Dotcom v Minister of Justice
[2024] NZHC 3834
•13 December 2024
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2024-485-583
[2024] NZHC 3834
UNDER the Judicial Review Procedure Act 2016 IN THE MATTER
of an application for judicial review
BETWEEN
KIM DOTCOM
Applicant
AND
MINISTER OF JUSTICE
First Respondent
COMMISSIONER OF POLICE
Second Respondent
Hearing: 3 December 2024 Appearances:
S L Cogan for Applicant
J E Hodder KC and S J Leslie for First Respondent
G M Taylor and F R J Sinclair for Second RespondentJudgment:
13 December 2024
JUDGMENT OF McHERRON J
(Discovery Application)
[1] Kim Dotcom applies for tailored discovery orders against both respondents for documents he says are relevant to his application for judicial review of decisions by:
(a)the first respondent, the Minister of Justice (Minister), to surrender Mr Dotcom to the United States of America (Surrender Decision); and
(b)the second respondent, the Commissioner of Police, not to charge Mr Dotcom with offences under New Zealand law, having charged
DOTCOM v MINISTER OF JUSTICE [2024] NZHC 3834 [13 December 2024]
Mr Dotcom’s former alleged co-conspirators Mathias Ortmann and Bram van der Kolk.
[2]For the reasons outlined below, I dismiss Mr Dotcom’s application.
Background
[3] In 2012, the United States requested the extradition of Kim Dotcom to face copyright infringement, money laundering, and wire fraud charges relating to Mr Dotcom’s Megaupload business.
[4] After much intervening litigation, on 4 November 2020 the Supreme Court of New Zealand held that Mr Dotcom is eligible for surrender on 12 of the 13 charges he faces in the United States.1 When eligibility proceedings concluded in December 2021, the Minister needed to consider whether Mr Dotcom should be surrendered.2
Briefing Paper to Minister
[5] Before making his Surrender Decision, the Minister, Hon Paul Goldsmith, considered a paper dated 2 July 2024 prepared by Ministry of Justice (Ministry) officials (Briefing Paper).
[6] Edrick Child, the Ministry’s Deputy Chief Legal Counsel, oversaw the briefing process for the Minister. Mr Child deposed that the Ministry’s work on the Briefing Paper commenced in 2022. The (then) Minister, Hon Kris Faafoi, invited Mr Dotcom to provide any submissions and evidence that Mr Dotcom wished the Minister to consider.
[7] Mr Dotcom provided his 210 page initial legal submissions on 25 July 2022. They were supported by an electronic bundle of documents running to many thousands of pages. Mr Dotcom later provided health information in October 2022 and
1 Ortmann v United States of America [2020] NZSC 120, [2020] 1 NZLR 475 [Eligibility Decision].
2 After the Supreme Court gave its Eligibility Decision in 2020, an outstanding judicial review required the matter to be remitted back to the Court of Appeal. That Court released its decision declining the judicial review on 12 July 2021. The Supreme Court then declined leave for a further appeal on 21 December 2021. It was because of these outstanding matters that the matter was not referred to the Minister for his decision until 21 March 2022.
supplementary submissions on 9 May 2024. The Ministry provided the two sets of submissions and the health information in full to the Minister, appended to the Briefing Paper. However, the Ministry did not provide the Minister with Mr Dotcom’s electronic bundle of documents.
[8] In preparing the Briefing Paper, the Ministry’s Office of Legal Counsel corresponded with a small number of other agencies including with:
(a)a United States legal expert, David Debold, regarding United States sentencing and forfeiture law;
(b)the Commissioner of Police seeking information about the prosecution of Mr Dotcom’s alleged co-offenders, Mr Ortmann and Mr van der Kolk. (Mr Child deposes the Ministry had no other correspondence about the plea agreements with those individuals or about the basis for not charging Mr Dotcom in New Zealand, either with the Police or any other agency.)
(c)Crown Law regarding documents filed in the United States court, which Mr Dotcom had brought to the Minister’s attention. These documents make up appendices 6–11 to the Briefing Paper.
