Court of Appeal Cases
Court of Appeal,
Wellington
CA656/2007; [2009] NZCA 490
14 May 2009; 20 October
2009
O'Regan, Arnold and
Baragwanath JJ
Cancellation of
refugee status - confidentiality - use of documents seized by Police -
Immigration Act 1987, s 129T
Confidentiality -
cancellation of refugee status - use of documents seized by
Police - Immigration Act 1987, s 129T
Immigration Act -
confidentiality - application of s 129T to documents seized by Police -
Immigration Act 1987, s 129T
On his arrival in New Zealand in 1995, the appellant, born in Afghanistan, claimed and was granted recognition of status as a refugee. Five years later when his home was searched by Police they found documents inconsistent with the account he gave when claiming refugee status. In the High Court, Priestley J held that a refugee status officer was entitled to use those documents when determining whether the recognition decision was properly made and whether to withdraw the appellant's recognition as a refugee. That decision was challenged on appeal.
Held:
1. The various arguments in support of the appellant's contention all foundered on the basic point that the Police used the material in their possession for the proper purpose of discharging their function of upholding the law (see para [46]).Appeal dismissed
Cases mentioned in the judgment
Attorney General for United Kingdom v Wellington Newspapers [1988] 1 NZLR 129 (CA)Counsel
RJ Hooker for the
appellant
IC Carter and EJ Watt for
the respondents
[Editorial note: An application for
leave to appeal to the Supreme Court was dismissed in MA
v Attorney-General [2010] NZSC 33 (31 March 2010). The text of
that decision is provided on this website.]
Table of Contents
Legal context
Factual context
The decision of the High Court
Issues on appeal
Issue 1: the search warrant
Issue 2: Litigation privilege
Issue 3: Were the Police actions in passing on the
information to the
second respondent unlawful?
The
documents
The
appellant’s claim to privacy
Regulation
7
Breach
of confidence
The
interview
Conclusion
[1] On his arrival in New
Zealand in 1995, the appellant claimed and was granted recognition of
status as a refugee. Five years later when his home was searched by
Police they found documents inconsistent with the account he gave when
claiming refugee status. In the High Court, Priestley J held that a
refugee status officer was entitled to use those documents when
determining whether the recognition decision was properly made and
whether to withdraw the appellant’s recognition as a refugee. That
decision is challenged on appeal.
Legal context
[2] Refugee status is
conferred not by New Zealand law but by the Convention Relating to the
Status of Refugees (1951) 189 UNTS 150, as modified by the 1967
protocol (the Refugee Convention), to which New Zealand has acceded.
New Zealand domestic law, expressed in the Immigration Act 1987,
contains procedures for recognising status under the Refugee Convention
as a refugee and for withdrawing such recognition. The process of
recognition is by an applicant’s claim under s 129G to refugee status
and the determination of that status under s 129F by a refugee status
officer. It is likewise the function of a refugee status officer under
s 129L to determine whether the recognition decision was properly made
and, if not, to determine to cease the recognition. It will be apparent
that the determination finding a person is a refugee, carried out under
s 129F, is purely declaratory of that person’s position at
international law.
Factual
context
[3] The appellant was
born in Afghanistan. Upon his arrival in New Zealand, he claimed to
satisfy the definition of refugee in art 1A(2) of the Refugee
Convention:
that:
[4] He supported the application with a circumstantial account of the facts said to justify the claim which was then accepted by a refugee status officer.
[5] On each of 13 March and 19 April
2000 the Police performed a search, claimed to be under two separate
warrants, of his home. The operation involved as well the New Zealand
Immigration Service, the New Zealand Security Intelligence Service and
various foreign agencies including Australian law enforcement personnel.
[6] Among documents seized were:
[7] On the day of each search the appellant was interviewed. The second interview was recorded on video. Following analysis by the Police of the documents and the transcripts of interview, an information was laid against the appellant under s 229A of the Crimes Act 1961, alleging use of his application for refugee status with intent to defraud. He was committed for trial. Difficulties of proof and concern at public disquiet about the case following the events of 11 September 2001 led the Crown to elect to offer no evidence and on 5 November 2001 the appellant was discharged under s 347 of the Crimes Act.
[8] The Police then passed the
documents, transcripts of interview and analysis to the Refugee Status
Branch (RSB) of the New Zealand Immigration Service (NZIS).
[9] The appellant’s claim for
refugee status had asserted a well-grounded fear of persecution by the
Mujahideen, the Afghan resistance army. On 16 January 2006 the
appellant was served by the second respondent with a notice of intended
determination of revocation of refugee status which challenged the
truth of that claim. It recited the documents found in the search and
the grounds of the NZIS assessment that the appellant’s statements to
the RSB may have been false. They included:
The notice stated:
[10] That notice triggered the
present claim against the present respondents asserting, insofar as of
present relevance, that:
It sought declaratory
and injunctive relief.
