applicable - though they were largely identical - and pointed to the definitions which he submitted were applicable. They relevantly read (in all versions of the contract put in evidence):
Casual Users means Eligible Persons not enrolled with you who received the Services from you.
Eligible Person means a person who is eligible for publicly-funded health services in accordance with the current Health and Disability Services Eligibility Direction published in the New Zealand Gazette.
while the “Eligibility Direction” reads :
“Eligibility” means the right to be considered for receipt of publicly-funded services, but does not equate to an entitlement to receive those services, and eligibility is assessed at the time services are sought (it may not operate retrospectively);
“Eligibility criteria” means the criteria set out in clause 4 of this direction, any of which, as a minimum, must be satisfied before any person may receive any publicly-funded service;
4. Eligibility Criteria
A person is eligible for publicly-funded services if he or she is in New Zealand at the time of seeking services and falls into any one or more of the following categories:
(7) In respect only of eligibility for services required to be provided under the agreement referred to in the Schedule to the Health Benefits (Reciprocity with Australia) Act 1986 or any of its successors, a resident of Australia who is in New Zealand on a temporary basis:
(8) In respect only of eligibility for services required to be provided under the agreement set out in the Schedule to the Health Benefits (Reciprocity with the United Kingdom) Act
1982 or any of its successors, a person recognised by the
Government of the United Kingdom as a national, who has his or her usual place of abode in the United Kingdom, and
is in New Zealand on a temporary basis.
[77] An “Enrolled Person” was defined as a
“person who is enrolled with you in accordance with you in accordance with the Referenced Document entitled “Enrolment Requirements for PHOs” as set out in cl 3.2 of Schedule A1 to Part A
and “Enrolled Patient” has the same meaning.
[78] Clause 3.2 of Schedule A1 of Part A of version 17 of the PHO contract lists three versions of documents and their purpose, including version 2.2 of the “Enrolment Requirements” for PHOs.
[79] It is convenient to note here that Ms Adams, leading counsel for MoH, said there were three categories of patients: those enrolled who were eligible for funding and entitled to capitated funding, casual users who were eligible for funding but not eligible to be enrolled on the PHO register, and ineligible patients who were not
eligible for any public funding. Schedules she prepared showing the contractual and funding arrangements will be discussed later.
[80] Mr Hooker also drew attention to another 16 clauses of the contract which he submitted were “vitally important” and analysed these at length. It is not considered necessary to review those submissions bar noting the definitions of “Community Services Card” and “High Need Groups” may possibly impact on a doctor’s subsidy rights vis-à-vis such patients.
[81] Schedule F.3 dealing with “General Medical Services provided to Casual Users” prescribes differing subsidy rates for differing categories of such users. Mr Hooker’s submitted those varying rates were “very much at the heart of the case” and that when Ms Rolls said United Kingdom or Australian visitors were entitled to some payment, she created the impression for the Issuing Officer that a system was still in place for Fee for Service despite the fact that no such system had been operative since 2002. He submitted that Casual Users only received a subsidy if they came within cl 3.5 of the Schedule – the table of differing subsidies – and prescribed no payment for Casual Users which would be considered to be a one-off payment as described by Ms Rolls. Casual Users had to be Enrolled to receive funding, hold a Community Services Card – not available to visitors from the United Kingdom or Australia under the reciprocal arrangements – or be an Eligible Child under 18.
[82] Mr Hooker submitted Part G dealing with audit should have been drawn to the Issuing Officer’s attention and Ms Rolls’ affidavit should have advised of Dr Gill’s co-operation with the audit which was partially completed at that date in order to consider whether the information listed in the search warrant was obtainable by MoH by other means. The application should have specified why the warrant was necessary and why alternatives to seizure could not be pursued (Television New Zealand Limited v Police [1995] 2 NZLR 541, 553, Calver v District Court at Palmerston North (No.1) (2004) 21 CRNZ 371, 387-388 para [67]. The co- operation of Dr Gill should also have been mentioned.
[83] He submitted MoH’s audit protocol should have been detailed in the affidavit or exhibited so the Issuing Officer could impose a term requiring compliance with
the protocol on execution. He also submitted the Issuing Officer should have imposed a term on execution that the MoH medical practitioner supervise the cloning of the hard drive.
[84] In a summary of his detailed submissions on a large number of contractual provisions, Mr Hooker submitted Ms Rolls’ obligation was to state accurately the detail of the contract, not selected portions, and put the contract and the Referenced Documents before the Issuing Officer to enable him to assess the accuracy of the information provided. If Ms Rolls’ summary of the three groups of patients was, he submitted, inadequate or incorrect, then the inference Ms Rolls drew of the possibility of fraud on Dr Gill’s part was incorrectly based. The overall result was to mislead the Issuing Officer.
[85] As to the statutory tests he said, in summary, that Enrolled Patients are subsidized by the capitation fee on enrolment, not on consultation; patients who were not enrolled are subsidized by a GMS benefit if they fit the criteria in Schedule F.3 and have a Community Services Card; if they are not, the doctor receives no GMS subsidy. In Mr Hooker’s submission, Ms Rolls incorrectly stated the position as to the importance of enrolment and understated a doctor’s power to dis-enrol a patient; the responsibility to monitor persons leaving New Zealand lies with MoH. He was critical of Ms Rolls omitting any comment about patients signing enrolment forms when they would not return to the particular doctor even if only in New Zealand for a visit.
[86] That founded a submission that Ms Rolls incorrectly stated how the system worked and created the impression “there was a one-off consultation payment which adopted the claim under the contract”, a statement which was inaccurate and misled the Issuing Officer.
[87] Mr Hooker was also critical of Ms Rolls’ references to the audit report. She failed to make clear, he said, that the report was only in draft. Her affidavit gave the impression it had been completed. He said Ms Rolls’ statements misled the Court in that regard. In fact, Dr Gill had responded to MoH’s draft in detail complaining the analysis was incomplete and inaccurate, and inviting the auditors to return.
[88] Ms Rolls’ reliance on the statistics in her affidavit meant the Issuing Officer was not aware many of Dr Gill’s patients chose to have two doctors because of the centrality of her practice and her specialty. He was also critical of the statistics Ms Rolls produced.
[89] Mr Hooker listed ten matters of detail he submitted should have been disclosed including some already listed, adding that it omitted information from MoH websites for such persons and for the public generally; misrepresented Dr Gill’s obligations under the contract between MoH and PHO; and failed to disclose to the Court that there was more than one enrolment guideline on the MoH website which varied from the contract.
[90] Mr Hooker then returned to present extensive submissions on confidentiality, saying MoH accepted it was of high value and to be preserved – something the contract confirmed – and that MoH’s audit protocol required confidentiality to be preserved during investigations as did statutes including ss 59 and 69 of the Evidence Act 2006.
[91] Mr Hooker expanded orally on his written submissions. Accepting the Evidence Act 2006 expressly applies only when Court proceedings are in train, he submitted that comparable jurisdictions elevate doctor/patient confidentiality to a matter of highest value. Some enshrine it in statute as a right.
[92] It is unnecessary to cite extensively from the audit protocol since MoH accepts doctor/patient confidentiality is important – though Ms Adams drew a distinction between confidentiality and privilege – but cl 43 of the protocol does say that “patient confidentiality will be preserved throughout the audit” and provides that during the investigation process the “copying of patients’ records will only be done where it is reasonably considered necessary”, with inspection being carried out under the supervision of a registered medical practitioner.
[93] MoH, Mr Hooker said, continued to hold over 15,000 paper-based and
25,000 electronic files for the plaintiffs’ patients. He said the sheer number impacted on the validity of the warrant both in terms of privilege and confidentiality.
These were matters the Issuing Officer had to determine at the time of the application: “the fact that some files may contain privileged information and therefore would not be subject to search and seizure”.
[94] He relied on Jacks v Hastings District Court (HC Napier CIV-2004-441-
000093 16 December 2004) where a doctor’s computer was seized to try to ascertain from it the sender of offensive emails. The warrant was issued with no conditions and this Court, noting Police acceptance of the importance of doctor/patient confidentiality as a factor to be weighed, held the warrant too general. It should have included, as its sole condition, one “restricting Police access after cloning to the non-patient information” (at p 20 para [70]). He noted that in Jacks this Court opined that search warrant applications involving competing values such as arose in that case should be dealt with by a District Court Judge (p 27 para [100]). He submitted that should have happened here.
[95] Mr Hooker submitted the exchange with the Issuing Officer was insufficient to identify and properly deal with the confidential information which was to be searched and seized and in particular said nothing about the seizure of confidential medical records or about the high value accorded doctor/patient confidentiality.
[96] Mr Hooker then embarked on an extensive review of Canadian authority – particularly R v Serendip Physiotherapy Clinic (2003) 227 DLR (4th) 520 at first instance – but accepted the Canadian statutory requirements for search warrants differ from those in New Zealand, and that Serendip was overturned on appeal. Such Canadian authority as remains relevant will be reviewed later.
[97] Mr Hooker next reviewed English authority, though accepting search and seizure was governed by different provisions of the Police and Criminal Evidence Act 1984 (UK). He submitted that, nonetheless, Britain has accorded a high value to doctor/patient confidentiality and search and seizure of medical records is statutorily required to be under judicial control.
[98] Mr Hooker then dealt with medical privilege and confidentiality as appears in ss 59 and 69 of the Evidence Act 2006 though accepting those sections do not deal
with document inspection prior to Court proceedings being commenced. He submitted protection of confidentiality was required in this country for pre-trial matters at least (Complaints Assessment Committee v Medical Practitioners Disciplinary Tribunal [2006] 3 NZLR 577 (SC)) though he had to accept that a broader protection of confidentiality was only discussed – and then apparently only in the context of discovery – by McGrath J (dissenting at p 606 para [96]). That notwithstanding, he submitted that doctor/patient confidentiality was afforded a high value by the Privacy Act 1993, the Health Information Privacy Code 1994 and the Health and Disability Commissioner Act 1994, and should be accorded significant value in all aspects of national life including applications for search warrants.
