S v POLICE [2017] NZHC 1060

S v POLICE [2017] NZHC 1060

The Court struck out all of S's claims as clearly untenable because the warrant was facially valid, no jurisdictional or fundamental defect was pleaded or evidenced, bad faith allegations were speculative without particulars, and judicial review is not the correct forum to litigate non-fundamental challenges to searches in the context of active criminal proceedings. D's claim for arbitrary detention was not clearly untenable and may proceed if properly pleaded confined to that cause of action; most seized documents were ordered released to Police while a small subset potentially attracting privilege were transferred to the District Court for determination in the criminal proceedings.

Citation
[2017] NZHC 1060
Parties
First Plaintiff: S; Second Plaintiff: CQ; Third Plaintiff: D; First Defendant: New Zealand Police; Second Defendant: District Court at Auckland
Court
High Court
Jurisdiction
New Zealand
Judgment Date
19 May 2017
Procedural Posture
Application for Judicial Review Arising From Execution of Search Warrant / Strike Out Application Heard; Judgment on Strike Out and Directions Issued
Outcome
Strike-out granted in relation to First Plaintiff (S); strike-out dismissed in relation to Third Plaintiff (D) who must re-plead confined to arbitrary detention; Second Plaintiff (CQ) has no independent cause of action; selective release and transfer of seized documents ordered; costs reserved
Legal Topics
Search Warrant Validity, Execution of Warrants, Unreasonable Search and Seizure, Arbitrary Detention, Legal Professional Privilege, Baigent/public Law Damages, Abuse of Process, Strike Out Procedure
Criminal Law Public Law / Judicial Review Search and Seizure Law Evidence Law Human Rights Law Civil Procedure Search Warrant Validity Execution of Warrants +6 more

Case Brief

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Parties

S

First Plaintiff

CQ

Second Plaintiff

D

Third Plaintiff

New Zealand Police

First Defendant

District Court at Auckland

Second Defendant

Procedural Posture

Application for Judicial Review Arising From Execution of Search Warrant / Strike Out Application Heard; Judgment on Strike Out and Directions Issued

Legal Issues

  1. 1 Whether the search warrant was invalid or infected by jurisdictional or fundamental error
  2. 2 Whether execution of the warrant breached s 143 Search and Surveillance Act 2012 or s 21 NZBORA (unreasonable search and seizure)
  3. 3 Whether D was arbitrarily detained in breach of s 22 NZBORA and s 118 Search and Surveillance Act 2012

Ratio Decidendi

The Court struck out all of S's claims as clearly untenable because the warrant was facially valid, no jurisdictional or fundamental defect was pleaded or evidenced, bad faith allegations were speculative without particulars, and judicial review is not the correct forum to litigate non-fundamental challenges to searches in the context of active criminal proceedings. D's claim for arbitrary detention was not clearly untenable and may proceed if properly pleaded confined to that cause of action; most seized documents were ordered released to Police while a small subset potentially attracting privilege were transferred to the District Court for determination in the criminal proceedings.

Court Disposition

Strike-out granted in relation to First Plaintiff (S); strike-out dismissed in relation to Third Plaintiff (D) who must re-plead confined to arbitrary detention; Second Plaintiff (CQ) has no independent cause of action; selective release and transfer of seized documents ordered; costs reserved

Orders

  • Strike out application in relation to First Plaintiff (S) granted and all of S's claims struck out
  • Strike out application in relation to Third Plaintiff (D) dismissed; D must file and serve an amended statement of claim by 31 May 2017 confined to a cause of action for arbitrary detention and containing an address for service