The
decision of the High Court
[11] Although the
original warrant and any court file containing the documentation
leading to its issue were missing, on the unchallenged evidence of a
former senior sergeant of police Priestley J rejected the appellant’s
claim that no such documents existed. The Judge rejected the claim to
privilege. He further rejected the challenge to the police conduct in
handing the documents to NZIS. And he found there was no breach of
natural justice. He therefore dismissed the proceeding.
Issues on
appeal
[12] The parties agreed
that the issues are now:
Issue 1: the search
warrant
[13] The appellant
deposed that on 13 March 2000 the Police went to his home and gave him
a copy of the search warrant they said they had obtained from the Court
on 11 March. He said he had never seen the original and that a Deputy
Registrar of the Wellington District Court had made a thorough search
for the original of the application and any supporting evidence but had
been unable to locate such documents. He believed that no application
was made and no warrant issued.
[14] The Crown formally admitted that it did not have in its possession a duly signed search warrant and that an extensive search of the Wellington District Court files did not locate the search warrant application or evidence.
[15] Former Senior Sergeant Turley
filed an affidavit stating:
A photocopy of the
initial warrant was produced to the Court. He said further:
[16] Mr Turley deposed to obtaining the warrant and vouched for what occurred during the search. He was the witness who could have responded to questions about whether a warrant existed and if so what was its provenance. Because an invalid warrant may not be executed, it was necessarily implicit in his evidence that the warrant which was executed was valid. But he was not called for cross-examination.
[17] We agree with Priestley J that,
having declined to challenge the officer, Mr Hooker cannot now be
permitted to argue either that there was no warrant or that it had not
been issued by a Registrar. The Judge was quite right to hold that in
such circumstances a presumption of validity exists: R v Grayson and Taylor [1997] 1
NZLR 399 (CA). No question of onus of proof arises.
[18] We add that the statement of
claim pleads that a search was undertaken under the 11 March 2000
warrant, and even quotes it. That is admitted in the statement of
defence. Mr Hooker responded to this point by submitting that the
relevant paragraphs of the statement of claim relate only to the second
cause of action and not the first. But even in relation to the first
cause of action the pleading asserts that the police produced to the
appellant a document purporting to be a copy of a search warrant issued
in Wellington on 11 March 2000. The statement of defence admits that
the police executed a search warrant at the appellant’s home.
Issue 2: Litigation
privilege
[19] The appellant
claimed privilege for documents seized during the search. They included
a statement, which he said was prepared for the purpose of his claim
for refugee status. It contained on each page a statement that the
information was provided:
The Refugee Status
Section form contained the statement:
The appellant filed an affidavit of Ms Laurent, former Regional Co-ordinator of a non-governmental organisation called the “Refugee Status Office of the Refugee Status and Migrant Service Auckland”. Her practice was to assist claimants and to arrange for them to see lawyers, who would assist them in presenting their claims for refugee status. She described herself as “part of the confidentiality which applied” to preparation of a statement for presentation to the lawyer.
[20] It is necessary to distinguish
between the two sub-heads of legal professional privilege. It is not
clear from the appellant’s submissions the head under which he claimed
privilege. In Three Rivers District
Council v Governor and Company of the Bank of England (No 6)
[2005] 1 AC 610 at [105] (HL) Lord Carswell said:
Legal advice privilege attaches to information which passes between a lawyer and client for the purpose of giving and receiving legal advice. It is available only in relation to legal advice given by a lawyer, for the reasons given by the Law Commission in its report Evidence Volume 1: Reform of the Law (NZLC R55 1999) at [252]-[254] and by the Chief Justice in Auckland District Law Society v B [2002] 1 NZLR 721 at [1] (CA), upheld by the Privy Council on appeal in B v Auckland District Law Society [2004] 1 NZLR 326. Since the point is not essential to our decision it is unnecessary to develop it. We are prepared to assume, without deciding, that such intermediary involvement so constituted Ms Laurent as the appellant’s agent to communicate with his legal advisor as was sufficient to attract legal advice privilege for the statement.
[21] Litigation privilege on the other hand attaches to communications between a client or the client’s lawyer and a third party for the purposes of litigation, actual or anticipated (see Thanki The Law of Privilege (2006) at [1.08] for a discussion of the differences between the two sub-heads of legal professional privilege). Since none of the seized material was prepared in anticipation of litigation, litigation privilege cannot apply.
