Hearing:	19 September 2023
Court:	Cooper P, Brown and Courtney JJ
Counsel:	S L Cogan for Appellant D J Boldt and L C Hay for Respondents
Judgment:	26 June 2024 at 11.00 am

JUDGMENT OF THE COURT

A The appeal in CA426/2022 is dismissed.

BThe appeal in CA636/2022 is dismissed.
CCosts are awarded in accordance with the directions at [97].

____________________________________________________________________

REASONS OF THE COURT

(Given by Brown J)

Table of Contents

Para No
Introduction  [1]
Relevant background to CA426/2022  [4]
     The release from the undertakings  [4]
     Review of the MACMA decisions  [9]
The judgment of Hinton J  [14]
     The release from the undertakings  [14]
     Review of the MACMA decisions  [19]

The release from the undertakings  [24]
     The issue  [24]
Counsel’s submissions  [25]
     Discussion  [29]
Judicial review of the MACMA decisions  [44]
MACMA  [44]
     The issues on appeal  [47]
     Section 49 and mixed-content devices  [48]
     NZBORA and MACMA  [54]
The context of the costs appeal (CA636/2022)  [66]
The judgment of Venning J  [71]
Grounds of appeal  [77]
Discussion  [78]
Result  [95]

Introduction

In January 2012, the police seized several electronic devices from the Mr Dotcom’s home pursuant to search warrants issued under s 44 of the Mutual Assistance in Criminal Matters Act 1992 (MACMA).[1] The police made forensic clones of the seized devices, some of which were taken to the United States of America by FBI investigators. Much litigation ensued, the details of which, relevant to this judgment, are explained below.
[1]The respondents’ submissions noted that the seized items included computers, hard drives, memory cards, USB sticks and mobile phones.
This judgment addresses appeals against three decisions of the High Court in the course of that litigation. The first and second decisions (the subject of appeal CA426/2022), made in the judgment of Hinton J dated 25 July 2022,[2] are:
(a)the grant of the Attorney‑General’s application to release four former or serving police officers from the undertakings which they were directed to give concerning certain passwords for the seized devices;[3] and
(b)the dismissal of Mr Dotcom’s application for judicial review of two decisions made by the Deputy Solicitor-General under s 49 of MACMA to send the devices to the United States.[4]
[2]Dotcom v Attorney-General [2022] NZHC 1708 [Substantive judgment].
[3]At [26]–[41].
[4]At [42]–[111].
The third decision (the subject of appeal CA636/2022) is an order of Venning J, dated 19 October 2022, that Mr Dotcom is jointly and severally liable with his wife, Mona Dotcom, to pay the costs and disbursements of the Attorney-General in the sum of $55,650.47.[5]

Relevant background to CA426/2022

The release from the undertakings

[5]Dotcom v Attorney-General [2022] NZHC 2706 [Costs judgment] at [34].

The background to this aspect of the appeal is…

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 [2024] NZCA 270
Case: [2024] NZCA 270
Decision Date: 26 June 2024 at 11.00 am

CaseChat Overview and Summary

The Court of Appeal dismissed both CA426/2022 and CA636/2022, concluding that the decisions of the High Court were correct. In CA426/2022, the appeal related to the release of police officers from undertakings concerning certain passwords for seized electronic devices and the judicial review of decisions under the Mutual Assistance in Criminal Matters Act 1992 (MACMA). The Court of Appeal upheld the High Court's decision that the undertakings were appropriately treated as court orders and that the change in circumstances warranted their release. Regarding the judicial review, the Court of Appeal rejected Mr Dotcom's arguments that the Deputy Solicitor-General lacked jurisdiction to deal with mixed-content devices and that the decisions breached his rights under the New Zealand Bill of Rights Act 1990. In CA636/2022, the appeal concerned the costs awarded in a proceeding involving the Government Communications Security Bureau (GCSB) and claims related to unlawful interception of communications. The Court of Appeal upheld Venning J's decision that the proceeding did not involve a matter of public interest and that the costs award was appropriate. The Court of Appeal ordered that the appellant must pay the respondents' costs for the standard appeals on a band A basis and usual disbursements.

Orders