Police breached Nicky Hager's "journalistic privilege" during an unlawful search of his property in 2014, the Independent Police Conduct Authority said today.
However, officers involved in the October 2014 search showed no evidence of intent to deceive the judge or act in bad faith, therefore it did not amount to misconduct by any individual officer, the authority also said in its findings.
The IPCA said that police policy at the time did not adequately set out the procedure officers needed to follow when applying for a search warrant or executing a search in relation to potentially privileged material.
After the search, Mr Hager sought a judicial review of the police’s search warrant and, on December 17, 2015, the High Court in Wellington issued a judgment declaring the search warrant was "fundamentally unlawful" as police had failed to comply with their "duty of candour" when drafting it.
In particular, police did not mention that Mr Hager was a journalist and could claim "journalistic privilege" to protect his confidential source.
IPCA chairman Judge Colin Doherty said: "Police did not conduct the search in an appropriate manner because they did not adequately plan how to give Mr Hager the opportunity to claim privilege over the material being searched if he was not at home. Nor did police adequately plan how to secure the relevant documents without breaching privilege."
The Authority found that police breached privilege and thereby acted unlawfully by taking investigative steps to act on information they observed or collected during the search.
It also found police's warrant application did not sufficiently address whether the officers had reasonable grounds to believe they would find relevant evidence in Mr Hager’s home, and the search warrant inadequately described two of the five categories of evidential material that was to be searched for and seized.
The Authority also found that police failed to fulfil their duty of candour when applying for production orders against Air New Zealand and Jetstar in relation to Mr Hager’s travel.
Those applications were defective in that they failed to disclose reasonable grounds to believe that Air New Zealand or Jetstar held evidential material, the IPCA found.
Assistant Commissioner Bill Searle said: "In the ensuing years these issues have been heard and clarified throughout a number of legal proceedings including at the High Court and the Court of Appeal.
"Police note the matters examined in this report have been well traversed."
Mr Searle acknowledged that in June 2018, "processes used to obtain the search warrant and request information about Mr Hager were unlawful, for which we have both apologised and reached a confidential settlement including costs and damages".
As a result of this case, police revised their policy on privilege and the IPCA is satisfied that the issues have been addressed.
During the Authority’s investigation, Mr Hager also raised questions about whether the resources Police devoted to the investigation into ‘Rawshark’ were proportionate to the seriousness of the alleged offence.
But the Authority was unable to reach a conclusion on this issue due to a lack of information about the competing investigative demands at the time.