[22] The appellant’s primary
argument on what appeared to be a legal
advice privilege point was based on the common law because the search
occurred
in 2000, before the Evidence Act 2006 came into force on 1 August 2007.
But the
common law affords no protection if the defence of iniquity is made
out. It
was stated by McMullin J in Attorney
General for United Kingdom v Wellington
Newspapers [1988] 1 NZLR 129 at 178 (CA):
[23] In Woolgar v Chief Constable of the Sussex Police [1999] 3 All ER 604 and Frankson v Home Office [2003] 1 WLR 1952 the English Court of Appeal held that the expectation of confidence that attaches to police interviews may be outweighed by a higher public interest. The Supreme Court in Attorney-General v X [2008] 2 NZLR 579 held that New Zealand’s ability to give effect to the Refugee Convention would be compromised if the Immigration Act were interpreted as preventing disclosure to officials considering extradition or prosecution. That decision applies a fortiori in an iniquity case.
[24] The appellant’s position,
whether litigation or legal advice
privilege is claimed, is no better if the case is considered under the
Evidence Act,
the relevant sections of which state:
[25] Section 7 of the Interpretation
Act 1999 states that an enactment
does not have retrospective effect. Nothing in the Evidence Act
suggests that ss
54 and 56 would operate retrospectively. While procedural rights may
more easily
be held to be altered retrospectively we prefer the approach that
entitlement to
legal privilege is a substantive entitlement to which such approach
does not apply: see
Burrows and Carter Statute Law in
New Zealand (4ed 2009) at 594-596. Insofar as
there was any
advantage to the appellant under the common law, ss 54 and 56 would not
be construed as having retroactive effect to remove it.
[26] But the Law Commission did not
suggest that it was proposing to
change rather than codify the common law. The iniquity exception
applies to
each. The Evidence Act states:
[27] There was raised the
interesting question whether this Court
should adopt the conclusion of the Supreme Court of Canada that
litigation privilege is
ephemeral and
terminates with the conclusion of the case: see Blank v Canada [2006] 2
SCR 319. But we do not reach the stage of considering it. That is
because of the
iniquity
exception.
[28] Insofar as the appellant included false information in the statement made to Ms Laurent, and the statement was made for the dishonest purpose of obtaining refugee status by deceit, any privilege is excluded by both the common law and the plain language of s 67(1). Insofar as materials taken under the warrant embraced documents not prepared for that purpose we see no basis for any claim to litigation privilege.
Issue 3: Were the
Police actions in
passing on the information to the
second respondent unlawful?
[29] The issue concerns
the extent of the police authority to use
copies of original documents obtained under warrant for purposes other
than those for
which the warrant was obtained. No complaint is made about the actual
seized
documents which the Crown says were returned to the appellant. The
issue concerns
the copies made by the police and the interview. We consider them in
turn.
The documents
[30] Mr Turley provided
to NZIS copies of the documents obtained under
search warrants and also the transcript of his video interview of the
appellant. His investigation had shown that in his view the appellant
had lied in his
application form and acquired refugee status by fraud. Mr Turley was
aware that
NZIS could take steps to cancel refugee status and said his reason was
to enable
NZIS to take whatever action it deemed appropriate in relation to the
appellant’s
refugee status.
Section 199 of the
Summary Proceedings Act 1957 states:
[31] The section provides what is to
happen to the things seized. With
certain exceptions irrelevant to the present case, things seized are to
be
retained by a constable except while being used in evidence or in the
custody of a
court until either returned to the person from whom they were seized or
disposed of by
court order. In its 2007 report Search
and Surveillance Powers (NZLC R97 2007) the Law Commission has
proposed more specific statutory directions
concerning the things seized. It recommended at [13.39]-[13.40]:
[32] We accept the Crown’s submission that the section is concerned only with the actual documents seized. That includes both original documents and any copy documents which were themselves taken under warrant. It does not deal with copies of what had been seized.
[33] That topic was also discussed
by the Law Commission at
[13.71]-[13.74]:
[34] The Crown advances the
following practical considerations that:
The appellant’s
claim to privacy
[35] Although the appellant has not made a complaint under the
Privacy
Act 1993, he submits that retention by the police of copies of letters
and a
diary, as well as drivers licences which have a lower sensitivity,
infringes his rights
to privacy. These he submits are protected by reg 7 of the Police
Regulations 1992, which
states:
[36] Also of relevance are the Privacy Act and the equitable doctrine of breach of confidence.