[99] He submitted the Court might infer from the absence of input from the Issuing Officer that he did not properly consider – if at all – how to deal with confidentiality. He was critical of the Issuing Officer making no note of the conversation and imposing no conditions on the warrant.
[100] Mr Hooker submitted the form of the enrolment application should also have been put before the Deputy Registrar with an explanation as to why MoH needed to access anything further so as to minimize intrusion into the plaintiffs’ and patients’ personal rights.
[101] Mr Hooker also submitted the search warrant was too broad and did not detail that the focus of the inquiry was records subsequent to 2003 when capitation funding was instituted. He submitted the warrant affidavit and the warrant itself should have been more specific about the documents being sought, and why, and specifically exclude the whole of the balance, relying on A Firm of Solicitors.
[102] He noted that s 198 requires search warrants to be executed by a ‘constable’. Despite that, he submitted it was MoH which both applied for and executed the warrant. Both application and execution were therefore, he submitted, invalid, though he accepted that was a matter for the Court to decide as a question of fact. He noted it was Ms Rolls who made the appointment with Dr Gill, Ms Rolls who was in possession of the warrant and explained the intent for it to be executed, Ms Rolls who produced the warrant and Ms Rolls who was the officer-in-charge.
The Police officers were, he submitted, entirely under MoH’s control and took no more than a subsidiary role in execution and were not, according to Ms Bramwell, actively involved except possibly as Ms Roll’s assistants. He relied on the non- delegable role of an executing officer and the lack of affidavits from the Police concerning their participation (Sanders at 473).
[103] Mr Hooker submitted this was an MoH operation from beginning to end and the police officers had, in essence, no authority to enter, search or seize documents in Dr Gill’s surgery. They had no interest in the files once they had been transported away. Their authority was accordingly completely absent and the search was unlawful unless a constable’s custody was maintained or all the files were being used in evidence or were in the custody of the Court (s 199). This was not a case like Rural Timber (at 186) where seized items in the custody of the Police were uplifted by another agency for examination with Police permission and the Court of Appeal regarded officials of the other agency as “holding the materials on behalf of and subject to the direction and control of the Police”.
[104] Mr Hooker submitted the evidence disclosed no participation of Police after the files were taken away, in control, disposal, return, storage, or examination.
[105] Mr Hooker next submitted that the wholesale removal of the files included material which is not connected in any way to the offences specified in the application and accordingly there was a breach of s 198(5): Auckland Medical Aid Trust v Taylor [1975] 1 NZLR 728, 738; R v Green and Thomas [2008] NZCA 352,
8 September 2008 para [28].
[106] Mr Hooker submitted there was no sifting on site and Dr Gill did not give permission for MoH to remove all her files, particularly her personal files. Ms Rolls’ explanation that it would have been “hugely time-consuming ... to try and extract only those files listed on Appendix A” confirmed much of the material taken was irrelevant to MoH’s inquiry and not covered by the warrant.
[107] In summary, the warrant was too broad and general and the search was done by MoH, not by Police constables; there was no appropriate sifting of files before
seizing all; files seized including material outside the scope of the warrant; and
MoH cloned the computer without examination of its database.
[108] Mr Hooker’s submissions then turned to the cloning of the hard drive of the practice computer on which were all patient medical files, funded or non-funded, together with personal information of Dr Gill. Cloning of the hard drive, he submitted, took away all that material.
[109] Mr Hooker questioned whether taking a complete copy was necessary when the search warrant was only for certain computer files. He pointed to Mr Unsted’s evidence of later being able to extract just the patient database with a specific program, coupled with what he said was lack of explanation as to why that could not have been accomplished in the first instance. He submitted there was an obligation on Mr Unsted to determine whether any particular file containing data had evidence of the offences covered by the warrant. He noted there was no Police involvement in the cloning of the hard drive. Again, he referred to A Firm of Solicitors and the observations of the Court of Appeal on cloning hard drives.
[110] Mr Hooker pointed to the fact the Issuing Officer was provided with no basis in the search warrant application that evidence could not be extracted on-site from the hard drive without use of forensic investigation techniques, and why it was not practicable to extract relevant material without risking destruction of evidence or the balance of the data. The warrant application said nothing as to why cloning was necessary. The warrant affidavit simply advised the District Court that MoH wished to search computer records – but there was no reference to cloning.
[111] Dealing with the scale of the seizure, Mr Hooker submitted that Ms Rolls’ affidavit entirely omitted to discuss why there might be any particular evidence on any of the thousands of patient files which might be evidence of a criminal offence. There was a claim there was wrongful action in relation to a large number of files, but no explanation as to why all had nonetheless to be seized.
[112] In a further summary, Ms Rolls’ affidavit failed to state accurately how the publicly-funded system worked by identifying the eligibility criteria and variations
according to patients; failed to place before the District Court copies of the contract, the draft audit report, website material, relevant legislation and audit protocols; misrepresented the draft audit report as a final report, mis-stated its findings as to eligibility, and failed to put Dr Gill’s response before the Court; misrepresented the statistics from the draft audit report and failed to mention Dr Gill’s co-operation in her response; failed to identify why cloning the computer was necessary and why the thousands of individual files had to be searched; and failed to identify why confidential communications needed to be examined.
[113] The Issuing Officer failed to deal with medical confidentiality by imposing appropriate conditions, particularly by balancing competing interests between MoH on the one hand and Dr Gill and her patients on the other by appointing a supervising doctor to examine the medical records to protect confidentiality.
[114] Thus, Mr Hooker submitted, the warrant, the execution, the seizure and the search were all unlawful.
[115] For MoH Ms Adams – though disputing its relevance - felt obliged to deal at length with the contractual arrangements between MoH, ProCare and Dr Gill as Mr Hooker had placed much emphasis on those documents.
[116] She submitted a general practitioner such as Dr Gill was entitled to enrol patients that were New Zealand residents or otherwise eligible who required ongoing health services from her and, when she did enrol such patients, she was entitled to up to three years of capitation funding for each.
[117] She submitted the warrant affidavit focused on patients who were not entitled to be enrolled because they were visiting from overseas or elsewhere in New Zealand or only seeking vaccinations. Such patients, though they may have signed enrolment forms, should have been treated as casual users and funded on a consultation basis. MoH’s stance was that Dr Gill had enrolled patients and obtained capitation funding for them though many would not again visit another doctor in New Zealand. That led to MoH’s view that Dr Gill had committed offences against
the Crimes Act 1961 as set out in the search warrant application. That led in turn to paras [93]-[99] of the warrant affidavit and the extensive warrant.
[118] She submitted the warrant was executed by the Police in conjunction with MoH investigators and a search made for the files for the 9276 Appendix A patients but, when the Police and MoH officials were confronted by a very large volume of current and archived patient files in over 100 foolscap boxes, 50 Eastlight folders and 1400 Rotoscan folders, those executing the warrant immediately concluded that seizing and securing all the patient files by removal was the only realistic alternative to time-consuming examination on site. That would have required closure of the practice for a lengthy period and ongoing round-the-clock security. Even on the day of execution, the process lasted well into the night and the analysis continued for some days and weeks later, during which files beyond the 9276 Appendix A patients were returned.
[119] Ms Adams submitted that Police and MoH officials reasonably believed that each file might incorporate material covered by the warrant and it was not practicable to complete the sifting exercise on the day without seizure and removal.
[120] She advised MoH’s investigation had been suspended since December 2008 as a result of placement of the files in the Court’s custody.
[121] Generally, Ms Adams noted the detrimental effect of delay and interruption on criminal investigations. These proceedings necessitated MoH disclosing much of its investigation prior to Dr Gill being interviewed and, should the judicial review proceedings succeed, possibly potentially risked depriving MoH of all its evidence by exclusion, despite s 30 of the Evidence Act 2006 requiring unlawfulness in obtaining evidence to be balanced against the evidence’s cogency and a decision whether exclusion is the proportionate response.
[122] If successful, proceedings such as these could, she opined, become the common first line of attack to frustrate investigations by agencies such as MoH.
[123] Finally on general points, counsel noted that issue and execution of a search warrant is the exercise of a discretion and, in judicial review terms, will only succeed if the applicant demonstrates the decision was not reached in accordance with law (Television New Zealand v Attorney-General [1995] 2 NZLR 641, 647; Mercury Energy Limited v Electricity Corporation of New Zealand Limited [1994] 2 NZLR
385, 388-389).
[124] These being judicial review proceedings without cross-examination, Ms Adams relied on the recent decision in R (Faisaltex Ltd & Ors) v Preston Crown Court [2009] 1 Crim App R 37 p 549, 578 where the English Court of Appeal adopted the observations in R v Chief Constable of Warwickshire Constabulary ex parte Fitzpatrick [1999] 1 WLR 564, 579 that:
“Judicial review is not a fact-finding exercise and it is an extremely unsatisfactory tool by which to determine, in any but the clearest of cases, whether there has been a seizure of material not permitted by a search warrant”.
and that
Judicial review has only disadvantages and no advantages when compared with a private law remedy.
[125] The Court of Appeal in Faisaltex went on to say (ibid):
We are satisfied that judicial review proceedings are not an appropriate mechanism for resolving the large number of issues and factors as well as law which are likely to arise when determining whether excessive seizure has taken place in the execution of these warrants.
[126] She noted the pleadings challenged every conceivable aspect of what occurred. Many changed and others only appeared in Mr Hooker’s submissions. That said, she made the point that judicial review proceedings were not the place to adjudicate on whether MoH was right in its belief as to the commission of offences by Dr Gill, or as to likely defences, or as to admissibility or exclusion of evidence.
