Counsel: P J Davison QC, W Akel & R Woods for first plaintiff
G J S R Foley for second, third and fourth plaintiffs
K P McDonald QC and D J Boldt for first defendant

Judgment: 31 May 2013

JUDGMENT OF WINKELMANN J

This judgment was delivered by me on 31 May 2013 at 1.00 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

DOTCOM v ATTORNEY-GENERAL [2013] NZHC 1269 [31 May 2013]

A. Introduction

[1] In June 2012 I issued a judgment upholding the plaintiffs’ challenge to the validity of search warrants and related searches (the warrants’ judgment). The warrants had been issued by the District Court and executed by Police in January
2012 at addresses associated with the first plaintiff, Mr Dotcom, and the fourth plaintiff, Mr van der Kolk. Assets of all four plaintiffs were seized during the course of those searches. This judgment is concerned with the appropriate relief to be granted to the plaintiffs in light of those findings.

[2] In addition to declarations of illegality, the plaintiffs seek relief, in broad terms, limited to the return of irrelevant material held by the Police, and access to material seized. The Police contend that the plaintiffs are entitled to no relief other than declarations of illegality. They say that any invalidity or illegality was technical in nature only, so that the plaintiffs have suffered no prejudice, and in any case, the relief sought would be difficult and expensive to provide.

[3] I have concluded that the deficiencies in the warrants and, as a consequence, the searches, were more than merely technical. The defects in the warrants were such that the warrants were nullities. The plaintiffs are entitled to relief that places them, if only roughly, in the position in which they would have been if the searches had been conducted pursuant to a valid warrant. The appropriate relief is to require the Police to undertake the search exercise they should have completed, limiting the
right to seize to the particular offences that should have been stipulated.1 Those

particular offences are criminal copyright infringement by distributing copyright works on the Megaupload platform and, by that means also, aiding and abetting criminal copyright infringement. The Police are to review digital data storage devices and return any to the plaintiffs that contain no relevant material.2 The Police may retain storage devices that contain a mixture of relevant and irrelevant data, but
should provide a clone of those devices to the plaintiffs. These actions are to be

1 I distinguish 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 Dotcom v Attorney-General

Details

AGLC: Dotcom v Attorney-General [2013] NZHC 1269
Case: [2013] NZHC 1269
Decision Date: 31 May 2013

CaseChat Overview and Summary

In Dotcom v Attorney-General, the plaintiffs challenged the legality of search warrants and related searches conducted by the Police at their properties. The High Court had previously found the warrants invalid, and the Court was now considering the appropriate relief to be granted to the plaintiffs. The plaintiffs sought relief limited to the return of irrelevant material held by the Police and access to material seized. The Police argued that the plaintiffs were entitled to no relief other than declarations of illegality. The Court found that the defects in the warrants were more than technical and that the plaintiffs were entitled to relief that placed them in the position they would have been in if the searches had been conducted pursuant to a valid warrant. The appropriate relief was to require the Police to undertake the search exercise they should have completed, limiting the right to seize to the particular offences that should have been stipulated. The Police were to review digital data storage devices and return any to the plaintiffs that contain no relevant material. The Police could retain storage devices that contain a mixture of relevant and irrelevant data but should provide a clone of those devices to the plaintiffs. The orders were to be completed before releasing any material to the Federal Bureau of Investigation. The Court made orders in line with these findings, including declarations of illegality, orders for the return of irrelevant material, and orders for the provision of clones of seized devices to the plaintiffs.

Orders