[9] Mr Child deposed that he and his colleagues were mindful of the requirements of natural justice in preparing the Briefing Paper. So, they ensured that they provided Mr Dotcom an opportunity to comment on any documents included or relied upon in the Briefing Paper that he had not previously seen. Mr Dotcom’s further submissions dated 9 May 2024 addressed the Debold and Police communications.
Surrender Decision
[10] On 8 August 2024, the Minister made his Surrender Decision, determining Mr Dotcom is to be surrendered to the United States to face trial on the 12 charges on which the Supreme Court found him eligible for surrender.3
3 Extradition Act 1999, s 30.
[11] On 12 August 2024, the Minister signed and dated a letter setting out his reasons and a surrender order under the Extradition Act 1999.4
Application for judicial review
[12] On 9 September 2024, Mr Dotcom commenced the present judicial review proceeding.
[13] All parties have provided initial disclosure. The Minister’s initial disclosure comprised the Briefing Paper (including its 11 appendices) on which his Surrender Decision was based, having waived legal privilege on a limited basis for the purposes of the present proceeding.
[14] The Commissioner of Police provided initial disclosure comprising two documents relating to Official Information Act requests referred to in Mr Dotcom’s statement of claim.
[15] The respondents submit no further discovery is necessary. That is because the Ministry’s Briefing Paper, which is said to be the only material upon which the Minister relied in reaching his Surrender Decision, has already been disclosed in the initial disclosure. The Commissioner sets out the reasons for the impugned decision not to prosecute Mr Dotcom and the matters considered in the letter to Mr Dotcom’s counsel dated 18 July 2023.
The discovery application
[16] The categories of documents sought are set out in a schedule to Mr Dotcom’s application.
[17]From the Minister, Mr Dotcom seeks:
(a)Category 1: all documents collated, obtained, referred to, considered and/or relied upon by the Ministry in preparing the Briefing Paper;
4 Extradition Act, ss 31 and 67.
(b)Category 2: documents within the scope of Mr Dotcom’s 2015 Privacy Act 1993 requests, to the extent they were previously redacted and/or withheld.
[18] In respect of the documents sought from the Minister, Mr Dotcom says that these documents are relevant to whether the Briefing Paper was fair, accurate and adequate and, therefore, whether the Minister failed to have regard to all relevant considerations or otherwise acted unlawfully in making his Surrender Decision.
[19]From the Commissioner of Police, Mr Dotcom seeks:
(a)any agreements between Messrs Ortmann or van der Kolk respectively and New Zealand and/or the United States, relating to:
(i)those individuals being charged with offences under New Zealand law;
(ii)those individuals pleading guilty to charges under New Zealand law; and/or
(iii)the United States withdrawing its request for their surrender.
(b)documents relating to those agreements and the underlying charges, including but not limited to:
(i)internal New Zealand Police documents; and
(ii)written communications or records of written communications between New Zealand Police and those individuals and other relevant government agencies including Ministers of the Crown.
[20] In respect of the documents sought from the Commissioner of Police, Mr Dotcom says these documents are relevant to:
(a)the Commissioner’s “refusal” to charge him with offences under New Zealand law; and
(b)what he says is the “resulting gross disproportionality between the sentence which he expects to face in the United States and the sentences in fact imposed on Mr Ortmann and Mr van der Kolk” for what Mr Dotcom says is “the same alleged conduct”.
Legal principles
[21] The parties agree on the legal principles applicable to discovery in judicial review proceedings. There is power to order discovery in a judicial review proceeding.5 However:
(a)discovery is discretionary, in marked contrast from the position that applies in an ordinary proceeding;6
(b)judges are responsible for narrowing issues and supervising the proceeding to ensure that the material placed before the Court is reduced to the necessary minimum;7
(c)the touchstones for discovery are relevance of the material to the proceeding, necessity of disclosure of the material in the circumstances, and proportionality;8
(d)discovery is not usually granted in judicial review proceedings, for the most part because it is unnecessary;9
5 Judicial Review Procedure Act 2016, s 14(2)(h).
6 Chatfield & Co Ltd v Commissioner of Inland Revenue [2016] NZCA 614 at [20]. See also Gama Foundation v Chief Executive of the Ministry of Social Development [2021] NZHC 3146 at [7] – [8], citing Te Runanga O Ngāti Awa v Attorney-General HC Wellington CIV-2006-485-1025, 28 March 2007 at [6] and New Zealand Steel Ltd v Minister of Commerce and Consumer Affairs [2017] NZHC 3232, (2017) 24 PRNZ 409 at [28].
