Dotcom v Attorney-General

[2012] NZHC 1494

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IN THE HIGH COURT OF NEW ZEALAND

AUCKLAND REGISTRY

CIV-2012-404-1928 [2012] NZHC 1494

UNDER  the Judicature Amendment Act 1972

IN THE MATTER OF an application for judicial review and

application for order for interim relief pursuant to section 8

BETWEEN  KIM DOTCOM

First Plaintiff

AND  FINN BATATO

Second Plaintiff

AND  MATHIAS ORTMANN

Third Plaintiff

AND  BRAM VAN DER KOLK

Fourth Plaintiff

AND  ATTORNEY-GENERAL

First Defendant

AND  THE DISTRICT COURT AT NORTH

SHORE

Second Defendant

Hearing:          22 and 23 May, 6 June 2012

Counsel:         P Davison QC (22 & 23 May only), W Akel and R Woods for First

Plaintiff

G J Foley for Second, Third & Fourth Plaintiffs

M Ruffin (22 and 23 May only), F Sinclair for First Defendant (joined in capacity as representative of New Zealand Police)

J Pike and A Toohey (6 June only) for First Defendant (joined in capacity as the Central Authority for the purposes of the Mutual Assistance in Criminal Matters Act 1992)

Judgment:      28 June 2012

JUDGMENT OF WINKELMANN J

This judgment was delivered by me on 28 June 2012 at 3.30 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

TABLE OF CONTENTS

Introduction  [1]

A. Were the warrants invalid?

(i)      Factual background  [9]

Execution of warrants and items seized  [20]

(ii)     Judicial review of search warrants issued under the MACMA      [27]

(iii)   Is the offence adequately described in the warrants  [36]

(iv)    Was there adequate definition of the authority to search

and seize  [51]

(v)     Should conditions have been imposed?  [78]

B. Did the Police seize items outside the scope of the search warrant? [87]

C. Was the provision by the Police of copies of digital files to the FBI

unlawful?  [90]

(i)      Does s 49 regulate physical custody of an item only?  [93]

(ii)     Did the plaintiffs consent to images of computer hard drives

being shipped to the FBI offshore?  [98]

First phase  [104]

Second phase  [118]

Third phase  [122]

Was there consent?  [134]

(iii)   Would the Solicitor-General have consented to the shipment?   [141]

Summary of findings  [144]

Relief  [145]

Introduction

1. The government of the United States of America seeks extradition of the
   plaintiffs in relation to charges stemming from their operation of the Megaupload business, a business which allows customers to upload bulk amounts of data to the internet, and share that data with others. The allegation is that the Megaupload platform has been used by customers in widespread breach of copyright. The United States has asked the Attorney-General of New Zealand for the New Zealand Police's assistance with the investigation of that suspected criminal offending. That request has been made under the Mutual Assistance in Criminal Matters Act 1992 (MACMA), an Act to facilitate the provision and obtaining of international assistance in criminal matters.

2. In fulfilment of that request the Police have taken a number of steps including
   arresting the plaintiffs, carrying out searches, seizing assets, and obtaining orders freezing assets. The plaintiffs…