[127] She therefore condensed the issues into four: whether the Registrar had reasonable grounds to believe the offences alleged had been omitted; whether the warrant was sufficiently specific; whether the warrant lawfully permitted the search
and seizure of confidential material; and whether the warrant was lawfully and reasonably executed.
[128] Ms Adams analysed Ms Rolls’ affidavit and the discussion with the Issuing Officer and submitted many of the approximately 20 failures and omissions in disclosure asserted in the claim were immaterial as to whether the s 198 threshold was crossed.
[129] Ms Adams submitted there was no obligation on MoH to give the Issuing Officer copies of the contractual material which underlay Ms Rolls’ summary (in paras [7]-[29]). Dr Gill’s summary in her evidence was, however, materially inaccurate.
[130] Ms Adams produced schedules which, she submitted, summarized the contractual and funding arrangements. Though Mr Hooker disputed their contents, they constitute a helpful summary. They included:
a) The PHO funding agreement version 17 which came into force on
1 July 2006.
b) Relevant Referenced Documents in the PHO agreement including
Enrolment Requirements.
c) Management agreement between ProCare subsidiaries.
d) Dr Gill’s sub-contract with ProCare under which she accepted
ProCare’s health service obligations.
[131] She submitted the PHO Register Enrolment Requirements included PHOs co- ordinating health care and funding for local communities; the PHO register of enrolled patients who are eligible for and entitled to funding for their doctors; the process of submitting the PHO register for funding payments; the three year duration of funding unless the patient is sooner dis-enrolled; enrolment forms used by doctors to indicate patients intend to use that doctor for their “ongoing care”; and
the enrolment process putting the obligation on doctors to enrol only patients whom they assess are entitled to enrol on the Register.
[132] In that regard, the doctor is the “trusted gatekeeper” as only the doctor has access to the required information. Dr Gill’s own enrolment forms contained sufficient information for her to make that assessment.
[133] Ms Adams drew attention to the limited funding entitlement of visitors from Australia and the United Kingdom. Their eligibility appeared in Ms Adams’ Appendix 2 which showed that no United Kingdom or Australian citizen who is temporarily in New Zealand is eligible to be enrolled on a PHO register for funding even if they meet the criteria of the relevant reciprocity legislation. All that led to a submission that:
“In relation to the search warrant, the key point is that the Ministry had reasonable grounds for believing that Dr Gill was aware that she had enrolled patients (including visitors from the UK and Australia) on her PHO register whom she knew intended to be in New Zealand temporarily (confirmed by information supplied on the enrolment form such as ‘visitor’ or ‘on vacation’)”. This is entirely inconsistent with the requirement for a PHO enrolment that patients intend to receive ‘ongoing care’ from Dr Gill.”
[134] The website was directed at members of the public. It did not precisely use the terms of the statutory and contractual requirements.
[135] The information which underlay the warrant affidavit concerning MoH’s reasonable belief in the commission of offences resulted from the Ministry’s audit and its post-audit investigation. The latter indicated a number of people on Dr Gill’s PHO register were registered with her and another doctor, a number on her PHO register who described their situations as temporary or transitory and were referred by hostels, back-packers and the like, and a large number of patients she had enrolled who only consulted Dr Gill for travel vaccinations and never intended to enrol with her long-term.
[136] Ms Adams made the point the audit was only one aspect of the evidence supporting of the Issuing Officer’s reasonable belief. In fact, as the warrant affidavit said, MoH’s investigation after Dr Gill’s response had provided additional grounds
for suspecting the commission of offences, namely her enrolment of patients who clearly did not intend to use her for their ongoing care; her failure to inform patients about the benefits of enrolment; and her failure to maintain an auditable process, all of which were in breach of the Enrolment Requirement. Dr Gill was also thought to have provided inaccurate information by recording consultations that did not occur.
[137] In addition, at the time of applying for the warrant, MoH had reasons to believe Dr Gill’s breaches were dishonest as set out in both Ms Rolls’ affidavits. They included an understanding by Dr Gill of the relevant Enrolment Requirements
– and those who should be classified as casual users – but a high number of contested patients revealed by the audit and later investigation plus a number of inappropriate enrolments.
[138] Ms Adams submitted the reach of the search warrant was material directly and reasonably connected to the suspected offending as described in the warrant affidavit. That particularly applied to the trends indicating inappropriate enrolments on the PHO register with 37.5% of enrolled patients being casual users and about two-thirds incorrectly enrolled. It was reasonable to postulate that further examples would come to light in the material to be searched.
[139] The warrant affidavit detailed the reasons for searching the practice’s computer hard drive. Mr Unsted established that cloning was necessary to ensure forensic integrity of the data, resulting in a “snapshot” at the date of cloning. All data on the hard drive had to be copied for this purpose. Copying only identified files as suggested by the plaintiffs was not possible and would not capture other relevant data such as deleted items.
[140] Ms Adams addressed generally the more than a score of errors and omissions listed by the plaintiffs and said:
a) The terms of the PHO agreement could not constrain the application for the issue and execution of the search warrant, whether on confidentiality, dispute resolution or audit grounds or any other.
b) Section 22G of the Health Act 1956 requires providers to make available records relating to services only for the purpose of “verifying the claim for payment”, but goes no further. Information obtained for that purpose may not be used for another (Hobson v Harding CA50/95, 12 December 1996 pp 15-16). Section 22G does not permit gathering evidence for a criminal investigation.
c) Contrary to the plaintiffs’ stance, MoH’s application dealt with the issue of confidentiality of doctor/patient records, including clinical records, both in the text and in Ms Rolls’ discussion with the Issuing Officer.
[141] Accepting that the law has long held general warrants not limited as to subject matter or location are invalid (Tranz Rail Limited v Wellington District Court [2002] 3 NZLR 780, 793 para [38]) and that warrants cannot authorize a “fishing” search (Television New Zealand Limited v Attorney-General), Ms Adams nonetheless submitted that MoH’s warrant application fulfilled the requirements for such applications and warrants as appearing in Sanders (at 466-467 per Fisher J). The offence was defined in the warrant. The warrant did not authorize entry, search and seizure beyond that justified by the evidence given the Issuing Officer.
[142] The application and affidavit set out the basis for MoH’s suspicion that Dr Gill had wrongly enrolled patients with reference to the 9276 names in Appendix A. The warrant was required to locate records of those patients and was framed with those patients in mind. Ms Adams accepted the warrant could have attached Appendix A as the affidavit did, but submitted the possible offences were well defined, as was the supporting material. Attachment of Appendix A was therefore superfluous. She made the point that attaching Appendix A to the warrant may have made its ambit “crystal clear” but there was no evidence it would have made any difference to MoH’s actions.
[143] If the warrant was deficient in form – something MoH did not accept – Ms Adams submitted its shortcomings were unable to be questioned without
demonstration of miscarriage of justice (s 204 Summary Proceedings Act 1957;
Sanders at 467-468).
[144] She turned to the argument that the Issuing Officer lacked jurisdiction under s 198 to issue a search warrant for confidential records or should have imposed conditions relating to confidentiality on the warrant. Acceptance of the first would effectively render doctors immune from search and, therefore, prosecution. Acceptance of the second was not mandated by authority or statute. Conditions concerning searching privileged material are only accepted as appropriate in search warrants for lawyers’ offices. They are not required by cases dealing with search warrants relating to doctors’ surgeries where the issue is one of confidentiality not privilege.
[145] Elaborating on the distinction, she submitted the relationship between doctor and patient is well established as giving rise to confidentiality, but not privilege. The distinction was discussed by the Supreme Court in Complaints Assessment Committee (at 586):
Scope of the privilege under s 32
[13] Privilege is an exception to the general rule that relevant and otherwise admissible evidence can be compelled to be given to a Court by a witness or a party. Privilege arises in respect of relationships in which the public interest in maintenance of special confidence outweighs the public interest in ensuring that the Court has all the information it needs to come to a correct decision. Despite the long-standing professional ethical obligations of medical practitioners to maintain confidence in communications from patients, no privilege from disclosure in Court proceedings attached at common law to such communications. At common law a medical practitioner was competent and could be compelled to give evidence of confidential communications made to him by a patient. The Court had a discretion to excuse disclosure in breach of ethical values if injustice would not be caused in the particular case.
and, per McGrath J (at 607):
[98] A privilege may be created by statute or, as in the case of legal professional privilege, the common law. However, the common law has never recognised a privilege arising out of the desirability of maintaining the confidentiality of what is learned by a doctor during professional relationships with patients. Ever since 1776, when Lord Mansfield CJ ruled in the Duchess of Kingston’s Case that a physician who was a witness in a bigamy trial had no privilege to withhold from disclosure that he had learned during a professional attendance on the defendant, a married woman, that
she had entered into a previous marriage, the common law has taken a consistent position in rejecting arguments for recognition of a common law medical privilege.
[146] Ms Adams presented full submissions outlining how doctor/patient confidentiality and privilege have been diminished in successive Evidence Acts.
[147] The Evidence Further Amendment Act 1885 s 7 established privilege in any proceedings for communications made to a doctor necessary to enable the doctor to prescribe or treat the patient. That was limited to civil proceedings by s 9 of the Evidence Further Amendment Act 1895. By the passage of s 8 of the Evidence Act
1905 and s 8 of the Evidence Act 1908 doctors were not, without the patient’s consent, permitted to divulge in civil proceedings any communications of matters disclosed to them professionally to enable them to prescribe for patients. Thus, Ms Adams argued, the earlier privilege was repealed. The ambit of the proscription on disclosure was further limited by s 32 of the Evidence Amendment act (No.2)
1980 which debarred the disclosure of protected communications by doctors and psychologists other than with the patient’s consent or where sanity, testamentary capacity, insurance or criminal purposes were involved. These, she submitted, were limited privileges as noted by McGrath J in Complaints Assessment Committee (at p
615-616):
[132] Medical confidentiality covers a wide field which both Parliament and the Courts have seen as primarily an ethical issue rather than one that should be entirely regulated by the law. The fields covered by the ethical rule of medical confidence and the legal rule of privilege are accordingly distinct. ... In drawing the line between these fields Parliament has recognised that privilege is a blunt instrument for protection of confidentiality which cannot address the degree of sensitivity of particular information and which has the constant potential to damage the interests of justice in judicial proceeding, including the professional disciplinary process. It is for this reason that neither medical privilege under ss 32 and 33, nor the judicial discretion to excuse a witness from giving evidence under s 35, cover all aspects of medical confidentiality, or all situations in which evidence of what a patient has said to a doctor in the course of their professional relationship might be relevant and necessary to the fair disposition of proceedings.
