The raid on Kim Dotcom's mansion may have been an illegal "fishing expedition", but extradition remains on the cards for the flamboyant internet millionaire.
In the High Court on Thursday, Justice Helen Winkelmann ruled the high-profile police raid that ended in the search and seizure of a large amount of Dotcom's property was done with invalid warrants.
She labelled the raid illegal and the subsequent removal of cloned hard drives as unlawful.
She found that the warrants, taken out by New Zealand police acting on behalf of the FBI, were too broad and too general - they needed to be far more specific about what was being looked for.
But Victoria University international law expert Associate Professor Alberto Costi said that, although evidence gathered in the "fishing expedition" would now probably be returned to Dotcom, the door was open for police to reapply for a more targeted warrant and search his house again.
However, it was also possible a judge could rule some evidence "tainted" and thus rule it out of further searches.
Dotcom is still facing possible extradition to the United States. Dr Costi said, for that to happen, a judge would have to be satisfied that "on the basis of the evidence presented" there was a case for him to answer. "That will only work if the evidence has been obtained legally."
Dotcom's San Francisco-based lawyer Ira Rothken said he did not know what impact the ruling would have on an extradition hearing due to be held in Auckland on August 6.
"We are pleased the court ruled the US acted illegally by taking the hard drives offshore," he said.
However, when asked whether he believed the US Government would return the illegally seized information, he said: "We will analyse the [US] Government's conduct in light of this ruling."
US authorities claim Dotcom and his three co-accused Mathias Ortmann, Fin Batato and Bram van der Kolk used the Megaupload website and its affiliated sites to knowingly make money from pirated movies and games. They have charged him in the US with multiple copyright offences.
Justice Winkelmann said the search warrants did not stipulate that the offences of breach of copyright and money laundering were offences under US law.
This "would no doubt cause confusion to the subjects of the searches they would likely read the warrants as authorising a search for evidence of offences as defined by New Zealand law," she said. "As such [they] are invalid."
Once police had seized computers and other electronic equipment, FBI agents then searched them and sent material back to the US, without telling New Zealand authorities.
Police had said they had no intention of sorting items seized in the raid into the "relevant" and "irrelevant", and they intended to leave that to the FBI. However, Justice Winkelmann said that was wrong.
Under New Zealand law, only items specific to an investigation could be sent to a foreign authority.
She ordered that no more items taken in the raids could be removed from New Zealand and instructed the attorney-general to return clones of the hard drives held by New Zealand police.
Dotcom spoke at a meeting at his local Coatesville Settlers Hall last night, but entered through a back door and would not speak to reporters.
- © Fairfax NZ News
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