Police raids on Kim Dotcom's mansion in 2012 have been declared legal, but FBI removal of electronic information seized in the search was unlawful, the Court of Appeal has found.
Police executed search warrants on the properties of internet entrepreneur Dotcom and computer programmer Bram van der Kolk on January 20, 2012, seizing 135 electronic items including laptops, computers, portable hard drives, flash storage devices and servers.
The warrants were executed at the request of the United States Department of Justice which is seeking the extradition of Dotcom, van der Kolk and others to face trial on a number of criminal offences, including breach of copyright and money laundering involving "substantial sums of money", the Court of Appeal said.
The High Court ruled last June the search warrants executed on Dotcom's Coatesville mansion were invalid because they were not in sufficiently specific terms.
Justice Winkelmann held the search warrants "did not adequately describe the offences to which they related" and "authorised the seizure of such very broad categories of items that unauthorised irrelevant material would inevitably be captured".
No offence was identified in the warrants which merely referred to "breach of copyright" - an offence in the United States, but there is no criminal offence of breach of copyright in New Zealand.
The warrants also did not stipulate which country's laws the offence was alleged to have been committed under, Justice Winkelmann found.
The other defects went "to the heart of the warrants and count not be properly categorised as minor", Justice Winkelmann found.
The Attorney General appealed this decision, acknowledging the search warrants were "far from perfect", but that leading authorities required the Court to adopt a "common sense approach taking into account the particular circumstances of the case."
The Court of Appeal accepted while the warrants were defective in some respects, the deficiencies were not sufficient to mean they should be nullified.
Dotcom and the other respondents would have understood the nature and scope of the warrants, especially in light of their arrest warrants - which were not defective, and the explanations given to the by the police when the properties were searched, the Court of Appeal found.
In these circumstance, no miscarriage of justice occurred, the Court's judgment said.
"[W]e are satisfied that the defects in the search warrants have not caused any significant prejudice to the respondents beyond the prejudice caused inevitably by the execution of a search warrant," the judgment said.
The police also permitted the FBI to take to the United States copies of some of the electronic items seized in the raid - the legality of which was the second ground of appeal before the Court today.
The High Court ruled the removal of the copies of the electronic items was in breach of the Solicitor General's direction to the Commissioner of Police that the items were to remain in the Commissioner's "custody and control" until further direction.
The police and Crown Law were concerned there should be a register which clearly identified every item and document seized, and Dotcom had indicated he would file judicial review proceedings challenging the search warrant, the Court of Appeal said.
The Solicitor General, acting on behalf of the Attorney-General, issued a direction on February 16, 2012, that the items seized were to remain in the custody of the Commissioner of Police.
Despite that, forensic copies of some of the electronic items seized during the searches were made by the FBI and taken by the FBI back to the United States in March 2012.
The Court of Appeal agreed with the High Court's determination that the removal of the copies of the electronic items was not authorised, and the Commissioner had no power to deal with the items by permitting copies of some of them to be removed by the FBI to the United States.
The Court dismissed the Attorney-General's appeal on that matter, and held the removal was unlawful contrary to the Solicitor General's direction.
None of the other issues relating to Dotcom currently before the Courts were dealt with by the Court of Appeal's judgment today.
- The Dominion Post
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