SOUTHERN STORM FISHING (2007) LIMITED v THE DIRECTOR GENERAL OF THE MINISTRY FOR PRIMARY INDUSTRIES [2014] NZHC 3087

SOUTHERN STORM FISHING (2007) LIMITED v THE DIRECTOR GENERAL OF THE MINISTRY FOR PRIMARY INDUSTRIES [2014] NZHC 3087 [28 November 2014]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYCIV 2014-409-000846[2014] NZHC 3087BETWEEN SOUTHERN STORM FISHING (2007)LIMITEDApplicantAND THE DIRECTOR GENERAL OF THEMINISTRY FOR PRIMARYINDUSTRIESRespondentHearing: 28 November 2014Counsel: R B Squire QC and K van Wijngaarden for ApplicantC J Lange and G Fletcher for RespondentJudgment: 28 November 2014JUDGMENT OF WHATA J[1] In 2011 electronic copies of computer records belonging to Southern Storm Fishing (2007) Limited (Southern Storm) were taken by the Ministry of Fisheries1(Ministry) for the purposes of a statutory prosecution under the Fisheries Act 1996. A challenge to the seizure of the records failed. Five officers of the Oyang 75 were subsequently convicted. Southern Storm contends, in short, that the criminal proceedings having concluded, that the Ministry is therefore obliged to either return or destroy the cloned material. The Ministry does not agree. Southern Storm has commenced judicial review proceedings claiming that the Ministry is required by statute to return or otherwise dispose of the cloned material. The matter comes before me by way of interim application for relief preventing the Ministry from undertaking a further search of the cloned material pending determination of the substantive claim.1 Now under the auspices of the respondent, the Director-General of the Ministry for Primary Industries.[2] I have come to the view that the central issue is whether Southern Storm havean arguable case that the Ministry's power to retain the seized information hasexpired. If so, then I consider that the principle of legality, overlaid by ss 21 and 25 of the New Zealand Bill of Rights Act 1990 (NZBORA) implore that Southern Storm be afforded an opportunity to argue the substantive proceedings before their information is searched by the Ministry.Background[3] The immediate background to this application is uncontentious. In 2011 the Ministry commenced an investigation into the activities of Oyang 75, a fishing vessel owned and controlled by Southern Storm. A search was undertaken ofSouthern Storm's premises pursuant to ss 199 and 207 of the Fisheries Act. As part of that search four computers were seized. Forensic copies of the information contained in those computers were then undertaken. I gather that a review of the material seized resulted in commencement of prosecutions against five of the officers of the vessel. A District Court Judge found the charges proved by way of formal proof. The last of the defendants was sentenced on 4 November 2014.[4] In December 2011 the Ministry commenced a further investigation into the fishing activities of the Oyang 77, another vessel under the management of Southern Storm. This investigation resulted in the captain and factory manager of the Oyang 77 being charged with various offences, including discarding of squid between 24 February 2011 and 22 March 2011, discarding of hoki between 25 June 2011 and 27 July 2011, and associated charges of failing to record the discarded fish and the returns required by the Act. The captain was sentenced on 3 September 2011.[5] That relatively short narrative belies the tensions between the parties. In November 2012 Southern Storm sought judicial review of the search and seizure just mentioned. It was claimed that the search was unlawful on the basis that the search went well beyond anything that could relate to the fishing activities of the Oyang 75. The Court found that Southern Storm had not demonstrated a clear case of unlawfulness of the kind which should properly be entertained at that particular stage of an investigation by way of judicial review. The Judge did not consider that theconcerns about search of privileged material provided a sufficient basis for intervention, relying on the majority decision of the Court of Appeal inChief Executive of the Ministry of Fisheries v United Fisheries Ltd2 to the effect that while a glance at a privileged document might infringe the privilege that in itself does not make the search unlawful or unreasonable.3 The Judge observed that whether the Ministry should have a different system for protecting privilege goes to the reasonableness of the search and that there is no true unlawfulness of the kind envisaged by the Court of Appeal in Gill4 that might justify judicial review.[6] Meanwhile the sentencing of the defendants was delayed while Southern Storm sought leave to appear in relation to the forfeiture of the vessels by way of judicial review. Southern Storm argued that as innocent owner or manager of the vessels they should have a right to be heard on the issue of special reasons not to forfeit the vessels under s 255 of the Fisheries Act. Momentary success in the High Court5 was soon overtaken by a negative answer from the Court of Appeal.6Leave to appeal to the Supreme Court was declined.7[7] Most recently Southern Storm has made an application under s 256 of the Fisheries Act for relief from forfeiture and a hearing is due in the District Court in February 2015.The purpose and scope of the search[8] Given its central importance, I outline the purpose and scope of the search asexpressed by the Ministry's briefing document, titled Operation Giro. The searchmission is described as below:4 MissionTo gather evidence of offending against the Fisheries Act 1996 in relation to the fishing activities of the FV OYANG 75 including the alleged dumping of fish and any subsequent misreporting by persons onboard the FV OYANG2 Chief Executive of the Ministry of Fisheries v United Fisheries Ltd [2010] NZCA 356, [2011] NZAR 54.3 At [67] and [81].4 Gill v Attorney-General [2010] NZCA 468, [2011] 1 NZLR 433.5 Sajo Oyang Corp v Ministry for Primary Industries [2013] NZHC 161.6 Ministry for Primary Industries v Sajo Oyang Corp [2014] NZCA 46, [2011] 2 NZLR 673.7 Sajo Oyang Corp v Ministry for Primary Industries [2014] NZSC 73.75 and its permit holder Southern Storm (2007) Ltd for the period March 2011 to June 2011.