Search warrant ruled invalid by High Court

Press, 9 February 1983, Page 14

Search warrant ruled invalid by High Court

PA Wellington The Chief Justice. Sir Ronald Davison, has ruled tn the High Court at Wellington that a warrant authorising the search of the premises of a Wellington lawyer. Mr George Rosenberg, was invalid. The warrant was far too wide and general in its terms, he said.

Mr Rosenberg sought to quash a search warrant, signed by Judge Jaine, giving the police access to his appointments diary and related correspondence. During a one hour and a half oral judgment his Honour set out matters for the guidance of those who might have caused to consider the issue of search warrants relating to solicitors’ offices.

Sir Ronald said the case concerned the responsibility of Mr Rosenberg when confronted by police officers holding a search warrant issued under Section 198 of the Summary Proceedings Act authorising the search of his premises as to the commission of an offence by one of his clients.

In October, 1981, the police were investigating a complaint that a car had been unlawfully taken. The car was recovered and near it were discovered two of Mr Rosenbergs business cards, each of which had a time and date, not the same, written on it.

"These were cards which must have been handed by Mr Rosenberg to persons who had an appointment to see him at the respective dates and times recorded on those cards." said his Honour.

"The two cards were discovered in circumstances which led the investigating officers to speculate that they might have been dropped by person or persons connected in some way with the taking of the vehicle. This was a line of inquiry which the police wished to follow up." His Honour said the police approached Mr Rosenberg. They put their inquiries to him by asking whether, if they told him the dates and times of appointments recorded on the cards, he would disclose the name of the client or clients to whom that appointment related. Mr

Bosenberg nao replied that he could not make such disclosure.

Mr Rosenberg had neither been shown the cards in question, nor told the dates and times recorded on them. The next step taken by the police was to apply to the Court under the Summary Proceedings Act for a search warrant.

The affidavit filed in support of that application had not been produced to the Court, but in his affidavit (in the present proceedings) a detective constable had told the Court substantially what was in it.

The affidavit had concluded by asserting that the warrant was sought to obtain the appointment book and or correspondence relating to the client appointments held by Mr Rosenberg which would identify the recipient or recipients of the found appointment cards which it was believed would lead to the identity of the recipient for the unlawful taking of the car in question. His Honour said that on November 18 last year two detectives called at Mr Rosenberg’s office. When invited into the office one of the detectives asked to seethe appointment book, but Mr Rosenberg refused to allow it. While the detectives searched they produced a search warrant. Mr Rosenberg telephoned the president of the Wellington District Law Society and sought his advice on what he should do in the circumstances.

The law society said that if he regarded entries in the diaries or appointment books as privileged he was ethically bound to decline the police officers investigation of the entries. But if, in spite of his refusal, the policemen wished to execute the warrant he should immediately take appropriate legal action in the High Court to test the validity of the warrant and the police officers’ power to search and seize material that was privileged or which might be privileged and that he should w’arn the policemen that' any attempt on their part in the meantime to execute the warrant by force could have serious legal consequences if it was held that the warrant was invalid. His Honour said that on behalf of Mr Rosenberg it was submitted that the war-

rant was invalid on three grounds-

• The District Court Judge could not properly have reached the view that the appointment book and cr correspondence could be evidence as the commission of an offence as Section 198 (1) of the Summary Proceedings Act required

• The warrant was not sufficiently specific. It did not indicate specifically which entries in the appointment book, or which correspondence. were subject to search and seizure. • In the circumstances the warrant necessarily and wrongfully authorised the ssearch and seizure of privileged material because the warrant was in a form which made it impossible to know whether the true objective of the search was privileged or not.

His Honour said that the law as to the validity of a search warrant was fully discussed by the Court of Appeal in the case, Medical Aid Trust and Butler.

Three principles emerged from that decision:

• The warrant in respect of which the search was authorised was not to mislead as to the nature of the alleged offence.

