Kim Dotcom warrants 'clumsy but valid'

WENDY MURDOCH
Last updated 17:12 28/11/2013

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An unprecedented airborne operation and armed search of Kim Dotcom's mansion was used to seize the "electronic life" of the household, the Court of Appeal has been told today.

A lawyer for the German internet millionaire is asking the court to uphold a High Court judge's decision that the search warrants used were invalid and as a consequence the search and seizure was illegal.

At the end of proceedings today the Court of Appeal reserved its decision.

The hearing was the latest in the Dotcom saga that began with the spectactular search on Dotcom's Coatsville property in January 2012.

Dotcom was facing proceedings to extradite him to the United States, a country he has never even visited, for trial on charges of copyright offences and money laundering, his lawyer, Paul Davison, QC, said.

The allegations had been denied and rejected by Dotcom, he said.

The international obligations of the government to assist the US authorities could not be at the expense of complying with domestic law, but that was what had happened, Davison said.

A vast amount of computer data, the equivalent of 150 million books each 500 pages long, was indiscriminately taken, amounting to the electronic life of not just Dotcom but also his wife and a number of other people whose information was contained on computers at the property.

As a result he had lost the information he needed to run his life and prepare his defence to the case being mounted against him, Davison said. And although he did not have his own information it had been cloned and given to the US authorities.

It had given rise to what could only be described as a gross miscarriage of justice. It was so foreign to the standards of justice accepted in this country that it was unique, he said.

None of the computer material seized had been returned. Davison agreed that it seemed that the US authorities were saying that until Dotcom provided the encryption codes he would not be getting anything back.

What was supposed to be search and seizure and turned into seizure and search, he said.

Lawyers for the Attorney-General are attempting to overturn findings that the original search warrants were defective and if those findings were to stand, what the consequence should be.

In June last year High Court chief judge Helen Winkelmann decided the warrants were invalid for not adequately describing the offences that the warrants related to and for authorising searching for, and seizure of, categories of items that were so broad they covered both relevant and irrelevant material.

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The Attorney-General, David Boldt, told the three Court of Appeal judges today that the Crown did not shrink from the fact that the warrants contained errors, but they were errors of expression and a clumsiness in the way the warrants were drafted.

But the warrants could only be invalid if there was a miscarriage of justice that gave rise to actual prejudice.

It was a very high threshhold to be met before the warrant could be treated as a nullity, so flawed that in effect they did not exist, Boldt said.

He said that, taking them in context the warrants were not excessively broad and contained the information that Justice Winkelmann said they should.

It was alleged that the Dotcom business Megaupload and associated entities were a "front," a business purporting to act as a cyber locker, a file storage and sharing enterprise, but was in fact designed to facilitate illegal sharing of copyrighted works, Boldt said.

The hearing is due to end today.

SPIES IN THE COURT?

New Zealand spies could be permitted to give evidence in a top-secret court hearing, it has emerged.

Newly released police files reveal a reference to "data supplied to the GCSB" in the leadup to a raid on the internet mogul's home.

There are suggestions the data came from the controversial US National Security Agency.

The file says: "Because of the origin of the data supplied to GCSB it could not be established to an evidential standard whether the data was gathered at rest or in transit."

Later in the document it again refers to data obtained by the GCSB.

"The investigation could not establish whether it was gathered at rest or in transit when it was acquired.

"GCSB could not provide the investigation with this information as they did not have it."

The file also revealed three agents refused to co-operate with a police investigation into illegal surveillance of Dotcom by the GCSB.

After the documents were released to The Dominion Post this week, Dotcom's lawyers took the papers to a High Court hearing in Auckland.

The case is part of Dotcom's $6m bid for compensation.

Paul Davison, QC, accused the GCSB of deliberately withholding information.

He said his legal team was prepared to summon spies to court to give evidence.

The lawyer for the GCSB, David Boldt, said it had supplied relevant information and that if staff were to be called to court, it must be in secret with technology restrictions.

He argued unsuccessfully for suppression of discussion in court about the spy documents.

Justice Helen Winkelmann did suppress speculation by lawyers about which New Zealand-based spy resources may have been used.

The police documents related to Operation Grey, which was sparked by a complaint from Green Party co-leader Russel Norman into illegal spying.

He believes they point to NSA mass surveillance within New Zealand, possibly conducted through the Waihopai spy base, as part of the Five Eyes intelligence network.

"The question is whether this information was collected while [Dotcom] was in New Zealand or on one of his overseas trips," Norman said.

Police had asked GCSB for help in December 2011 as they gathered evidence for a joint police-FBI raid on Dotcom's rural Auckland home.

The surveillance was illegal as the German was a New Zealand resident.

Mass surveillance by the US security agencies was revealed by former NSA contractor Edward Snowden, who revealed the existence of programmes such as Prism and X Keyscore.

In August, the whistleblower released documents in which New Zealand was listed as a collection site for an NSA database of phone-call, email and internet search data.

However, the New Zealand Government has consistently refused to confirm what co-operation is given to the NSA.

Norman has criticised police for not investigating the GCSB properly and has laid a complaint with the Independent Police Conduct Authority.

- © Fairfax NZ News

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