Regulation 7
[37] The starting point
is the nature of the “duty” of the Police under
Regulation 7. The Oath to be taken by a constable under s 37 of the
Police Act 1958
included the
undertaking:
Its current form under
s 22 of the Policing Act 2008 is:
Section 9 of the
Policing Act now states:
[38] The function of law
enforcement, now explicit, has always been
implicit in the role of the Police. In R v Commissioner of Police of the
Metropolis, ex parte Blackburn (No1) [1968] 2 QB 118 at 147 (CA)
Salmon LJ said:
Edmund Davies LJ said
at 148-149:
[39] The law enforcement function of the Police has also been recognised in R v Ngan [2008] 2 NZLR 48 at [31] (SC); Gough v Chief Constable of the West Midlands Police [2004] EWCA Civ 260 at [35]; Hill v Chief Constable of West Yorkshire [1988] QB 60 (CA), upheld by the House of Lords: [1989] AC 53; R v Decorte [2005] 1 SCR 133; Putnam v Alberta [1981] 2 SCR 267; Westwood v Lightly (1984) 2 FCR 41 (FCA). There can be no doubt that it was embraced in their “duty” in terms of regulation 7 under the 1958 Act as under the 2008 Act. Enforcement of the Immigration Act falls squarely within that authority.
[40] Further, in R(A) v Chief Constable of C [2004]
1 WLR 461 (HC),
complaints related to sexual offending were made to the Police in
counties B and C
about A, a school teacher. No charges were laid. A applied for and was
offered a
job in a county D. The Police in county C passed the information on to
the
county D Police, who subsequently passed it on to the education
authority in that
county. As a result, A’s job offer was withdrawn. A sought judicial
review of the decision
of the Police in counties C and D to pass on the information. Turner J
declined the
application. He held that the Police actions had not breached either of
the United
Kingdom Data Protection Acts. Nor did a breach of a government circular
on
confidential information entail irrationality. Turner J acknowledged
that (at [43]):
He held that (at [39]):
As to the disclosure to
the education authority, he said (at [41]):
[41] In the present case, the
passing of the information obtained as a
result of the search to those responsible for the administration of the
refugee
status system was in
accordance with the law enforcement function of the Police. That being
the case, the Police were required to release the information in
carrying out their
duty of law
enforcement. So the exception to the reg 7(1) secrecy requirement set
out in reg 7(2)(d) applied.
[42] The Crown submitted that the
disclosure of the information to the
second respondent is permitted under reg 7(2)(a) because disclosure is
permitted under the exceptions to the Privacy Principles stated in the
Privacy Act. The
Privacy Principles include:
Plainly the Privacy Principles are not absolute and are subject to limits. We accept the Crown’s submission on this point that the disclosure of the information by the Police to the second respondent was permitted by Principle 11(e)(i).
[43] Equity will
restrain the disclosure of information where to do so
would be a breach of confidence. The test is that set out by Megarry J
in Coco v A
N Clark (Engineers) Ltd [1969] RPC 41 at 47 (Ch D):
The Crown submits that
the information at issue does not “have the
necessary quality of confidence about it”. Although this is undoubtedly
true of
information such as the
drivers licences, that is not necessarily the case with all the
information. The letters, for example, may contain confidential
information. As to the second
element, information seized under a search warrant may have been
“imparted in circumstances importing an obligation of confidence”: Stepping Stones
Nursery v Attorney-General [2002] 3 NZLR 414 (HC). It is likely
also that
unauthorised use could operate to the appellant’s detriment. But it is
unnecessary for
us to consider the test in detail. The public interest defence or
“iniquity rule”
allows disclosure of the information to the second respondent: Westpac Banking Corporation v
John Fairfax Group Pty Ltd (1991) 19 IPR 513 (NSWSC); see Woolgar v Chief
Constable [1999] 3 All ER 604 (CA) discussing of the
circumstances in which
disclosure to another government body or public authority will be
permitted. There is
an overriding public interest in the enforcement of the law and the
maintenance of the integrity of New Zealand’s refugee status system.
The interview
[44] In Television New Zealand Ltd v Rogers
[2008] 2 NZLR 277 the
Supreme Court considered and rejected an argument similar to that of
the
appellant concerning the use to which a law enforcement interview can
be put.
[45] We reject the present argument for similar reasons.
Conclusion
[46] The various
arguments in support of the appellant’s contention all
founder on the basic point that the Police used the material in their
possession
for the proper purpose of discharging their function of upholding the
law.
[47] The appeal fails and is
dismissed. Since we are unaware of the
appellant’s legal aid status we will receive memoranda as to costs.
Solicitors for the
appellant: Vallant Hooker & Partners (Auckland)
Solicitors for the
respondents:
Crown Law Office (Wellington)