[9] The tasks are the listed in these terms:Tasks: Search offices for all pertinent documents relating to this investigation. This includes:- any documents relating to the fishing activities of the FV OYANG 75 and in particular March 2011 to present but including documents created before this period.- any documents constituting an agreement in relation to parties involved in the fishing activities of the FV OYANG 75;- any communications between parties involving in the fishing activities of the FV OYANG 75;- documents relating to compliance with Fisheries ActLegislative scheme[10] The parties do not agree as to the directly applicable statutory scheme. Southern Storm contends that the seizure of the forensic copies is now subject to s 161 of the Search and Surveillance Act 2012 (SAS Act). By contrast, the Ministry submits that the relevant search and seizure provisions under the Fisheries Act 1996 still apply given the transitional provisions of the SAS Act.[11] I will briefly outline both schemes for the purposes of my assessment.Fisheries Act[12] The power to undertake a search without a warrant is provided by s 199 which stated:199 Powers of entry and search(1) In the course of the enforcement and administration of this Act, a fishery officer may, at any reasonable time,—(a) Stop, enter, or pass across any land in order to enter and examine any vessel or vehicle, or enter and examine any premises or place, or examine any record, document, article, and any gear, apparatus, device, or contents of any kind therein:(b) Stop any person and examine any record, document, article, container, gear, apparatus, device, fish, aquatic life, or seaweed in the possession of that person.(2) If a fishery officer believes, on reasonable grounds,—(a) That an offence is being or has been committed against this Act; and(b) That—(i) Any fish, aquatic life, or seaweed taken or thing used or intended to be used in contravention of this Act; or(ii) Any record or information required by or under this Act to be kept, completed, or provided; or(iii) Any article, record, document, or thing which there is reasonable ground to believe will be evidence as to the commission of an offence against this Act,—may be concealed or located or held in any vessel, vehicle, conveyance of any kind, premises, place, parcel, package, record, or thing—then, for the purpose of the enforcement of this Act, that officer may at any reasonable time enter or pass across any land in order to enter, examine, and search any such premises or place, or any such vessel, vehicle, or conveyance of any kind (by stopping or opening where necessary), and may examine and search (by stopping or opening where necessary) any such parcel, package, record, or thing.(3) A fishery officer may detain any vessel, vehicle, conveyance of any kind, parcel, package, record, document, article, gear, apparatus, device, container, fish, aquatic life, seaweed, or thing for such period as is reasonably necessary to enable the fishery officer to carry out an examination or search under this section.[13] The power to take copies was then conferred by s 206 as follows:206 Power to take copies of documents(1) In exercising powers under this Act, a fishery officer may—(a) Make or take copies of any record or document, and for this purpose may take possession of and remove from the place where they are kept any such record or document, for such period of time as is reasonable in the circumstances:(b) If necessary, require a person to reproduce, or assist the fishery officer to reproduce, in a useable form, information recorded or stored in a document.(2) Any documents to which section 198A of the Summary Proceedings Act 1957 applies that are copied by a fishery officer under this section shall be dealt with in accordance with section 198A of that Act, and the provisions of that section, with any necessary modifications, shall apply accordingly.[14] A related power to seize documents was then provided by s 207:207 Powers of seizure(1) A fishery officer may seize—(c) Any article, record, document, or thing which he or she believes on reasonable grounds is evidence of the commission of an offence against this Act.(2) Any property seized under subsection (1) of this section shall be delivered into the custody of the chief executive.(3) Any documents to which section 198A of the Summary Proceedings Act 1957 applies that are seized by a fishery officer under this section shall be dealt with in accordance with section 198A of that Act, and the provisions of that section, with any necessary modifications, shall apply accordingly.(4) The decision whether to lay any information or charge for an alleged offence in respect of which any property is seized under subsection (1) of this section shall be made as soon as reasonably practicable after the property is seized.