[148] However, this proceeding was covered by the Evidence Act 2006 and s 59, in her submission, further relegated the issue of confidentiality to a matter arising between doctor and patient and confines questions of privilege largely to criminal proceedings.
[149] Ms Adams, however, noted that MoH accepts s 59 broadens the law in that it applies to information obtained by a doctor as well as communications made by a patient but restricts the privilege to examinations concerning drug dependency or other conditions that might manifest criminal conduct. She stressed s 59 is limited to those situations and does not confer privilege generally or specifically civil proceedings.
[150] Ms Adams argued it was misconceived for the plaintiffs to rely on the Privacy Act 1993. Though the combinations of ss 11 and 46 give legal force to the Health Information Privacy Code 1994, neither grant privilege to communications made in the course of the doctor/patient relationship. And, though r 11(1)(b) of the Code requires a health agency not to disclose health information without the patient’s consent, that is limited by r 11(2)(i).
[151] Notwithstanding her argument, Ms Adams submitted the provisions of the Privacy and Health Acts maintain the increasing Parliamentary divergence over time between doctor/patient confidentiality on the one hand and privilege on the other. That led, in her submission, to there being no general privilege available for the doctor/patient relationship in New Zealand law.
[152] She also made the point that s 59, when taken in combination with s 53, the umbrella section concerning privilege, only conferred privilege for a “proceeding”, that is to say a “proceeding conducted by a Court” (s 4). In its terms that was inapplicable to the stage of the investigation into the plaintiffs’ practice when the warrant was granted and executed.
[153] That, as Complaints Assessment Committee explained, was consonant with the concept of privilege limiting rights of disclosure in Court cases. However, in Kissling (at 649 para [25]) the Court of Appeal held that it was “open to doubt whether an application for a search warrant is a ‘proceeding’ within the definition provided by s 4 of the Evidence Act ... but, that said, it would be odd, to say the least that a privilege which applied in the context of proceedings generally did not apply in the case of search warrant applications”.
[154] That approach, she submitted, was also consistent with the information- gathering which was an inherent part of the search warrant application and execution: a privilege against the public disclosure of information in Court was not the equivalent of information-gathering by a regulatory body for the purpose of considering whether Court proceedings should issue.
[155] Even if the plaintiffs’ submission was upheld that execution of search warrants and later perusal of material seized might amount to partial disclosure of confidential material, s 65(4) of the Evidence Act expressly provided that any privilege attaching to communications was not waived if the disclosure occurred involuntarily - such as under the compulsion of a search warrant - and s 53(4) gives Courts power to rule against disclosure in a proceeding of privileged material.
[156] Legal professional privilege was, she submitted, unique. Cases such as
Rosenberg v Jaine [1983] NZHC 6; [1983] NZLR 1, 7, Calver and A Firm of Solicitors show that s
198 does not authorize seizure of material known to be covered by legal professional privilege. Warrants likely to infringe have been held invalid.
[157] More specifically with regard to material confidential as between doctor and patient, Ms Adams submitted the views of the Ontario Court of Appeal describe the position aptly under the Canadian equivalent of s 198 in R v Serendip Physiotherapy Clinic (2004) 245 DLR (4th) 88, 102-103 paras 33-35 where, speaking of the privacy of health records, the Ontario Court of Appeal held:
The privacy of health records
[33] The respondents submit that the special regime imposed by the application judge can be justified because of the heightened expectation of privacy that exists in personal information contained in medical records. They point out that the Supreme Court of Canada has stressed the importance of respecting the confidentiality of the physician-patient relationship. Too easy access to medical records would constitute an intolerable intrusion into a relationship where the patient, in order to obtain proper treatment, is driven to reveal information of a most intimate character. Access to health records by the state threatens an intrusion into the core Charter value of respect for the dignity of the individual. Further, as La Forest J. pointed out in [R v ] Dyment [(19898) 45 CCC (3d) 244] at p.258, the trend towards the health team approach results in a much wider dissemination of private medical information amongst health care professionals. Thus, it is entirely possible that the patient records seized in this case concern not just records of the treatment received at the
physiotherapy clinic but confidential information from the patient’s treating physician.
[3] I accept this characterization of the issue and of the nature of the intrusion. The question, however, is whether the statutory conditions in s.487 of the Criminal Code strike the proper balance between the state interest in law enforcement and the public and individual interest in protecting the confidentiality of health records. In my view, with the possible exception of psychiatric records, the section does strike the proper balance. ... the section is designed to mediate between the state interest in the investigation and the public and individual interest in documents and other materials in which there is a reasonable expectation of privacy. As a result of s.487, Parliament has permitted a judicial officer to authorize all manner of serious intrusions into the privacy of individuals. If the requirements of s.487 are met, the police can enter a private home and seize the most intimate of records such as diaries and personal papers. The Criminal Code does not mandate a further post-seizure process other than the procedures in s.489.1 dealing with the return of seized property. Using s.487, the police can obtain financial and other records from third parties, material about the individual’s lifestyle, intimate relationships and even personal opinions. They can gain access to a core of biographical and other information that is protected by s.8 of the Charter. But, it has never been suggested that a properly issued search warrant, meaning a search warrant that was obtained in accordance with the requirements set out in s.487, authorizes an unreasonable search and seizure.
[35] It follows that the requirements of s.487(1)(b), in particular the requirement that the officer provide information under oath of reasonable grounds to believe that the records sought “will” afford evidence with respect to the commission of an offence, strikes the proper balance even where the target of the search is the seizure of health records. By its terms, s.487 precludes granting of a search warrant for the purposes of a fishing expedition or on the basis of mere suspicion. Thus, where, as here, it is conceded that the medical records are not protected by privilege, the only mandatory prerequisites to the granting of the search warrant are those set out in that section. In the absence of a Constitutional challenge to the validity of s.487, I can see no principled basis for drawing a line around the types of records seized in this case and exempting them from the s.487 régime and I can find no legal basis for engrafting common law requirements onto a comprehensive statutory scheme.
[158] Were that not held to be the law in New Zealand, she submitted an anomalous situation would arise effectively forbidding the issuing or executing of search warrants for material which might contain doctor/patient confidential communications.
[159] She acknowledged MoH regards doctor/patient confidentiality as an important value but submitted it was adequately covered by Ms Rolls’ conversation with the Issuing Officer. He, plainly, saw no need to impose conditions on execution
of the warrant. Additionally, he plainly decided MoH had established there was reasonable ground for believing the material listed would be located and would assist. But the limitations in the warrant ensured it was not overly wide, unlike the position in Jacks (at [55] and [99]) where it was held the privacy dimension was insufficiently considered to invalidate the warrant.
[160] Ms Adams discussed at some length the European and Canadian cases on which the plaintiffs rely but submitted they applied to different situations and different regulatory or statutory contexts.
[161] By reason of the text of the warrant affidavit and the conversation with the Issuing Officer, it was submitted for MoH the Issuing Officer was well aware he was being asked to authorize a search warrant which would deal with patient records at a doctor’s practice with obvious issues of confidentiality. Seen in light of the seriousness of the charges being investigated and the fact that only patient records could advance the investigation, the limited disclosure which would result from execution was appropriate.
[162] Ms Adams submitted that there was no choice for MoH to advance its investigation but to seek a search warrant and execute it. Section 22G could not provide evidential documents for prosecution. There was a necessity to obtain relevant information from patient records. Separation of data was impracticable. The audit protocol required inspection by a medical practitioner. The Issuing Officer did not think it necessary to impose conditions to protect doctor/patient confidentiality but permitted the investigation to continue. Confidentiality was a value which reposed in the patients not the plaintiffs. Indeed, the plaintiffs accepted that MoH could only obtain limited access to material under s 22G.
[163] Turning to execution, Ms Adams submitted the Police and MoH officials adopted best practice protocols to protect confidentiality in the patient records uplifted by the means earlier discussed. Thus, Ms Adams submitted, execution of the search warrant could not be characterized as “unreasonable” in terms of s 21 of NZBoRA and was undertaken with appropriate regard to doctor/patient confidentiality. In particular, invocation of privilege still remains available for
uplifted material if privilege attaches and if Court proceedings ensue. She noted the plaintiffs had not sought the protection of s 59 of the Evidence Act 2006 to this stage.
[164] Concerning whether the warrant was reasonably executed, Ms Adams also noted that s 21 of NZBoRA has been held to be less relevant to the validity of the issue of a warrant and more relevant to execution (A Firm of Solicitors at 614, para [131]). Even searches done unreasonably and therefore in breach of s 21 do not automatically result in exclusion (Williams at 277-278 paras [220]-[240] et al). A balancing test must be undertaken as now appears in s 30 of the Evidence Act 2006.
[165] That particularly impacted on whether removal for off-site sifting of volumes of material, including a cloned copy of the disc drive thought to contain material covered by the warrant, was appropriate.
