Attorney-General v Dotcom - [2015] NZCA 309

NOTE: THE ORDER AT [7]A[3] AND THE PROHIBITION ON PUBLICATION OF THAT ORDER AT [10]3 OF THIS COURT’S JUDGMENT OF 8 SEPTEMBER 2014 ([2014] NZCA 444) REMAIN IN FORCE.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA420/2013
[2015] NZCA 309

BETWEEN	ATTORNEY-GENERAL Appellant
AND	KIM DOTCOM First Respondent
FINN BATATO Second Respondent
MATHIAS ORTMANN Third Respondent
BRAM VAN DER KOLK Fourth Respondent

Hearing:	9 July 2015
Court:	Randerson, Stevens and White JJ
Counsel:	M H Cooke and F Sinclair for Appellant R M Mansfield and S L Cogan for First Respondent Second Respondent in person (by AVL) G J Foley and A K Hyde for Third and Fourth Respondents
Judgment:	16 July 2015 at 10.30 am

JUDGMENT OF THE COURT

ASubject to order B and the orders noted at [14] of this judgment, the orders made in the sealed judgment of the High Court on 31 May 2013 ([2013] NZHC 1269) at 2.1 and 2.2, as subsequently modified by this Court in its judgment of 8 September 2014 ([2014] NZCA 444) at [7]A, are set aside.
BThe direction made in the judgment of the High Court dated 2 July 2014 ([2014] NZHC 1505) at [29], as subsequently modified by this Court in its judgment of 8 September 2014 ([2014] NZCA 444) at [7]A[6], is remitted to the High Court for review.
CThere is no order as to costs.

____________________________________________________________________

REASONS OF THE COURT

(Given by White J)

Pursuant to leave reserved in the judgment of this Court delivered on 8 September 2014,[1] the Attorney-General has applied for orders:
(a)quashing paragraphs 2.1 and 2.2 of the High Court’s remedial orders (as they applied to the original devices seized and any clones of those devices),[2] as modified in this Court’s interim orders of 8 September 2014;[3] and
(b)releasing the New Zealand police from their confidentiality undertakings in relation to the passwords to the encrypted devices.[4]
[1]Attorney-General v Dotcom [2014] NZCA 444 at [7]B and [10].
[2]Dotcom v Attorney-General [2013] NZHC 1269 at [65].
[3]Attorney-General v Dotcom, above n 1, at [7]A.
[4]Dotcom v Attorney-General [2014] NZHC 1505 at [29] and Attorney-General v Dotcom, above n 1, at [7]A[6].
The Attorney seeks these orders following the decision of the Supreme Court upholding the decision of this Court as to the validity of the search warrants executed at the properties of Mr Dotcom and Mr van der Kolk.[5] The Attorney wishes to issue new directions to the New Zealand police under s 49 of the Mutual Assistance in Criminal Matters Act 1992 (MACMA) so that all original relevant electronic devices seized under the search warrants may be sent to the United States authorities. New s 49 directions are required because this Court upheld the High Court decision that the Attorney’s original direction did not authorise the removal of clones of the devices from New Zealand.[6]
[5]Dotcom v Attorney-General [2014] NZSC 199 aff’d Attorney-General v Dotcom [2014]…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Attorney-General v Dotcom

Details

AGLC: Attorney-General v Dotcom [2015] NZCA 309
Case: [2015] NZCA 309
Decision Date: 16 July 2015 at 10.30 am

CaseChat Overview and Summary

The case of Attorney-General v Dotcom involves the Attorney-General seeking to quash certain orders made by the High Court concerning the handling of electronic devices seized from Kim Dotcom and others. The legal issues revolve around the validity of the High Court's remedial orders and whether the New Zealand police should be released from their confidentiality undertakings regarding encryption passwords. The Court of Appeal considered whether to set aside the High Court's remedial orders and whether to release the police from their confidentiality undertakings.

The Court of Appeal decided to set aside the High Court's remedial orders, allowing the Attorney-General to issue new directions under the Mutual Assistance in Criminal Matters Act 1992. However, the Court determined that the issue of releasing the police from their confidentiality undertakings should be remitted to the High Court for further evidence and submissions. This decision provides an opportunity for the parties to present additional arguments and evidence on the scope of the Mutual Assistance in Criminal Matters Act 1992. The Court also noted that the confidentiality order made by the Court in a previous decision remains in place.

The Court made the following orders: setting aside the High Court's remedial orders, except for those relating to the confidentiality of encryption passwords; remitting the issue of releasing the police from their confidentiality undertakings to the High Court for review; and making no order as to costs.

Orders