The Court of Appeal has delivered significant guidance on the Serious Fraud Office’s search powers in R v Pikia [2024] NZCA 408, with particular implications for digital investigations and the right against unreasonable search and seizure per s 21 of the New Zealand Bill of Rights Act 1990. Fletcher Pilditch acted for the defendant.
Key Findings
The judgment examined the SFO’s four-year investigation, which gathered over one million documents through more than 200 notices and seven search warrants. While rejecting arguments that these collectively constituted a general warrant, the Court found many individual notices and search warrants were overly broad and amounted to the unlawful exercise of SFO powers.
Digital Implications
The Court’s findings are particularly pertinent to electronic data gathering. It held that:
- Section 9 notices cannot be used to seize electronic devices, a practice that the SFO had commonly employed;
- Passwords for devices and cloud storage may be obtained via a s 9 notice, but searching a device or cloud stored data required a search warrant;
- Search warrants should exclude irrelevant material from the scope wherever possible or must specify how irrelevant digital material will be handled;
- The SFO’s breaches were compounded by the failure to keep records of searches of the data seized.
Legislative Reform
Notably, the Court observed that the SFO Act 1990 is “no longer fit for purpose” in the digital age. This assessment reflects the challenges of applying pre-internet legislation to investigations involving cloud storage, mobile devices and vast quantities of electronic communications.
Practice Impact
Fletcher Pilditch KC, who led the defence team from Richmond Chambers, commented: “The judgment brings overdue clarity to the scope of investigative powers in the digital context. The Court has reaffirmed fundamental rights against unduly broad information gathering.”
The ruling will require investigators to take a more targeted approach, particularly regarding electronic data. Practitioners should carefully examine the specificity of notices and warrants, especially where they seek to capture historical digital records or cloud-stored data.