[166] Ms Adams observed that MoH was particularly interested in obtaining the files of the 9276 patients in Appendix A and initially intended to isolate or remove only those files. MoH investigators first assessed 20 or so priority files and then, when the retired medical practitioner arrived, submitted those files to him to check under Police supervision. After waiting till patients had left, MoH commenced assessing other files, isolated as being part of Appendix A, but were confronted by a substantial volume of files in Rotoscans, Eastlights, boxes and archived. One shelf in the reception area contained 392 files: approximately half took about 40 minutes to assess. MoH officials determined isolating the balance of the 9276 files would take days or weeks and accordingly decided to take all files potentially included in the 9276 Appendix A files and assess them off-site. That was done to avoid closure of Dr Gill’s practice and was explained to her at the time. MoH accepted that pre-
2003 files were seized, but this was because they were filed alphabetically not chronologically.
[167] Ms Adams referred to the evidence justifying the decision to seize all files: the length of time an assessment on site would have taken, the fact that all files were potentially relevant and Dr Gill operated an unreliable system. Files left on site would not have been subject to MoH control. The surgery contained no large scale
copying facilities nor had links to MoH’s computer systems. Only files that were potentially relevant were taken with many left behind. Files which were obviously personal to Dr Gill were left. The return of requested files was speedily facilitated – either with originals or copies – and MoH focused on files of highest priority, starting with the most recent and working backwards.
[168] By the time the balance of the files were lodged with this Court, 247 of about
1300 or 1400 Rotoscan files were retained plus 228 of about 760 LP 2008 files, about 73 of about 690 TC 2008 files and 9 of about 100 TC Rotoscan files. By that time, MoH had identified files for about 1900 of the 5534 targeted patients.
[169] Ms Adams concluded on this topic:
7.43 ... it is plain that the response of the Ministry investigators when searching for 9276 patient files within the much greater and undifferentiated group of files that they discovered at Dr Gill’s practice was a reasonable one. It was part of a genuine attempt to identify material covered by the search warrant and supported by a reasonable belief that the material they seized contained the relevant material sought. Obviously irrelevant material was left behind and later sifting was conducted promptly and sensitively. It was not a general search.
[170] Ms Adams’ submissions then turned to the cloning of the hard disc drive relying on A Firm of Solicitors (at 609-610, paras [105]-[112]) and the observations of Venning J in Avowal Administrative Attorneys Limited v District Court at North Shore (2009) 24 NZTC 23,252 and 23,267-23,268 paras [94]-[95], [98] where, after reference to A Firm of Solicitors Venning J held:
[94] ... It is a question of degree which must be approached on the basis of the volume of material that can be stored on a hard drive as opposed to hard copy materials and the ability of a party to properly conduct a search of that material.
[95] It may have been technically possible for the computer technicians acting on behalf of the IRD to have copied just the documents which they had identified by the hits following their interrogation of the computers. But as a matter of principle that approach is not required by the authorities.
...
[98] ... What was required in this case was an assessment by the IRD officers in relation to each hard drive they copied, first whether there was relevant material on it and whether it was necessary to copy that material so it could
be removed for later analysis. That was done in this case. The volume of information stored on a hard drive is a reasonable and relevant but not overriding consideration.
[171] Ms Adams described as “speculative” the plaintiffs’ suggestion that relevant patient data could have been extracted from the server without cloning the complete hard drive. The submissions conflicted with Mr Unsted’s evidence. She noted, in particular, Dr Gill’s personal material was never viewed nor was any other identifiably irrelevant material.
[172] Ms Adams next sought to rebut the plaintiffs’ contention it was MoH not
Police who executed the search warrant.
[173] She referred at length to Police involvement from the beginning of the search through identification to removal. A constable had the warrant. He advised Dr Gill and others present of their rights under NZBoRA. Police had oversight of copying the priority files off-site. A constable remained at the practice throughout, checking files. The Police drove the seized files away.
[174] Accepting that in Sanders (at 473) the Court of Appeal said – she suggested in obiter dicta – that “only if the constable is personally present supervising the assistants could that responsibility be discharged”, she relied on the later decision in Pickering (at 452). That was an application by the Crown for leave to appeal a pre- trial ruling that evidence of drug offending was inadmissible because the search warrant information in contention was obtained by over-flying the property. An argument that the warrant was executed unlawfully and unreasonably because it was carried out by civilian employees was rejected, the Court of Appeal holding:
Unlike the warrantless search provisions of s 18(2) of the Misuse of Drugs Act 1975, s 198(3) does not require that assistants “accompany” the police officer, that difference also being reflected in the language of s 18(1) referring to searches under s 198 warrants and s 18(2) respectively. Further, and again unlike s 18(2), s 198(3) does not require that those executing a search have reasonable grounds for belief that a search is justified or any other particular state of mind. The authority to search has already been conferred under the search warrant.
Read purposively, and recognising that the conduct of a search will often involve a co-ordinated team effort, s 198(3) does not require that a particular police officer holding the search warrant should be the first to physically
enter a property and begin a search. Entry and search may be controlled and directed, in appropriate circumstances from outside the property, by a police officer or officers deploying other officers and assistants for that purpose and to facilitate their exercise of the search warrant.
[175] Ms Adams also relied on the decision of the District Court in R v Mikhail [1999] DCR 331, 340 where a search warrant application was instituted by private investigators involved in possible unlawful piracy of computer software. They were present with a police officer at execution of the warrant. Judge Abbott ruled the question was “whether the search in question was carried out either by or under the supervision of the police officer who was in possession of the warrant and who was responsible for its execution”.
[176] Only MoH investigators knew what they were looking for, but the Police officers executed the warrant though they were not the investigators. MoH necessarily took a greater role in execution but the Police were present throughout and undertook what was required by s 198 including retaining responsibility. Accordingly, execution of the warrant in this case satisfied s 198(3).
[177] Concerning the assertion retention of the documents and files was by MoH not Police, Ms Adams submitted it did not follow from the fact that exhibits were in the physical custody of MoH that s 199(1) was breached.
[178] She submitted that “custody” of the items seized, when interpreted liberally, was satisfactorily accounted for in this case. MoH held the material on behalf of and subject to direction of the Police. MoH investigators were acting as their agents, like the traffic officers in Rural Timber. MoH was taken aback by the volume of material to be removed but thereafter held it in accordance with strict custodial protocols. The material remained in the physical custody of MoH for practical purposes until delivered to this Court. It would be unreasonable for it to be found otherwise.
[179] She therefore submitted that, overall, all the actions taken by the Police and MoH investigators were reasonable in the circumstances and within the ambit of the warrant. There had been no prejudice to the plaintiffs and, indeed, no claim of prejudice.
[180] Mr Hooker presented extensive submissions in reply.
[181] As they largely reflected his initial submissions, it is necessary to note only the salient points. They were:
a) The warrant allowed the search only of the specified items and nothing more. It omitted “patient records”. Clinical records could not be searched as that is not a synonym for ‘consultation records’. Assessing the files would have taken only 20 seconds each. Looking at the name and comparing it with Appendix A was all that was required.
b) The search warrant should not have authorized a cloning of the computer but required, first, a search of the data in the PHO database.
c) This case involved the privacy of up to 25,000 people, well outside those who might be involved should prosecution result. The 9276
Appendix A files should have been readily identifiable. Only 25% were audited and more than 50% were found to be correctly enrolled. The search warrant was therefore a “gross fishing exercise”.
d) The warrant affidavit omitted to explain the funding régime accurately including entitlement to public funding. Ms Rolls did not produce the PHO contract between MoH and ProCare and ProCare and Dr Gill. The warrant application did not match the enrolment form used by the plaintiffs. No basis was demonstrated for seizing or searching files prior to 2003.
e) Doctor/patient records were sometimes privileged and always confidential. The Evidence Act 2006 “does not control and determine whether privilege or confidentiality is determined pre-Court” nor did it deal with patients’ rights of privacy. Mr Hooker submitted patient confidentiality always has a high value and in this case was a “right”.
f) The warrant affidavit needed to establish the connection between the consultation records sought and the suggested fraud on a case by case basis.
g) Before the search warrant could be issued in the terms it was, the Issuing Officer needed compelling evidence as to why patients’ right of confidentiality must yield to the right of search. That required evidence of what the records might contain and relevance to the inquiry on a file by file basis demonstrated. Conditions should have been imposed, particularly as Ms Rolls “just wanted access to all records and trampled over all interests of patients to get there”. Patients would not have had faith in the oversight of the medical practitioner since he was not an investigator and had to be briefed by MoH on relevance. His was an “examination by the wolf who was also supposedly the protector of the privacy”.
h) Accepting that the lawfulness of the execution of the search warrant was to be determined on the Court’s view of the evidence, Mr Hooker submitted there was no evidence of active Police involvement in the search or the seizure. MoH conceded it seized material outside the scope of the warrant. In this case there was simply a wholesale taking of an extraordinarily large number of files containing no relevant information and seized without prior identification.
Matters preliminary to decision
[182] Despite the length of this judgment to date, there are three additional issues which need noting or decision before the issues can be discussed:
• The draft audit report.
• Dr Gill’s enrolment form.
• Dispute concerning additional evidence.
[183] MoH sent Dr Gill the draft audit report under cover of a letter dated 17 March
2008 and sought her comments. The report set out MoH’s findings to date concerning apparent double enrolment of patients, faulty dating of consultations and single visits and then discussed, over some eight pages, each category by reference to the PHO agreement. It set out the individual bases for the views expressed. It attached three lengthy schedules, again listing patients’ names and other details. That produced an undated four page response from the plaintiffs saying they deemed the “audit to be invalid” for a number of reasons which they detailed. In part that was because it was based on inaccurate assumptions over – ironically in the present context - a failure to copy patient files or consult Mr Pilkington over computer errors. The audit was based on a suggested inaccurate interpretation of statute and concluded with a recommendation the auditors return to complete the audit or others be assigned.