7 BNZ Investments Ltd v Commissioner of Inland Revenue HC Wellington CIV-2006-485-697, 7 December 2006.
8 Te Runanga O Ngāti Awa v Attorney-General, above n 6.
9 Ririnui v Landcorp Farming Ltd (No 1) [2014] NZHC 732.
(e)public authorities usually disclose relevant documentation in affidavit evidence without the need for specific orders;10
(f)more broadly, decision-makers exercising public authority owe a “duty of candour” in relation to the provision of relevant background documents to the decision;11
(g)the Court must assess what discovery is required to enable an applicant to fairly argue their case, while ensuring the materials remain relevant, and the requirements are consistent with the objective of judicial review being a simple, untechnical and prompt procedure;12
(h)while a decision-maker should undertake due diligence to locate documents relevant to the pleaded case, whether they support or undermine the lawfulness of the decision, there is no obligation to locate every document that could possibly be relevant to the subject matter of the decision; where the line should be drawn is context specific;13
(i)a low relevance threshold for discovery was inappropriate for judicial review proceedings, especially in an extradition context, which is also expected to be an expeditious process;14
(j)relevance is determined by the issues as pleaded and discovery orders of a “fishing” nature are not part of tailored discovery. Orders will not be granted where the categories do not related to a pleaded relevant issue, but rather a non-pleaded issue which might be pleaded should discovery reveal documents that support such a pleading.15
10 At [5].
11 Attorney-General v Institution of Professional Engineers New Zealand Inc [2018] NZHC 74, [2018] NZAR 275.
12 Gama Foundation v Chief Executive of the Ministry of Social Development, above n 6, at [10].
13 Kim v Minister of Justice [2024] NZHC 2183 at [14].
14 At [35].
15 Commerce Commission v Cathay Pacific Ltd [2012] NZHC 726 at [13].
Pleaded issues
[22] The following list of pleaded issues for the substantive judicial review is drawn from the submissions on behalf of Mr Dotcom:
(a)Whether the United States’ prosecution was politically motivated for the improper purpose of making an example of Mr Dotcom for political gain.
(b)Whether the extradition proceeding has been tainted by unlawfulness and/or abuse of process by the New Zealand authorities.
(c)Whether it would be unjust and/or oppressive to surrender Mr Dotcom given that, if charged in New Zealand like Mr Ortmann and Mr van der Kolk, the potential sentence would be a fraction of that which he would receive in the United States if convicted.
(d)Whether, if surrendered, Mr Dotcom would receive a fair trial in the United States in accordance with the minimum standards in Art 14 of the International Covenant on Civil and Political Rights.
(e)Whether the Commissioner acted unlawfully by refusing to prosecute Mr Dotcom in New Zealand like Mr Ortmann and Mr van der Kolk, resulting in grossly disproportionate treatment of different members of the same alleged criminal enterprise who are alleged to have engaged in substantially the same conduct.
[23] Mr Dotcom claims that failure to take into account relevant considerations as a result of omissions and/or inaccuracies in the Briefing Paper is one of the issues for resolution in his judicial review challenge. But this ground is not yet pleaded. Mr Dotcom has indicated he may file an amended statement of claim (a draft of which was provided for the purposes of the discovery hearing) which will allege the Minister failed to take account of relevant considerations, including as a result of:
(a)the Ministry having failed to provide the Minister with a fair, accurate and adequate Briefing Paper;
(b)the Minister having failed to make further inquiries beyond what was in the Briefing Paper e.g. by failing to obtain and consider the plea agreements, let alone the documents underlying the plea agreements.
[24] However, Mr Dotcom only intends to file an amended statement of claim with this additional ground of review following completion of discovery.
