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Dotcom v Attorney-General

Dotcom v Attorney-General

Case [2022] NZHC 1708 25 July 2022

Jurisdiction

Judicial Review

Natural Justice & Procedural Fairness

Unconscionable Conduct

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2012-404-1928

[2022] NZHC 1708

IN THE MATTER of the Judicature Amendment Act 1972

IN THE MATTER

of an application for judicial review

BETWEEN

KIM DOTCOM

First Plaintiff

FINN BATATO
Second Plaintiff

MATHIAS ORTMAN
Third Plaintiff

BRAM VAN DER KOLK
Fourth Plaintiff

AND

HER MAJESTY’S ATTORNEY-GENERAL

First Defendant

THE DISTRICT COURT AT NORTH SHORE

Second Defendant

see over for further proceeding

Hearing: 9 and 10 June 2022

Appearances:

S L Cogan for Plaintiffs/Applicants

D J Boldt and C L Charmley for Defendants/Respondents

Judgment:

25 July 2022

JUDGMENT OF HINTON J

This judgment was delivered by me on 25 July 2022 at 12.00 pm pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar

DOTCOM v ATTORNEY-GENERAL [2022] NZHC 1708 [25 July 2022]

CIV-2017-404-1679

UNDER the Judicial Review Procedure Act 2016 IN THE MATTER OF an application for judicial review
BETWEEN KIM DOTCOM
Applicant

ANDDEPUTY SOLICITOR-GENERAL (CROWN LEGAL RISK)
Respondent

Counsel/Solicitors:
S L Colgan, Auckland Crown Law, Wellington

[1] This judgment concerns two proceedings arising from the 2012 seizure of electronic devices from Kim Dotcom’s residence and one other property. It was agreed they would be heard together.

[2] The first matter is the vestige of Mr Dotcom and associates’ 2012 judicial review of the warrants issued for the abovementioned seizure. It is an application by the Attorney-General to release four former or serving police officers from their undertakings to not provide hard drive encryption codes to anyone, in particular any representative of the United States government.

[3] The second is an application for judicial review brought by Mr Dotcom challenging two decisions made by the Deputy Solicitor-General under the Mutual Assistance in Criminal Matters Act 1992 (MACMA). The first decision, made in 2017, was to send clones of the seized electronic devices to the United States authorities and the second, in 2022, was to send the original seized devices along with the clones.

[4] Finn Batato, Mathias Ortmann and Bram van der Kolk were Mr Dotcom’s associates. They were parties to the 2012 judicial review and have been involved in other prior litigation. Although they are named in relation to the first proceeding, they did not take part in the present case.1

Background

[5] Mr Dotcom is under criminal investigation by the FBI. On 11 January 2012 the United States Department of Justice made a formal request to be sent electronic devices possessed by Mr Dotcom and associates, including computers and hard drives.

[6] On 20 January 2012, New Zealand Police seized electronic devices from Mr Dotcom and his associates under a MACMA warrant. Around 135 devices, which included nearly 300 separate computers, USB sticks, hard drives, memory cards and other electronic items were seized, mostly from Mr Dotcom.2 Some of the data on these devices is encrypted and requires encryption codes to access.

1 Mr Batato has since died.
2 Several items can be connected to, or form part of, 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 [2022] NZHC 1708
Case: [2022] NZHC 1708
Decision Date: 25 July 2022

CaseChat Overview and Summary

This case involved two separate applications before the High Court of New Zealand. The first was an application by the Attorney-General to release four former or serving police officers from their undertakings not to provide hard drive encryption codes to anyone, particularly any representative of the United States government. The second was an application for judicial review brought by Kim Dotcom, challenging two decisions made by the Deputy Solicitor-General under the Mutual Assistance in Criminal Matters Act 1992 (MACMA). The first decision was to send clones of the seized electronic devices to the United States authorities, and the second was to send the original seized devices, along with the clones, to the United States authorities.

The court found that the change in circumstances, specifically the quashing of orders 2.1 and 2.2, meant there were good grounds for releasing the police officers from their undertakings. The court ruled that the undertakings should be revoked, as there was no injustice to Mr Dotcom and the police were significantly prejudiced in fulfilling their mutual assistance obligations to assist the FBI with evidence collected in New Zealand. The court also found that the Deputy Solicitor-General had jurisdiction to deal with mixed content devices pursuant to s 49 of MACMA and that the decisions in question did not suffer from lack of jurisdiction.

In relation to the judicial review, the court found that the Deputy Solicitor-General's decisions were not in breach of Mr Dotcom's right under s 21 of the New Zealand Bill of Rights Act 1990 to be free from unreasonable search and seizure. The court also found that the Deputy Solicitor-General had properly taken into account Mr Dotcom's right and that the decisions were not unreasonable, nor did they fail to have regard to relevant considerations. The court concluded that the 2022 decision was a substantial change in circumstances warranting reconsideration of the 2017 decision.

As a result, the Attorney-General's application for release from undertakings was granted, and Mr Dotcom's application for judicial review was declined. The defendants/respondents were entitled to costs, with an opportunity for the parties to agree on the quantum or for the court to determine it if necessary.

Orders