[184] The plaintiffs’ patient enrolment form was front and back of a two page document containing, as might be expected, personal details and medical history. The second closely-printed page sought additional details of patients but also a section stating “I am eligible for publicly funded health care” for a range of reasons including citizenship, visitor status, “immediately necessary” treatment and other categories. Another box said “I wish to enrol in the ProCare Primary Health Organisation” with seven statements following, including an understanding of “reasons and implications of being enrolled” with the plaintiffs, saying they were “my preferred provider of general practice services” and then, “by enrolling with this practice I will be part of your patient population for funding purposes”. That part of the form provided for the patient’s signature and a second signature appeared on the face of the form saying that “I agree that I am now an enrolled patient” of the plaintiffs.
[185] The evidential objection related to some evidential statements taken by MoH from five persons who had visited the plaintiffs and who had been interviewed as part of MoH’s investigation. They formed part of a supplementary bundle of documents produced by Mr Hooker and thus were not formally in evidence but he wished them to be considered because he said they showed enrolment was discussed
with those persons and other statements made which provided yet another way in which the accuracy of the warrant affidavit could be assessed.
[186] Ms Adams objected on the basis that they were merely a partial sample and were, without context, irrelevant.
[187] During the hearing the statements were ruled inadmissible with one exception.
[188] It has been found possible to draft this judgment without referring to the statements. Thus the ruling of inadmissibility is confirmed. It is also noted the statements formed no part of the material put before the Issuing Officer.
Discussion and Decision
(1) PHO contract
[189] Various versions of the PHO contract were put in evidence and there was a dispute between counsel as to which was operative.
[190] All were complicated and detailed documents, about 100 pages in length, with that length significantly augmented by additional protocols, schedules, documents incorporated by reference and the like. In addition, Mr Hooker referred to MoH’s websites – in forms published both before and after Ms Rolls’ affidavit – dealing with medical funding, audit protocols, enrolment forms and the draft audit report.
[191] No version of the PHO contract was exhibited to the warrant affidavit. Instead, she summarized its provisions.
[192] A central theme of Mr Hooker’s submissions was that the PHO contract should have been exhibited to the warrant affidavit to enable the Issuing Officer to consider its terms – and the terms of the additional documents incorporated in it and the other documents he mentioned – against the phrasing of the affidavit. That, it was said, would have assisted the Issuing Officer to decide whether to issue the
search warrant and, if so, on what conditions. Secondly, it was submitted that, on close analysis, the summary of the PHO contract in the warrant affidavit was inaccurate in a number of ways and thus misled the Issuing Officer. That, it was suggested, was a factor which might have been material in the Officer’s consideration as to whether to issue the search warrant and on what terms.
[193] A significant portion of Mr Hooker’s address was also occupied with submissions concerning the nature of the provision of primary health services and the subsidies therefor; details of the way in which capitation funding proceeded; the manner in which the PHO and ProCare access it; and, in particular, the terms of eligibility of Australian and British visitors.
[194] Ms Adams’ stance concerning this question was previously noted.
[195] Because that issue formed so dominant a part of counsels’ submissions on this aspect of the matter, and because the Court has reached a firm view there was no obligation on Ms Rolls to exhibit the PHO contract and its incorporated documents to her warrant affidavit – still less most of the other documents - it will slightly shorten this judgment if that topic is dealt with at this juncture.
[196] The reasons for the Court taking the view that exhibiting the PHO contact and its annexures was unnecessary include what follows. It should, however, be noted that some of the material will need reviewing to assess whether Ms Rolls’ affidavit might have misled the Registrar through inaccuracy or failure to provide material detail:
a) As the Court of Appeal emphasised in Williams and Kissling, the primacy of s 198 is important. The test for issuing search warrants in s 198 is whether the Issuing Officer, having received sworn evidence, is “satisfied that there is reasonable ground for believing” that buildings, premises or other places will contain items which, broadly speaking, will be evidence of the commission or intended commission of a nominated crime punishable by imprisonment.
b) The s 198 procedure does not contemplate a hearing on the merits supported by argument. It does not necessarily require the provision of documents supporting the application. All it requires is a statement on oath which contains sufficient detail to satisfy the Issuing Officer there is “reasonable ground for believing” that incriminating material may be found in a named place. In this case, submissions on the PHO contract question occupied more than half to two-thirds of the hearing time of a case which was expected to last two days and took nearly twice as long. That is no criticism of counsel but indicates that, had the PHO contract and its annexures been placed before the Issuing Officer, the result was likely to have been lengthy submissions, argument or discussion before the officer. Poring over the detail of the considerable additional documentation was unlikely to have been helpful. All that would have introduced an element of complexity and distraction to what Parliament has intended to be a relatively simple process.
c) The PHO contract and its incorporated documents are lengthy, complex and, depending on the way various provisions are interpreted, may even be contradictory. Putting them before the Issuing Officer would either risk no attention being paid to them or a lengthy attenuated hearing dealing with aspects of contractual interpretation. Section 198 does not require that.
d) Discussions as to the standard of proof to be attained on search warrant applications risks distraction from the statutory requirement. Satisfaction that there is “reasonable ground for believing” is not an exacting standard – certainly nowhere near proof beyond reasonable doubt – and the material put before the Issuing Officer need only be sufficient to reach that standard for the warrant to issue. As was said in Williams (at 213) all the applicant needs to demonstrate is a reasonably objective and credible basis for thinking the search will turn up the items sought. If the application does not reach that standard, it fails.
e) It will seldom be impossible for counsel to suggest that more – or, sometimes, less – material should have been placed before the Issuing Officer or the supporting material should have been differently phrased but, as the Court of Appeal has consistently said, the primacy of s 198 and its requirements must be kept firmly in mind, first, by Issuing Officers and, secondly, by the Courts. Section 198 provides a relatively straightforward set of requirements for the issue or denial of search warrants, conditioned or unconditioned, and attempts by counsel or litigants to gloss the statute with a set of much more complicated and rigorous requirements is not to be encouraged. As the Court of Appeal said in Kissling, if the material supplied to the Issuing Officer is not misleading and selective and the warrant sought is not unduly wide, “there will be little or no scope for a successful challenge”. Also pertinent is the Court of Appeal’s further observation that “it is important that defence counsel (and the Courts for that matter) do not engage in nitpicking exercises”.
f) Issuing search warrants is intended therefore to be a relatively simple procedure whereby sworn evidence is provided and the Issuing Officer decides whether or not the affidavit leads him or her to be “satisfied that there is reasonable ground for believing” the nominated incriminating material is or may be in the named place. While supporting affidavits may, as here, exhibit material which show the breadth of the expected search, the Issuing Officer is entitled to rely on the sworn statement in support of the warrant application without anything substantial in addition. In this case, Ms Rolls having made a sworn affidavit in support, there was no need for her, for example, to produce the voluminous contractual documents to support what she said about eligibility for subsidies and the categories of those entitled. Provided her affidavit was accurate in that respect, the Issuing Officer was entitled to rely on what she swore.
g) It is finally noted that the often inconvenient necessity for search warrants to be directed to constables is abolished in the Search and Surveillance Bill (cl 101).
(2) Search warrant application and affidavit
[197] Although Ms Rolls could have exhibited the PHO contract and its annexures to her affidavit and although she could also have exhibited, amongst others, the draft audit report and the enrolment form. It has already been held that there was no necessity at law for her to do so provided her sworn summary of the issues those documents raised was accurate, neither including misleading material or omitting issues that should have been covered.
[198] It is therefore necessary to concentrate on the broad thrust of the material actually supplied, measured against the requirements of s 198.
[199] Before embarking on that exercise, however, it needs to be noted that the challenge to MoH’s obtaining and executing the search warrant in this case is brought under the rubric of judicial review. What the plaintiffs must therefore demonstrate is error of law in the traditional judicial review sense, set against the requirements of s 198 (Williams, A Firm of Solicitors, and the other authorities to which reference has been made). The affidavits in this case are voluminous but, given the usual lack of cross-examination in judicial review, there is a significant weight in the observations in Faisaltex and Fitzpatrick that judicial review is an “extremely unsatisfactory tool” to make findings on the manner of applying for and executing search warrants or on their lawfulness under s 21 of NZBoRA.
[200] That said – and the only area where the Court takes the view it may have been preferable for MoH to place additional material before the Issuing Officer – there is a certain degree of cogency in Mr Hooker’s submissions that MoH’s audit protocols should either have been dealt with in the affidavit or exhibited. That would have gone some considerable distance in meeting the Issuing Officer’s obvious concerns about doctor/patient confidentiality as to the way in which MoH intended to deal with seized material. It might, for example, have resulted in the
warrant bearing a condition that execution was to be in accordance with those protocols.
[201] But the absence of reference to the audit protocol in the warrant affidavit and warrant do not undermine the lawfulness of the application before the Issuing Officer. In fact, MoH dealt with the seized material in accordance with the protocol so exhibiting it to the warrant affidavit and inclusion of a condition to that effect would have made no difference. MoH executed the warrant as if it contained a condition that it act in accordance with its audit protocol.
[202] Secondly, Ms Adams’ submissions were persuasive that a distinction requires to be drawn between doctor/patient confidentiality and privilege, with Parliament and the Courts resiling from the latter as far as search warrants and doctor/patient records are concerned. Of course, confidentiality is of significant importance as between doctors and patients (and others who are entitled to access such material) but the lack of privilege accorded such material is important, particularly when no litigation is in train between these parties (though the cautionary comments on that matter in Kissling suggest that should not be regarded as necessarily fatal).
[203] In New Zealand, doctor/patient confidentiality gives rise to no privilege against production (other than if it is later asserted and upheld in Court). Other countries may have elevated doctor/patient confidentiality to a right giving rise to privilege, but that has not been the New Zealand approach. Accordingly the Canadian and other authorities on which Mr Hooker relied have no relevance here. They bear on confidentiality, not privilege.