Discovery sought against the Minister
[25] For Mr Dotcom, Mr Cogan’s starting point is that the Briefing Paper to the Minister was required to be “fair, accurate and adequate”.16 However, he submits that whether, and to what extent this requirement was met cannot be determined by reference to the Briefing Paper alone. Rather, it is necessary to understand the information that was within the Ministry’s control but was not reflected, or not accurately reflected, in the Briefing Paper presented to the Minister. In short, Mr Cogan said Mr Dotcom needed to have what was left on the Ministry’s “cutting room floor”.
[26] Mr Cogan said he was not aware of or targeting any specific documents from “Category 1” that had been “left on the cutting room floor”. However, examples of documents that he says “one would expect there to have been some or all of” include correspondence with the United States regarding:
(a)potential assurances;
(b)the sentence likely to be sought if Mr Dotcom is convicted in the United States;
(c)whether the United States would oppose compassionate release on health or other grounds; and
16 Adopting the standard posited by the Court of Appeal in Air Nelson Ltd v Minister of Transport
[2008] NZCA 26, [2008] NZAR 139 at [43]–[54].
(d)the likelihood of executive clemency being granted.
[27] Mr Cogan also submits that he expected correspondence concerning plea agreements and the Police’s asserted grounds for not charging Mr Dotcom in New Zealand to be included, as well as correspondence with domestic agencies Mr Dotcom alleges engaged in abuses of process.
[28] Mr Cogan submits that any assertion that the Briefing Paper was the only material upon which the Minister relied in reaching his surrender decision, is not determinative as to whether discovery is required. Mr Cogan submits that it is not clear from the Surrender Decision whether the Briefing Paper is the full extent of the advice the Minister received from his officials or whether further advice was received.
[29] However, Mr Child’s evidence is that beyond these materials and certain other limited correspondence with Crown Law on minor factual points, the Ministry did not consult or correspond with any other third parties about the preparation or contents of the Briefing Paper. Specifically, Mr Child deposes the Ministry did not consult or correspond with the United States Government or prosecutors and did not obtain any diplomatic assurances. Moreover, Mr Child deposes that the Ministry did not consult or correspond with other New Zealand government agencies such as the Ministry of Foreign Affairs and Trade or the Ministry of Business, Innovation and Employment. He deposes that no other agency or party contributed to the Briefing Paper or saw it before it was provided to the Minister. Nor did the Ministry obtain any information from any other third parties to inform its preparation of the briefing.
[30] Further, Mr Cogan submits the Briefing Paper does not, for example, address relevant material to which the Ministry, and therefore the Minister, have failed to have regard in the Briefing Paper.
[31] There is no general entitlement in a judicial review proceeding to discovery of material that the Minister has failed to have regard to in preparing the Briefing Paper. Were such an entitlement to exist, it would greatly expand the scope of discovery available in judicial review proceedings beyond that which currently applies. If
material lacks relevance to the decision the Minister made, then requiring its disclosure would lack any useful purpose.
[32] Moreover, this speculative head of discovery cuts across the principle, described in Commerce Commission v Cathay Pacific Ltd, that a discovery order will not be granted where a category does not relate to a pleaded relevant issue but rather a non-pleaded issue which might be pleaded should discovery reveal documents that support such a pleading.17 As the first respondent submits, the legality of the Minister’s decision will be determined by examining the decision itself against the material which was before the decision-maker, in light of the law which bound him.18
[33] In any event, Mr Dotcom’s submission is too broad to have any practical merit as a guide to what needs to be disclosed. Of course, were Mr Dotcom to identify any relevant consideration to which the Minister failed to have regard, then disclosure, whether through the process of discovery or through Ministerial candour in providing relevant materials by way of affidavit, would be expected. However, the paradox is that, to the extent that any material has not been provided to the Minister, he and his officials and advisers assert that it lacks relevance. The difficulty faced by Mr Dotcom in making this argument is that he has not identified any specific materials (with the possible exception of the plea agreement materials to which the Minister says he does not have access) that would be relevant but were not provided.