[15] Relevantly, charges under the Fisheries Act had to be brought within two years of the alleged offending.8[16] It will be seen that a condition of the entry, search and then seizure of private property is that the Fisheries Officers must believe on reasonable grounds that an offence has been committed against the Act and that the relevant item subject to the search and then seizure is evidence of a commission of an offence against the Act. It does not appear that the Act provides a mechanism for the return of seized property. There is, however, a provision that any property seized may be released by the Court on application. Relevantly s 210(2) of the Fisheries Act stated:8 Fisheries Act 1996, s 236(2)(b).210 Crown to release seized property in certain circumstances(2) If any information or charge has been laid for any alleged offence in respect of which the property was seized under section 207 of this Act and that property, or the proceeds from the sale of such property under section 212 of this Act, remains in the custody of the Crown, the Court may at any time release the property or proceeds, on application by—(a) The person from whom the property was seized; or(b) The owner or person entitled to the possession of the property seized;—and any such release may be subject to such sureties and conditions as the Court may specify.The Search and Surveillance Act[17] Section 250 of the SAS Act substituted s 207(2) and (4) with sub-parts 1, 5, 6 ,7 ,9 and 10 of part 4 of the SAS Act. Part 4 sub-part 6 of that Act includes s 161 which provides:161 Disposal of forensic copies(1) A person who makes a forensic copy of any data held in a computer system or other data storage device must, if he or she determines that the data does not contain any evidential material, ensure that the forensic copy and any copies made from that copy are deleted, erased, or otherwise destroyed in a way that prevents retrieval of the copy or copies by any method.(2) However, if an examination of the data shows that it contains a mixture of data that is evidential material and data that is not evidential material,—(a) the forensic copy of the data and any copies made of that copy may be retained in their entirety; and(b) that forensic copy and any copies made of that copy may continue to be searched, if such a search was authorised by the search power under which the data was seized and copied.[18] On its face s 161 imposes an obligation on the relevant authority to delete orotherwise destroy data that does not contain any "evidential material". Data may,however, be retained if it contains a mixture of data that is evidential material and not evidential material. I come to the significance of this below.[19] Section 162 then provides:162 Other copies and generated material may be retained(1) Any thing made or generated by a person exercising a search or surveillance power (for example, photographs or audio or video recordings or copies of things) may be retained as part of the permanent records of the employer of the person who exercises the search or surveillance power.(2) Subsection (1) is subject to sections 63 and 136, and any other enactment or rule of law.[20] Section 351 deals with transitional provisions. It states:351 Transitional provision relating to provisions brought into force under section 2(1) Despite any amendment in Part 5 of this Act,—(a) where an application has been made under an authorising Act before the relevant commencement, and the application is not finally determined before that date, the provisions of that Act continue to apply to the application and to any matter or obligation relating to the application in all respects as if this Act (other than this section and any provisions in force immediately before the relevant commencement) had not been enacted; and(b) those provisions continue to apply to a continuing warrant and to any matter relating to the warrant in all respects as if this Act (other than this section and any provisions in force immediately before the relevant commencement) had not been enacted; and(c) those provisions continue to apply to any other proceeding, matter, or thing commenced and not completed before the relevant commencement as if this Act (other than this section and any provisions in force immediately before the relevant commencement) had not been enacted.Jurisdiction[21] This is an application for an interim order under s 8 of the Judicature Amendment Act 1972. The relevant test for interim relief is well settled namely, I must be satisfied that the order is reasonably necessary to preserve the position of the applicant. If so, I have a wide discretion to consider the circumstances of the caseincluding the apparent strengths and weaknesses of the applicant's claim for reviewand the repercussions of it.Necessary?[22] The right to be secure from unreasonable search and seizure, whether of a person, property, correspondence or otherwise is affirmed by s 21 of the NZBORA and has the same conceptual genesis as the rights affirmed in Entick v Carrington9 –that is the right of personal security, personal liberty and private property.10 The proposed search of the cloned information, if unlawful, would plainly derogate from these rights. Prima facie, interim relief is necessary to preserve them.[23] Furthermore, I understand from Mr Lange that the Ministry wishes to inspect the cloned information for the purposes of the upcoming relief from forfeiture proceedings. To my mind, if the underlying activity is unlawful, an interim order is plainly necessary, to preserve both the integrity of rights just mentioned, but also to preserve their position on these proceedings. Notably, unlike the situation in Gill,11it cannot be assumed that the District Court may exclude unlawfully obtained information under the auspices of s 30 of the Evidence Act. Mr Lange accepted that s 30 applied only to improperly obtained evidence in criminal proceedings.