[204] On that issue, it must also be said that Mr Hooker’s submissions to the effect that medical records, broadly so called, can never be the subject of search warrants were patently too wide. Whilst authority in this country regularly supports the imposition of restrictive conditions on search warrants for locations such as lawyers’ offices where privileged material is likely to be encountered, privileged material is unlikely to be encountered in searches of doctors’ surgeries. Thus there is no basis for Issuing Officers to condition search warrants for doctors’ surgeries in a manner akin to conditions regularly imposed on search warrants for lawyers’ offices. To go
as far as Mr Hooker submitted would, as Ms Adams said, effectively render doctors and their patients’ records immune from search even though there might be reasonable grounds for believing criminal conduct had occurred in relation to them.
[205] As an aside, it does not appear from the judgment in Jacks whether the practicality of requiring search warrant applications for lawyers’ offices to go before a District Court Judge was argued. Intuitively, the uncongenial hours and remote locations at which some search warrant applications are processed suggests not, but the situation is likely to be overcome when the Search and Surveillance Bill becomes law.
[206] Turning to the form of Ms Rolls’ affidavit, the following observations are apposite:
a) Para 5 accurately summarizes MoH’s concerns.
b) Paras 7-15 accurately outline the salient points of the PHO strategy and funding. It could have been more discursive, but it focused primarily on the notion of “enrolled patients” which, as the contract summarized in this judgment shows, is at the heart of the funding régime. It accurately summarizes the definition of “enrolled patients” and their entitlement to funding and to inclusion on the PHO register.
c) Paras 19-21 deal, sparely, with eligibility. The affidavit may have been incorrect in referring to the MoH website if, as Mr Hooker submitted, there are minor differences between the websites – both before and after the date of the affidavit – and the PHO contract. But that is of no account: paras 19 and 21 are correct.
d) Paras 22-24 are correct, including correctly quoting from the relevant Referenced Document, the “Enrolment Requirements for PHOs” forming part of the PHO contract.
e) Paras 24-29 accurately reflect the basis for part of MoH’s concern that
Dr Gill may have received unjustified public funding and the amount.
f) Para 29 (earlier quoted) is a spare recital of the position for British and Australian visitors. It omits the qualification that Australians must need “immediately necessary medical treatment” while here to be eligible for any public health funding but the way in which that matter is covered is sufficient for s 198 purposes. The passage in para
29 dealing with British visitors accurately reflects their entitlement.
g) Paras 30-37 deal with Dr Gill’s knowledge of the capitation funding scheme and PHO enrolments. That, and the audit section, paras 38-52 and paras 63-69 contain material which was drawn from the draft audit report. Mr Hooker submitted that the fact of it being an audit report and a draft should have been disclosed to the Issuing Officer but, given the statistics are accurate, the draft report obviously echoed MoH’s tentative views. As Dr Gill had effectively rejected the entire draft, nothing would have been gained by MoH saying it disagreed with Dr Gill’s response.
h) Paras 53-62 deal with difficulties MoH (and patients) experienced with Dr Gill’s enrolment form especially as it related to casual users. The passage under consideration accurately reflects the considerable detail in the forms Dr Gill uses. Though the affidavit was erroneous in suggesting the patient could only sign the form once, that is immaterial.
i) Paras 70-76 deal with vaccination patients and accurately summarized the result of MoH’s interviews, the evidential statements and Dr Gill’s actions. The evidential statements might have been attached, but there was no need so to do in a sworn statement which accurately summarized them.
j) Paras 77-83 summarize the foregoing MoH view as to Dr Gill’s “fraudulent intent”, and records the reasons for MoH taking that view. The material comes together in para 83 (earlier cited). While Dr Gill of course takes strong exception to MoH’s views, the section under consideration appears accurately to summarize MoH’s views and the reasons therefor.
k) Paras 84-92 deal with records of travel movements. Most of this section details information held by New Zealand Customs Service to whom the warrant was also addressed but para 84 exhibited Appendix A. That incorporation of Appendix A might arguably have been better placed elsewhere in the affidavit, but its placement does not affect the warrant’s validity.
l) Finally, paras 93-99 earlier cited list the medical records, including “copying the surgery’s computer drives”. This is the section that led to the Issuing Officer’s inquiries. Mr Hooker sought to make something of what he suggested were differences between “medical records”, “patients records” and “consultation records” but when the focus was on the accuracy of Dr Gill’s recording and enrolling by contrast with patients’ eligibility for public funding, any such distinction could be no more than a nicety.
m) This last section might also, as earlier observed, have been improved by reference to MoH’s audit protocols but, for the reasons mentioned, their absence does not impact on the warrant’s validity.
[207] The terms of the warrant were earlier cited. It appears to be appropriately limited to the “thing(s)” sought with each category founded in the affidavit and is also appropriately limited to “patients listed on the PHO population” of the plaintiffs since a nominated date. It seems unexceptionable
[208] Assessing the warrant affidavit and the warrant, in terms of Williams and the earlier authorities mentioned, the Court’s view is that:
a) The warrant and affidavit are as specific as circumstances allowed given the state of the investigation and Dr Gill’s rejection of the draft audit report.
b) The papers accurately describe the offences and the time over which they were alleged to have occurred.
c) The warrant and affidavit were specific as to the location of the search and the things likely to be discovered.
d) The affidavit expressed Ms Rolls and therefore MoH’s opinion concerning “whether there were reasonable grounds to believe” leaving it to the Issuing Officer to reach his conclusion.
e) Although additional material could have been exhibited to the affidavit, for the reasons mentioned it was unlikely to have played much part in the Issuing Officer’s consideration of the s 198 criteria and may even have been unhelpful. Further, while the discussion of the relevant eligibility criteria could perhaps have been a little fuller, there is no basis to conclude it was inaccurate or misleading.
f) Finally, the affidavit deposed to Ms Rolls’ personal belief and did not elaborate. With the possible exception of reference to Dr Gill’s rejection of the draft audit report, it would have been obvious to the Issuing Officer that MoH, in its role as Devil’s Advocate, could do no more than express scepticism of the only view contrary to that which it held.
[209] In the final analysis, the Court’s view is that the warrant affidavit and the search warrant fulfilled the requirements of s 198 and the Issuing Officer was therefore justified in terms of the statute in issuing the warrant.
[210] More specifically, in terms of the first cause of action as pleaded (and the later largely identical particulars) all have been dealt with, apart from the pleading
that s 22G of the Health Act gave MoH access to all the documents it needed for its investigation. That is an inaccurate pleading of the reach of s 22G in light of Hobson.
[211] It follows that the plaintiffs’ first cause of action directed to the validity of the warrant fails, as does their third cause of action pleading the warrant was invalid due to its generality.
(3) Execution of Search Warrant:
[212] Broadly, there are three aspects of execution of the search warrant which require detailed consideration and which, in combination, founded the plaintiffs’ submission that the search warrant should be invalidated by the manner of its execution.
[213] They are the level of Police involvement, general facts relating to the execution of the search warrant and the specific facts relating to cloning the hard drive.
(i) Police Involvement
[214] The evidence of the level of Police involvement in execution of the search warrant was earlier summarized. Where MoH’s evidence differs from that of Dr Gill, Ms Pilkington and Ms Bramwell the Court prefers the more measured version given by Ms Rolls and Mr Unsted. Dr Gill was obviously upset at the time, and Mr Pilkington and Ms Bramwell’s evidence is less precise than that on behalf of the defendant. Mr Pilkington and Ms Bramwell were not there throughout. That said, it might have been helpful for affidavits to be filed by the police officers present.
[215] Search warrants issued under s 198 are required by statute to be addressed to constables. That is an anachronistic restriction not in many other statutes and has proved troublesome as the Search and Surveillance Bill regulatory statement says.
[216] In terms of the statute it was therefore necessary for the Police to be present and for Police to be in charge of execution of the search warrant even though the officers present would have known less about the investigation and what MoH required to seize than anybody else present. Their role could therefore only ever have been formal, but nonetheless they were required to supervise and participate in execution of the search warrant because the warrant was addressed to them.
[217] In formal terms, therefore, execution had to be supervised by Police as the legal responsibility for it remained theirs, but given the police officers lack of familiarity with the background to the matter, execution had to be a joint affair with MoH officers indicating what was to be seized and the police officers formally seizing it with their assistance. That was less than desirable, but must be regarded as satisfying s 198, given that the constables’ duties were non-delegable but their lack of knowledge was considerable.
[218] In order for the section to operate, the Police execution requirements of s 198 must be given a realistic interpretation in circumstances where the search warrant has actually been obtained by other agencies. Any other approach would render it near impossible for such agencies (other than those able to access statute-specific search warrants).
[219] Accordingly, the Court holds that the circumstances of execution of the search warrant in this case were that the execution was undertaken by constables, having the responsibility for executing the search warrant, but with the assistance of MoH officials under their command and direction.
[220] However, once the files were removed from Dr Gill’s surgery, it could only be said with difficulty they remained in Police custody as required by s 199. There was no evidence of any Police involvement with anything to do with the files after they were removed. Even if, in terms of Rural Timber, “custody” as required by s 199 is interpreted reasonably to make the section workable, it would be straining the terms of the section to say the Police retained “custody” of the files after their removal. As mentioned, for nearly a month after their removal the files were held securely at MoH’s premises and, whilst technically the Police may have been able to
ask for them or gain access to them, the reality is that they were not in Police “custody” between the time of their removal from Dr Gill’s surgery and deposit in this Court.
