Court decision puts Hager back in frame

NZ Herald | 28 Oct 2015

Ruling that hacked files used for book are property means charges possible

Dirty Politics author Nicky Hager may face criminal charges over accepting the hacked material used to write the bombshell book, according to documents obtained by the Herald.

Police will not say whether the investigative journalist is again a suspect, instead of simply a witness, after a pivotal Supreme Court decision which ruled computer files were property.

Documents show the new definition from the court puts Hager back in the frame over the computer files he was given by a hacker which he used as the basis for his book.

An Official Information Act response to Hager’s lawyers in June saw police lawyer Carolyn Richardson explain there had been a decision – apparently just before the journalist’s house was searched – to treat him as an “unco-operative witness as opposed to a suspect”. It was based on legal advice over an earlier Court of Appeal decision which said computer files weren’t property, she said.

But she said his status could change depending on the Supreme Court’s view of computer files as property. “It may be that the judgment will have some bearing on whether or not [Hager] has himself committed an offence as well as Rawshark.”

The letter supports an affidavit from Detective Inspector Dave Lynch, quoted in submissions from Hager’s lawyers in a current court challenge over a search warrant executed on his home. It described the lead officer in the Rawshark inquiry as holding the same views, with Hager’s lawyer saying it “suggests Mr Hager may yet be charged depending on the outcome” of the Supreme Court decision.

Crown submissions stated Hager was a witness but “had it become apparent that he had committed an offence, then of course consideration would have had to have been given to charging him”.

Otago University law professor Andrew Geddis said the Supreme Court decision was focused on one small part of the Crimes Act. But he said the logic behind the court’s decision would likely “follow through” to the way the courts handled other parts of the law – including receiving stolen goods.

“Rawshark will have obtained property in breach of [the law]. If Rawshark obtained property it’s hard to see those files are not still property when they get passed on to Mr Hager.”

Any shift in Hager’s status as a suspect or a witness could also impact the decision on his High Court challenge to the search warrant executed on his home in October 2014. Hager’s lawyers had insisted there was a higher hurdle to get a search warrant against somebody who was a witness – as Hager was on the day of the search – than for a suspect.

Hager was a “suspect” at the time detectives sought bank records from Westpac without a legal order, police said yesterday.

A police spokeswoman said the bank could do so under a “letter of agreement” with the NZ Bankers’ Association. There is nothing in the letter of agreement which deals with the Privacy Act, customers’ information or disclosing personal details to police.

Meanwhile, Westpac yesterday announced it had changed its internal policy for handing over customer information to police without a legal order – but has not said how it has done so.

• David Fisher gave evidence as an “expert witness” in the Hager v Police case under High Court rules that require an “overriding duty to assist the court impartially on relevant matters”.

Related:

Seymour Hersh: “Government’s treatment of Hager is ‘dramatically wrong'”

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