[24] While the application for forfeiture forms part of the enforcement provisions of the Fisheries Act, it is clearly arguable that it does not fall within the natural meaning of criminal proceedings, though I accept that forfeiture is a criminal sanction and in which case, read liberally, should be available to the applicants. It may also be that the District Court may enjoy collateral jurisdiction to assess thelegality of the Ministry's use of the private information and refuse to admit it. But that is not entirely clear to me. This ambiguity I think then brings into play s 25 of the NZBOR Act, and the right to natural justice. The capacity to vindicate a fundamental right should not be ambiguous. This further supports the grant of reliefif there is an arguable case that the Ministry's ongoing power to search privateinformation has expired.9 Entick v Carrington (1765) 2 Wils 275, 95 ER 807 (KB).10 For a statement of the linkage see – Boyd v United States of America 116 US 616 (1886).11 Gill, above n 4.Overall balance of considerations[25] The primary focus of argument was whether or not Southern Storm has an arguable case in terms of the grant of relief by way of judicial review. The central contention made by Mr Squires QC is that if a forensic copy of data to which s 161 of the SAS Act applies does not contain evidential material as defined (ie evidence of an offence or suspected offence or item of relevance to the investigation of an offence), the section requires the person who made the copy to delete, erase or otherwise destroy it in a way that prevents its retrieval.[26] He further submits that as all charges brought against those charged with offences arising out of the investigation in 2011 have been completed, and further charges arising from the investigation are proscribed by the limitation imposed by s 236(2)(b) of the Fisheries Act, that the material is no longer "evidential material"as defined.[27] Mr Lange responds that as the enforcement proceedings leading to automatic forfeiture commenced under the pre SAS Act regime, they are governed by the transitional provisions and should be dealt with under the old regime, and he notes there is no provision for release of copied information under the old regime. He may well be correct. The Ministry searched and obtained the seized material under the Fisheries Act (pre SAS Act). Those procedures specifically contemplate that the powers are exercised for "the purpose of enforcement of this Act".[28] Automatic forfeiture arises on a successful prosecution pursuant to theFisheries Act's enforcement procedures. Any applications for relief from forfeitureare dealt with under the same part of the Act. A logical consequence of this, is that search and seizure, prosecution, forfeiture and relief from forfeiture form part of a continuum of enforcement under the Fisheries Act (that is pre the SAS Act). This is reinforced by the following statement by the Court of Appeal in Ministry for Primary Industries v Sajo Oyang Corp:1212 Ministry for Primary Industries v Sajo Oyang Corp [2014] NZCA 46, [2014] 2 NZLR 673.[17] Section 256(14) states that any forfeiture under this part of the 1996 Act shall be in addition to, and not in substitution for, any other penalty that may be imposed by the court or by the Act. This indicates a statutory intention that the forfeiture provisions of the Act are intended to be part of other penalties imposed for fisheries offences but are to be treated as additional to other penalties.[29] But it appears to me to be at least arguable, as Mr Squire submitted, that as the application for relief from forfeiture commenced in September and November 2014, then the SAS Act provisions apply in terms of the basis for holding seized information. If correct, the purpose of the search and seizure resulted in prosecutions that have now concluded. It would seem therefore that to the extent that the seized material is now relied upon, it is in relation to fresh proceedings and therefore amenable to the jurisdiction of the SAS Act and in particular s 161.[30] This then brings into focus whether the seized material remains "evidential material" for search purposes after the prosecution concluded. It needs to be recalled that the forensic copy of the material may only be searched "if such a search wasauthorised by the search power under which the data was seized and copied." The material was seized, as stated in the Ministry's briefing:To gather evidence of offending against the Fisheries Act 1996 in relation to the fishing activities of the FV OYANG including the dumping of fish and any subsequent misreporting by persons onboard the FV OYANG and its permit holder Southern Storm (2007) Ltd for the period March 2011 to June 2011[31] There is now no prospect whatsoever of a prosecution under the Fisheries Act 1996, of Southern Storm given the limitation period for such actions has expired. On its face therefore, it is arguably not permissible to search the material because the application for relief is not about the offending, but rather whether a presumptively innocent third party should be entitled to retrieve what is their property.