• The warrant might authorise a search and seizure only in respect of which the District Court Judge was satisfied that there were reasonable grounds for believing that there was evidence of the commission of an offence. • The warrant must be in sufficiently specific terms in regard to what was authorised to be searched for and seized so as to enable the occupier of the premises to understand and. if necessary, obtain legal advice about the permissable limits of the search. His Honour said that relating those three principles to the grounds advanced by Mr Rosenberg, he found that the first ground was not established.

The District Court Judge could quite properly have reached the conclusion that the two appointment cards issued by Mr Rosenberg, or by his office, which were found near the car might well have been dropped by persons taking the car or by an occupant of the car.

In such an event if a

search of the appointment book for the times shown on the two cards resulted in the name or names of the person having that appointment, then the appointment book could provide evidence which might lead to the identification of the offender and evidence as to the commission of the offence. "So far as the second ground is concerned, it is true that the warrant was not specific as to the entries in the appointment book or the correspondence relating to appointments which were sought to be obtained." said his Honour.

"There was no limitation as to the period of time the appointment book sought covered. There is no indication as to the client by name, which in this case could not have been given as the police did not know the name. "Nor was there any indication of the client given by linking the client with the date and time of the appointment. which could have been done, because had the police disclosed the date and time, or date and times of appointments, the applicant. Mr Rosenberg, by reference to his appointment book, could have ascertained the name or names of the clients holding those appointments."

His Honour said that if the date and time of appointments had been given, then there would likely only have been one. or at ’ most, only two or three clients having that appointment.

The police had the information as to date or times on the cards. They could have disclosed it, but they refused to do so. Had they disclosed the information, then Mr Rosenberg, having ascertained the name or names of his clients from the appointment book, and considered what material and communications had been made by those clients to him, could have formed a view as to whether those communications were or were riot material to which legal privilege attached.

Mr Rosenberg was entitled to know the limits of the search authorised by the warrant issued by the District Court Judge, said his Honour. The warrant issued in the present case was, in his view, far too wide and general in its terms and must be held to be invalid.

“It may well have been otherwise had the warrant been limited to the search of the entries, in the appointment book or books relating to the particular dates and times,” he said. “It was within the power

“It was within the power of the police to so limit the terms of the warrant sought, but they chose riot to do so and not to disclose the information — certainly not in a form which could be made known to Mr Rosenberg.

His Honour said that

where a search under warrant was made of solicitors’ premises the solicitor had a duty not to allow search of privileged material. The general nature of the warrant issued in the present case was such that the applicant could not identify the appointment cards with the client or clients concerned. Nor could he know whether the material to be sought was privileged or not.

“For the reasons that I have just given under this section as to the general validity of the warrant, I hold that the warrant was invalid,” he said.

Though this section was sufficient to dispose of the matter, because of the argument of counsel on the issue of privilege, and because privilege was directly related to one of the grounds advanced as to the validity under the general head, his Honour would also deal in his judgment with the question of privilege. After citing case law, he said it would be quite inconsistent to hold that, the Legislature intended to preserve the privilege of communication relating to drug cases and not allow it to be preserved in cases relating to other offences under some other statutory provision.

"I find Section 198 of the Summary Proceedings Act, 1957; does not authorise the issue of a search warrant breaking the common-law privilege in relation to the

solicitor-client relationship," he said. For the assistance of those who might have cause to consider the issue of search warrants for solicitors’ offices, his Honour indicated matters for guidance. It was compentent to issue a warrant for search and seizing of documents covered by the privilege of confidentiality. Any warrant issued should clearly identify the client and the material sought. When, as in the present case, the client could not be identified by name it was still

possible to identify the client by reference to the appointment card.

The person issuing the warrant should attach methods of the execution of the warrant that were suitable to safeguard to the maximum the right to confidentiality of a solicitor’s client.

In particular, the solicitor should be given the opportunity of claiming the privilege where he considered on reasonable grounds that it existed and, if necessary, to test his claim before the appropriate court.