[221] It has to be remembered that this is a claim for judicial review challenging the lawfulness of seizure of the plaintiffs’ records under s 21 of NZBoRA. Perhaps surprisingly in these circumstances given the detailed attack on MoH’s actions across a broad front, beyond pleading that the documents and records were retained by MoH and contained material beyond the ambit of the search warrant, the plaintiffs only obliquely challenged whether the files remained in Police “custody” after removal. They did not plead possible non-compliance with s 199. True, Mr Hooker challenged that aspect of the matter in his submissions but, as Ms Adams remarked, a number of issues in his submissions were not supported by evidence and pleadings. On this aspect, it must therefore be held the plaintiffs have not formally challenged the lawfulness under s 199 of MoH rather than the Police holding the plaintiffs’ records.
[222] That said, had the issue been pleaded, the Court would have held on the evidence to date that any required balancing test as to the unlawfulness of MoH having “custody” of the plaintiffs’ files was far outweighed by what occurred. MoH held the files in accordance with its detailed audit protocols. They are likely to have been at least as stringent in terms of physical custody as those which might have been applied by the Police. MoH restricted access to specific named experienced officers when all police officers would have had access to them in the Police Exhibits Store. MoH’s audit protocols are impressively detailed, particularly in their protection of confidentiality. If the files had been in Police custody, every request by the plaintiffs for access to the files would have necessitated referral to MoH. Further again, the importance of the evidence to MoH’s ongoing investigation – whether it implicates or exonerates Dr Gill – is such that it would far outweigh the fact that the plaintiffs’ records happened to be in the custody of the incorrect department of State for a time.
[223] The principal bases for the plaintiffs’ complaints concerning the manner of execution of the search warrant were not at the intrusive nature of the search warrant and its execution – those were inherent in the process once the warrant was granted – but in the wholesale removal of the plaintiffs’ records, including Dr Gill’s personal records and records well beyond those of the 9276 Appendix A patients.
[224] Ms Rolls said MoH officials when they embarked on the task were taken aback by the volume of material requiring to be assessed to locate the records in which they were primarily interested, both in terms of bulk and in terms of the time which preliminary assessment would require. MoH did not anticipate the magnitude of the task confronting them.
[225] MoH must be held to be open to criticism on that score.
[226] Even if the 9276 files had been readily able to be identified, they alone would plainly have been of considerable bulk. And, from their earlier involvement with the plaintiffs’ practice, including reviewing some of the files, MoH should have known that assessing all the plaintiffs’ records so as to locate those covered by the warrant would not be a brief or an easy task.
[227] However, even if the executing officials should have been more aware than they were of the bulk of the files to be assessed and the time it would take, nonetheless they were always going to be faced with a choice whether to leave the files at the plaintiffs’ premises whilst the assessment and sifting processes continued, or remove the files for the same purpose.
[228] Important factors in making that choice were that, once seized under the warrant, seizure and custody had to be continuous until the assessment process was complete and any consequent action taken, plus the fact it was necessary for MoH to ensure the records seized were secure and not able to be altered or tampered with in any way.
[229] Leaving the files at the plaintiffs’ premises and keeping them secure would have resulted in major disruption – even closure – of the plaintiffs’ practice for the lengthy period the assessment took. Security would have been a problem. Preventing Dr Gill and her staff having access to the material other than in secure circumstances would have posed an additional problem. Copying would have been a problem. Patients visiting the premises would hardly have been unaware that persons other than Dr Gill and her staff were on-site accessing practice records with the potential embarrassment and other difficulties that would result.
[230] Deciding to remove the seized records, house them securely and process them in accordance with MoH audit protocols had the major disadvantage of depriving the plaintiffs of their records, coupled with the necessity for them to request the copying of files in order to treat patients.
[231] However, while MoH is open to criticism for failing to anticipate the magnitude of the task to be undertaken, the decision to remove the seized material rather than impound it on site must be seen as the preferable choice out of the two inconvenient options. It did ensure the records were kept intact, secure and able to be accessed only by a restricted team of officials experienced in dealing with such material.
[232] Once the seized material had been removed, its processing in accordance with MoH’s audit protocols and compliance with the plaintiffs’ requests for files and information as quickly as possible must be seen as unexceptionable.
[233] Therefore, whilst the incursion into the plaintiffs’ practice of execution of the search warrant naturally created great concern for Dr Gill and her staff and, presumably, some inconvenience for her patients, the decision taken, on security grounds, to remove the records and process them in the way just mentioned must be seen as the better choice out of the two available. The plaintiffs’ criticism of the choice made and the way in which it was implemented must therefore be regarded as unjustifiable.
[234] The cloning of the practice’s hard drive was criticised for lack of security, for indiscriminate copying - including of irrelevant material - and as denying the plaintiffs access.
[235] As mentioned, there was some ambiguity in the evidence as to whether the plaintiffs’ hard drive ever left the premises. It seems likely it did not and therefore was available to the plaintiffs at all times except, perhaps, whilst the cloning process was taking place overnight. If this is correct, there seems nothing to that aspect of the plaintiffs’ criticisms on this score.
[236] Whether or not the hard drive was ever removed from the plaintiffs’ premises, it is common ground the entire contents of the hard drive were cloned and later assessed by Mr Unsted. It is similarly common ground that there was material on the hard drive which was irrelevant to MoH’s investigation and thus outside the ambit of the search warrant.
[237] However, Mr Unsted was an MoH official bound by its protocols. He cloned and assessed the contents of the hard drive using well-recognised and accepted techniques and computer programs used by enforcement agencies worldwide. He conducted the cloning with Mr Pilkington’s assistance and, as far as possible, in a manner sensitive to the plaintiffs’ needs. He ultimately extracted only data relating to the 9276 Appendix A patients and analysed that in accordance with Ms Rolls’ directions as to what was relevant to the investigation. For the reasons he detailed, it is accepted that it was impossible to clone only those parts of the plaintiffs’ hard drive which were relevant to the investigation: the clone had to be complete with irrelevant material later sifted out to obtain a “snapshot" of relevant material. Importantly, he complied with the safeguards required to ensure that irrelevant information was not viewed.
[238] In all those circumstances while, again, Dr Gill’s concerns are understandable and the intrusion on her practice, at least in the first days after execution of the search warrant, was considerable, the conclusion must be that the manner of cloning
the plaintiffs’ hard drive and dealing with the information it contained - relevant and irrelevant to the investigation - was in accordance with best practice and was appropriate to preserve privacy and confidentiality concerns as far as possible.
[239] Finally, the Court observes that cloning the plaintiffs’ hard drive – especially if the hard drive never left their premises – is much more akin to MoH copying the plaintiffs’ material or taking a photograph of it than it is to “seizure”. Section 21 may therefore not have been engaged at all in this aspect of the matter.
[240] Since exclusion by invalidation of what occurred is not yet sought by the plaintiffs, strictly the guidelines in Williams and the balancing process mandated by Shaheed do not apply. Nonetheless, though the views which follow can only be based on the evidence so far given, the Court expresses its tentative conclusions as follows:
a) The search was legal other than in respect of the “custody” issue and any error in that regard, while not technical, does not avail the plaintiffs and has not been raised by them in their pleadings.
b) Execution of the search warrant was carried out in a way which, given the unenviable choices, was reasonable and not for a collateral purpose.
c) Whilst execution of the search warrant intruded upon the privacy interests of Dr Gill, it was to no greater an extent than was inherent in such an exercise.
d) In terms of Shaheed the only error was in the “custody” issue which was not of great magnitude for the reasons earlier outlined, though in breach of s 199. Apart from that, there are none of the aggravating or mitigating features listed in Shaheed.
e) The crimes MoH suspects Dr Gill of committing are serious and the evidence uplifted by the search is plainly material to MoH’s
investigation and, if it bears out their views, material to any subsequent prosecution. It may exonerate her.
f) Exclusion of the evidence obtained by the search warrant and its execution would, on the evidence as it currently stands, be out of all proportion to the way in which the warrant was obtained and executed.
[241] All the issues raised by the plaintiffs concerning execution of the search warrant have been considered and decided in MoH’s favour.
[242] Accordingly, the plaintiffs’ fourth cause of action based on the manner of the warrant’s execution is not made out and is dismissed.
Result
[243] The nub of the plaintiffs’ claims is that what occurred on the obtaining and execution of the search warrant amounted to unreasonable search and seizure in breach of s 21 of NZBoRA. For the reasons given, the conclusion is that no case has been made out for breach of s 21. The warrant affidavit did not mislead the Issuing Officer. It did not need to exhibit the voluminous material suggested by Mr Hooker. The manner of its execution – particularly the wholesale removal of the plaintiffs’ practice records - was not unreasonable. The way in which the computer hard drive was cloned was unexceptionable. While the circumstances created considerable concern for the plaintiffs, none of the pleaded breaches nor grounds for judicial review has been made out. No judicially reviewable error of law has been demonstrated.
[244] In the result:
a) All causes of action brought by all plaintiffs for judicial review are dismissed.
b) If the parties are unable to agree on all issues of costs, memoranda may be filed (maximum five pages) with that from the defendant
within 28 days of delivery of this judgment, and that from the plaintiffs within 35 days, with counsel certifying, if they consider it appropriate so to do, that the Court may determine all issues of costs without a further hearing.
c) Up to this stage orders have been made suppressing the names of the parties and all details of the proceedings. There will be a conference in chambers with counsel on 1 October 2009 at 9:00am to consider whether the orders for suppression should be extended and the appropriate action to take concerning the files lodged in Court.
.................................................................
HUGH WILLIAMS J.
Solicitors:
Vallant Hooker & Partners, P O Box 47 088 Ponsonby Auckland 1144
Email: rhooker@vhp.co.nz / thomes@vhp.co.nz / ctaylor@vhp.co.nz
Crown Solicitor, PO Box 2213 Auckland 1140
Email: Anna.Adams@meredithconnell.co.nz
Hershla.Ifwersen@meredithconnell.co.nz
Case Officer: Indra.Gamage@justice.govt.nz
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URL: http://www.nzlii.org/nz/cases/NZHC/2009/2566.html