[32] All of this must be overlaid with the directions given by the NZBORA that the powers conferred by Parliament that purport to derogate from fundamental rights, including those affirmed by s 21, must be applied and interpreted where possible, consistently with the affirmation of those rights. It must then be arguable that the power to search material seized for a particular purpose under the Fisheries Act should be read restrictively so as to minimise intrusion into Southern Storm'sprivacy rights, while still achieving the originating purpose of the authorised search, namely the successful prosecution of the persons charged. In this case, Southern Storm was not charged and cannot now be charged under the Fisheries Act and so is presumptively now outside the reach of the authorised search. While the Ministry cogently contends that the forfeiture of the ships falls within the overall enforcement procedures of the Fisheries Act, it not a matter to be determined definitely by way of an application for interim relief.[33] I acknowledge that the Court of Appeal in A v Attorney-General13 stated that the police were entitled to pass on information obtained as a result of a search for the proper purpose of discharging their proper function of upholding the law. But this conclusion is arguably not apposite to the present case. First, A v Attorney-Generalwas not concerned with the interpretation of s 161 of the SAS Act and whether the Ministry is using the information properly, in terms of s 161, to discharge its functions is one of the key issues. Second, there is no evidence before me at least, that the cloned material will reveal that Southern Storm has committed an actionable offence. So it is too early to say that the search will serve a proper enforcement purpose – other than perhaps the objective of avoiding relief from forfeiture. Circular reasoning of this type is a weak response to the principle of legality in issue in these proceedings.[34] It is also worth noting that if Mr Lange is correct and the previous fisheries legislation applies then there would appear to be a lacuna in the law insofar as concerns the protection of private property that has been cloned by a third person. I accept for present purposes that the power of this Court to require the return of property applies only to the property seized and not cloned property.14 It wouldseem to me therefore at least arguable that if the Ministry's reason for seizing the material is at an end, it has no ongoing lawful basis to retain the material if it is no longer needed it in terms of the purpose for which it was obtained.13 A v Attorney-General [2009] NZCA 490.14 At [32], in which case the equivalent phrase used in s 199 of the Summary Proceedings Act 1957 was held not to apply to copies of material.[35] I am therefore satisfied that there is at least an arguable case that lawful basis for retaining the cloned material has expired and, prima facie, Southern Storm as the owner of the source material is entitled to its return or its destruction.[36] For completeness, I am also cognisant of the fact that the Ministry wishes to retain the material for the purposes of further investigation. This raises further complex questions as to whether the Ministry is empowered to retain information for purposes that may not have been in contemplation at the time of the seizure. This argument has not been explored before me in any depth but it must be arguable that if the grounds upon which the information was seized no longer persist that theMinistry's lawful authority to retain the cloned material has come to an end.[37] The second primary objection to these proceedings is that judicial review isnot the appropriate forum for contesting the legality of the Ministry's use of seizedmaterial. That issue was thoroughly canvassed by Mallon J in the earlier Southern Storm proceedings.15[38] I consider, however, that the challenge here is not dealing with the scope of the search and seizure or the privileged content of the material. Rather, it addresseswhether the source of the Ministry's power to hold on to and search the clonedmaterial has expired. It appears to me arguable that this is a challenge to the underlying condition of legality that would ordinarily be amenable to judicial review. In short, the issue to be ventilated before the High Court is whether a condition precedent to the ongoing retention of the material is satisfied. If it is not satisfied, then the issue is not one of admissibility but of the legality of the possession of the material at all. I am not prepared to say that this issue should be pre-emptively resolved in the context of an interim application. Furthermore as foreshadowed above, it is not clear that s 30 has any application in the present context. It is in itself an issue requiring resolution. It cannot at this stage provide a proper basis for refusing Southern Storm the opportunity to vindicate its prima facie right to be free from unreasonable search and seizure.15 Southern Storm (2007) Ltd v Chief Executive, Ministry of Fisheries [2013] NZHC 117.[39] As to the broader public interest, there can be no harm provided that the Ministry retains the material. While there may be some delay pending the resolution of the substantive proceedings, in reality the material has been in the hands of the Ministry for at least three years and a further short delay to a substantive hearing is of minimal significance in that context.Result[40] Given the foregoing, I consider that there is an arguable case that theMinistry's power to retain the seized material has expired. That then gives rise to achallenge to the underlying legality of the retention and may be amenable to judicial review. There being no obvious wider public harm, I grant an interim order preventing the Ministry from ongoing inspection of the material pending the resolution of the substantive proceedings.Solicitors:Oceanlaw New Zealand, NelsonRaymond Donnelly & Co, Christchurch