[34] As Mr Child deposed, preparing briefing material for the Minister required officials to use their judgement about which information is sufficiently relevant to warrant being provided to the Minister or discussed in the Briefing Paper (and if so, to what level of detail). Further, those briefing the Minister had to keep in mind the need for the materials to be manageable, coherent, focused, and understandable. In Mr Child’s view, the Briefing Paper, along with the appendices, which comprised nearly 400 pages, was unusually long for a briefing to a Minister and “very close to the limit of the amount of material any busy Minister could be reasonably expected to consider in making any single decision”.
17 Commerce Commission v Cathay Pacific Ltd, above n 15.
18 Citing Save the Queen Street Society Inc v Auckland Council [2024] NZHC 1512 at [16].
[35] Of course, it remains open to Mr Dotcom to allege that the Minister failed to have regard to relevant considerations. Support for such an allegation might be based on establishing that the Briefing Paper was misleading or inadequate. If that were established, the Minister would bear responsibility if, as a result the Minister was led into a mistake and failed to take into account the true facts.19 But that is a very different concept from requiring the Minister to make discovery of matters that were outside the scope of his decision-making and the material considered in it. Mr Dotcom must have an evidential foundation before he can properly mount a challenge based on failure to take into account a relevant consideration. He acknowledges he does not yet have an evidential foundation for such a challenge but says that he needs discovery before he can do so. This approach has the hallmarks of an impermissible fishing expedition.
[36] To ensure the Briefing Paper is “fair, accurate and adequate” it is necessary for those briefing the Minister to take care to verify the information included, to disclose information known to the officials telling against surrender, to inform the Minister of any gaps in the information provided and to include all material information in the briefing.20
[37] In A v Minister of Internal Affairs, the Supreme Court emphasised the qualification inherent in the word “material”. There is no need to provide the Minister with a “tome” containing all information, no matter how limited its relevance.21 Although the “fair, accurate and adequate” standard is appropriate, I agree with Mr Hodder KC on behalf of the first respondent that the Court will only exercise its discretion to order discovery of information that is “materially relevant” to the issues for determination.
[38] I am not satisfied that Mr Dotcom has established that there is any materially relevant information within Category 1 that has not already been provided to him. As part of the process leading to the Surrender Decision, Mr Dotcom was given the opportunity to make submissions to the Minister on what he considered relevant for
19 Daganayasi v Minister of Immigration [1980] 2 NZLR 130 (CA) at 149.
20 A v Minister of Internal Affairs [2024] NZSC 63 at [147].
21 At [147].
the Minister to take into account in his decision. Mr Dotcom’s submission to the Minister is comprehensive and covers a wide range of material organised according to eight major themes. The Briefing Paper, in turn, substantively addresses each of these themes.
[39] Mr Child deposed that the Briefing Paper, including its appendices, is the full extent of advice provided to the Minister for the purposes of his Surrender Decision. The Minister did not have any follow-up questions for officials. Mr Child deposes the Briefing Paper advised the Minister not to consult any other sources and he is not aware the Minister received or reviewed any documents or information other than those provided by the Ministry in making his Surrender Decision. Mr Child deposed he has no reason to think the Minister would have consulted any other source in this case. However, this will be a matter for the Minister himself to confirm in his affidavit, yet to be provided, as part of his duty of candour.
[40] I reject the premise underlying Mr Dotcom’s submission that more documents are required to ensure that the Briefing Paper was fair, adequate and accurate. I consider Mr Dotcom’s submission that it is necessary to understand what information was within the Ministry’s control but not reflected, or not accurately reflected, in the Briefing Paper presented to the Minister to be hopelessly broad, and akin to a Peruvian Guano train of enquiry standard that has never been generally applicable in a judicial review setting.22
[41] Moreover, as Mr Child deposed, it is likely that virtually all the other documents the Ministry holds in relation to work done concerning Mr Dotcom’s extradition would be legally privileged or (to the limited extent that it is not privileged) either publicly available or otherwise known by or in the possession of Mr Dotcom. I accept it would be costly and time-consuming to collate and review each document. To require this would be disproportionate to the scope of discovery that is justifiable in a judicial review proceeding such as the present case.
