Abortion clinic warrant quashed

Press, Volume CXV, Issue 33739, 11 January 1975, Page 2

Abortion clinic warrant quashed

(New Zealand Press Association)

WELLINGTON, January 10.

The Court of Appeal has quashed the searchwarrant by which the records of the Remuera abortion clinic in Auckland were seized by the police last year.

The three judges delivered their judgment today and unanimously agreed that the warrant had been issued improperly. They awarded costs of $5OO to the appellant, the Auckland Medical Aid Trust, for the appeal costs and another S5OO for the costs of the Supreme Court case. But the police are still entitled to retain "any particular records which they may consider that they have legal justification for retaining on some basis other than the validity of the search warrant itself.” They will have this right if they apply to the Supreme Court not later than January 31. The appeal court comprised Mr Justice McCarthy, Mr Justice Richmond and Mr Justice McMullin. The three respondents named were Mr N. R. Taylor, S.M., of Auckland, who issued the search warrant, the former Commissioner of Police (Sir Angus Sharp) and the Attorney-General sued in respect of the Police Department Protection In his judgment Mr Justice McCarthy said while it was important that the police not be frustrated in their attempts to bring offenders to justice, the law existed to protect the rights of individuals as well. "And we must struggle to hold a fair balance.”

The description of the offence in the warrant was not sufficiently specific, he said.

"This deficiency in the warrant is to me so fundamental that I believe that there was a miscarriage of justice.

“Those in charge of the centre were deprived of the opportunity they should have had to resist the wholesale seizure of their records and to insist upon the police making a selective search,” his Honour said. He said that if a warrant could only be issued after information relating to a particular offence and in respect of that offence, “one would expect to see in the warrant particulars which indicate the offence with sufficient particularity at least to enable the officer executing it and the person in respect of whose premises it is issued, to know what the offence is.

“1 do not wish to suggest that a warrant must set out with precision in as much detail as would be required in a charge sheet, and I agree with the submission made to us that whether the particulars given are adequate must turn in many cases on the individual crime,” said his Honour. “For instance, 1 would imagine that if the warrant was issued in respect of ‘the theft of clothing from the warehouse of XY, Ltd,’ that would be adequate. ‘Not so viewed’ “But by no stretch of the imagination can the description in the present case be said to convey to anyone that it was issued in respect of a particular instance of illegal termination of pregnancy. “Nor indeed was it so viewed by the officer who applied for it and to whom it was eventually issued. What Detective Sergeant (G. J.) Lambert wanted and what he thought he obtained was a general warrant to search all the records at the centre for the purpose of seeking what, if any, illegal terminations had been carried on during the period that the centre had been in existence.*’

His Honour said the detective made that clear at the time when, having arrived at the centre with the warrant, he insisted upon all the patients’ files being removed. ‘General warrant’ "The point now made by the Solicitor-General that it was to be expected that those files could provide evidence of a specific offence by establishing, for example, system or mala tides . . . “I think it clear that that was not what Detective Sergeant Lambert set out to get. As I have said, what he wanted and what he thought he got, was a general warrant to search for evidence of any of the offences covered by sections 182 to 186 of the Crimes Act. ‘Contrary to role’ "In my view, it would be contrary to the role which the Courts of our tradition have always adopted — of protecting the integrity of a man’s premises and 'of viewing in a conservative way that extension of statutory powers to interfere with privacy — if we were to uphold the warrant in this case,” said his Honour.