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 PlaintiffMATHIAS ORTMAN
Third PlaintiffBRAM VAN DER KOLK
Fourth PlaintiffAND
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…
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- [2022] NZHC 1708
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CaseChat Overview and Summary
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.
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