22 The Compagnie Financiere et Commerciale Du Pacifique v The Peruvian Guano Co (1882) 11 QBD 55 (CA) at 63.
[42] The present case is not comparable to Air Nelson. In that case, the Court found the Minister had failed to take into account relevant considerations by the omission of significant matters in the report prepared for the Minister by officials.23 No such finding has been made in the present case. It is not appropriate to make a discovery order that speculatively assumes such a finding will be made.
[43] Mr Dotcom submits “one would expect” there to have been correspondence within the categories described above at [26]. However, the first respondent claims that no such documents exist. In any event, it is something the Minister will be able to confirm one way or the other in his affidavit in opposition to the judicial review, which is yet to be filed (or timetabled). Similarly, the Minister will be expected to address the (non) existence of documents within categories described above at [27].
[44] The Ministry advised the Minister that the Briefing Paper contained all the information the Minister needed to consider in making his decision.24 Moreover, the essence of what Mr Dotcom included in his extensive submissions to the Minister makes it clear that Mr Dotcom already has a vast knowledge of all relevant factors that have contributed to decision-making in respect of his surrender. I do not consider that he has established that his judicial review of the Minister’s decision will be aided by the additional material that he seeks. Rather, I accept that it will merely result in disproportionate work for the Ministry to comply with the additional discovery and it will very likely delay resolution of the proceeding. As Mr Hodder submitted, Mr Dotcom’s existing claims already relate to the content of the decision and can adequately be pursued with the material that Mr Dotcom already has. Giving Mr Dotcom access to the materials from the Ministry’s “cutting room floor” will not contribute to a fair hearing or materially enhance the adequacy or accuracy of the Court’s ability to determine the judicial review application.
[45] Accordingly, Mr Dotcom’s application for tailored discovery of the category 1 documents is declined.
23 Air Nelson Ltd v Minister of Transport, above n 16.
24 Ministry of Justice Briefing Paper to Minister of Justice (2 July 2024) at [3] and [110].
[46] In relation to the category 2 documents, Mr Dotcom fairly acknowledges that this category of documents may give concerns as to proportionality. As the first respondent points out Mr Dotcom has had the documents provided in response to his Privacy Act request for several years. Despite this he has not identified any particular document or information withheld from him that could have any bearing on the Minister’s task in relation to his surrender under s 30 of the Extradition Act.
[47] I accept that requiring the Ministry to re-review extensive privileged material to identify that which was withheld in relation to the Privacy Act requests would be disproportionate and serve no purpose. As Simon France J held in 2014 in relation to a similar refusal to grant discovery of information withheld by agencies under the Privacy Act, in the context of the eligibility proceeding, there is no basis at all to consider that the request is relevant to this judicial review.25 It lacks specificity and is rightly described as a fishing expedition.26
[48] Moreover, the Ministry will claim privilege over the privileged information withheld and public interest is likely to point away from disclosure in respect of documents previously withheld under the ground of prejudice to New Zealand’s security or international relations.27 I do not accept that the proportionality concerns about this aspect of the request are mitigated by the fact that the material has already been collated and reviewed by relevant agencies. Rather, I accept the first respondent’s submission that requiring the review of all documents collated as part of Mr Dotcom’s Privacy Act request would be a disproportionately substantial exercise, for which no justification has been established.
[49] Accordingly, I decline Mr Dotcom’s application for tailored discovery in respect of the category two documents.
[50]Mr Dotcom’s application for discovery against the Minister is dismissed.
25 Dotcom v United States of America [2014] NZHC 2550.
26 At [83].
27 Mr Child deposes that orders may be sought under s 70 of the Evidence Act 2006 in the event any discovery order were to be made.
Discovery against Commissioner of Police
[51] In relation to discovery by the Commissioner of Police, Mr Dotcom submits that it “strains credibility” that the two documents that have been disclosed are the only documents relied on by the Commissioner in preparing his statement of defence. Mr Dotcom submits the Commissioner should have disclosed plea agreements entered with Mr Ortmann and Mr van der Kolk.
