CA420/2013 [2014] NZCA 19

BETWEEN
HER MAJESTY’S

ATTORNEY-GENERAL Appellant

AND

KIM DOTCOM First Respondent

AND

FINN BATATO Second Respondent

AND

MATHIAS ORTMANN Third Respondent

AND

BRAM VAN DER KOLK Fourth Respondent

Hearing: 28 November 2013

Court:

Ellen France, Randerson and White JJ

Counsel:

D J Boldt, F Sinclair and M J Cooke for Appellant

P J Davison QC, W Akel and H D L Steele for First Respondent G J Foley and L Stringer for Second, Third and Fourth Respondents

Judgment:

19 February 2014 at 10.00 am

JUDGMENT OF THE COURT

AThe appeal is allowed in respect of the declaration as to the invalidity of the search warrants, but dismissed in respect of the declaration as to the unauthorised removal of the clones from New Zealand.
BThe order made in the sealed judgment of the High Court at 1 declaring the search warrants invalid is set aside.

HER MAJESTY'S ATTORNEY-GENERAL v KIM DOTCOM CA 420/2013 [2014] NZCA 19 [19 February
2014]

C The orders made in the sealed judgment of the High Court at 3.1 and

3.2.1 are confirmed.

DLeave is reserved to any of the parties to apply to this Court for any further relief that may be necessary in respect of the remaining orders in the sealed judgment of the High Court.

EThe respondents are to pay 60 per cent of the costs of the appellant for a standard appeal on a band A basis. We certify for two (not three) counsel. The liability of the respondents for costs is joint and several.
FLeave is reserved for the parties to apply to the High Court for costs in that Court in light of this judgment.

REASONS OF THE COURT

(Given by White J)

Table of Contents

Para No Introduction [1] The validity of the search warrants [10] The search warrants [10]

The High Court judgments [12] Submissions [21] Principles [24] The application of the MACMA [37] The terms of the search warrants [51] The terms of the arrest warrants [55] The execution of the search warrants [60] A miscarriage of justice? [67]
The validity of the removal of the clones [74] Background [74] The Solicitor-General’s direction [76] Mr Dotcom’s claim [79] The High Court judgments [82] Submissions [85] The issues [88] Interpretation of s 49 [90] Did the Solicitor-General’s direction prevent removal? [112] Application of s 49 [113]

Consequential orders [115]
Result [120]

Introduction

[1] On 20 January 2012 the police executed search warrants at the properties of the first and fourth respondents, Messrs Kim Dotcom and Bram van der Kolk. Acting under the warrants, which had been obtained the previous day from a District Court Judge, the police seized more than 135 electronic items, including laptops, computers, portable hard drives, flash storage devices and servers, containing an estimated 150 terabytes of data.

[2] The search warrants were obtained under the Mutual Assistance in Criminal Matters Act 1992 (the…

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 [2014] NZCA 19
Case: [2014] NZCA 19
Decision Date: 19 February 2014 at 10.00 am

CaseChat Overview and Summary

The Court of Appeal considered an appeal by the Attorney-General against the declarations of invalidity in respect of search warrants and the unauthorised removal of electronic clones from New Zealand. The respondents, including Kim Dotcom, challenged the validity of the search warrants and the removal of electronic clones, which contained an estimated 150 terabytes of data, to the United States. The Court of Appeal held that the search warrants were valid, as they were not so radically defective as to require them to be treated as nullities, and did not lead to a miscarriage of justice. However, the Court confirmed the declaration that the removal of the electronic clones from New Zealand was contrary to the Solicitor-General's direction and was unlawful. The appeal is allowed in respect of the declaration as to the invalidity of the search warrants, but dismissed in respect of the declaration as to the unauthorised removal of the clones from New Zealand. The orders made in the sealed judgment of the High Court at 3.1 and 3.2.1 are confirmed. Leave is reserved to any of the parties to apply to this Court for any further relief that may be necessary in respect of the remaining orders in the sealed judgment of the High Court. The respondents are to pay 60 per cent of the costs of the appellant for a standard appeal on a band A basis.

Orders