[52] There are two objections to Mr Dotcom’s application for discovery in relation to the plea documents and correspondence relating to them. The first objection is that these documents would be privileged under s 57 of the Evidence Act 2006 which relevantly provides that:
57 Privilege for settlement negotiations, mediation, or plea discussions
…
(2)A person who is a party to a dispute of a kind for which relief may be given in a civil proceeding has a privilege in respect of a confidential document that the person has prepared, or caused to be prepared, in connection with an attempt to mediate the dispute or to negotiate a settlement of the dispute.
(2A) A person who is a party to a criminal proceeding has a privilege in respect of any communication or document made or prepared in connection with plea discussions in the proceeding.
(2B) However, the court may order the disclosure of the whole or any part of a communication or document privileged under subsection (2A) if the court considers that—
(a) the disclosure is necessary for a subsequent prosecution for perjury; or
(b) the disclosure is necessary to clarify the terms of an agreement reached, if the terms are later disputed or are ambiguous; or
(c) after due consideration of the importance of the privilege and of the rights of a defendant in a criminal proceeding, it would be contrary to justice not to disclose the communication or document or part of it.
[53] The second objection is based on the lack of necessity of any plea agreements to the judicial review proceeding established by Mr Dotcom.
[54] Turning to s 57, on behalf of the second respondent, Ms Taylor submits the purpose of the privilege over communications associated with plea negotiations is to encourage frank discussions between prosecuting authorities and defendants in criminal prosecutions with the aim of enhancing the prospect of agreement being reached concerning pleas to charges.28 Without that confidence, it is unlikely that parties to criminal proceedings will be encouraged to enter into plea negotiations.
[55] As Mr Cogan pointed out in response, the rationale for the privilege may be substantially reduced once the defendant pleads guilty and is sentenced following a successful plea negotiation.29
[56] However, as Ms Taylor replied, there is a public interest in maintaining the privilege and respecting that it endures even after the proceeding has concluded. In any event, the privilege applies in respect of Messrs Ortmann and van der Kolk, not just the Police. There is no argument that the privilege has been waived in the present case. Moreover, Mr Dotcom has not established that it would be contrary to justice not to disclose plea agreements or communications relating to them. As Ms Taylor submits, discovery of those agreements and other correspondence will not advance Mr Dotcom’s pleaded grounds of review. He has not established there is any necessity in those documents being disclosed without which he will be unable to advance his proceeding based on what is already known.30
[57] As for the pleaded grounds Mr Dotcom says justify provision of discovery of these documents, I consider that the evidential foundation for Mr Dotcom’s allegations of improper purpose (to appease the United States) being the underlying motivation in refusing to charge Mr Dotcom in New Zealand lacks an evidentiary foundation. I am not prepared to allow Mr Dotcom speculatively to try and fill that gap through this discovery application. This aspect of Mr Dotcom’s application is also a fishing expedition.
28 T v R [2020] NZCA 15 at [28].
29 At [29].
30 The position may be different in respect of any trial in the United States, where plea discussions and arrangements may be relevant if Mr Dotcom is contesting the reliability or credibility of any evidence given at trial by Messrs Ortmann and van der Kolk. This was accepted in the Briefing Paper to the Minister.
[58] Further, in respect of Mr Dotcom’s allegations of bias against the Commissioner of Police and breach of the New Zealand Bill of Rights Act 1990 (disproportionately severe punishment relative to Messrs Ortmann and van der Kolk) or that the Commissioner’s decision was unreasonable, I am satisfied that Mr Dotcom will be able to make those submissions based on what is already known by him about the arrangement entered into by his former colleagues.
[59] Accordingly Mr Dotcom’s application for discovery against the Commissioner of Police is dismissed.
Result
[60]Mr Dotcom’s application for discovery is dismissed in its entirety.
[61]Costs on Mr Dotcom’s discovery application are reserved.
Next steps
[62] Counsel agreed that following my decision on the discovery application timetabling leading up to the substantive hearing should occur. To that end, I direct the parties to file a joint memorandum with a proposed timetable no later than midday on 19 December 2024. That will allow timetable directions to be put in place before the end of this year.
McHerron J
Solicitors:
Holland Beckett, Tauranga for Applicant
Luke Cunningham Clere, Wellington for Respondents
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