The ongoing saga over the attempted extradition from New Zealand of Kim Dotcom continues to wend its way through the New Zealand courts with a Court of Appeal judgment showing the 2012 raid was in fact legal.
The removal of information to the US by the FBI, seeking to work with New Zealand authorities to have the alleged copyright pirate extradicted to the United States to face a variety of federal offenses, amounted to an unauthorized breach.
The Stuff.co.nz websiteDotcom’s legal team was reviewing the rulings, and would likely seek leave to appeal to the Supreme Court over the validity of the warrants, the internet tycoon’s lawyer Ira Rothken said.
Police executed search warrants on the properties of Dotcom and computer programmer Bram van der Kolk on January 20, 2012, seizing 135 electronic items including laptops, computers, portable hard drives, flash storage devices and servers.
In a judgment released today, the Court of Appeal said the warrants were executed at the request of the United States Department of Justice which is seeking the extradition of Dotcom, van der Kolk and others to face trial on a number of charges including breach of copyright and money laundering involving “substantial sums of money”.
The High Court ruled last June the search warrants executed on Dotcom’s mansion at Coatesville in Auckland’s rural north, were invalid because they were not sufficiently specific.
Justice Winkelmann ruled the search warrants “did not adequately describe the offences to which they related” and “authorised the seizure of such very broad categories of items that unauthorised irrelevant material would inevitably be captured”.
No offence was identified in the warrants which merely referred to “breach of copyright” – an offence in the United States, but there is no criminal offence of breach of copyright in New Zealand.
The warrants also did not stipulate which country’s laws the alleged offence was committed under, Justice Winkelmann found.
The other defects went “to the heart of the warrants and could not be properly categorised as minor”, she ruled.
The attorney-general appealed this decision, acknowledging the search warrants were “far from perfect”, but that leading authorities required the court to adopt a “common-sense approach taking into account the particular circumstances of the case”.
In its judgment today, the Court of Appeal said that while the warrants were defective in some respects, the deficiencies were not sufficient to mean they should be nullified.
Dotcom and the other respondents would have understood the nature and scope of the warrants, especially in light of their arrest warrants – which were not defective – and the explanations given to them by the police when the properties were searched, the Court of Appeal found.
In these circumstance, no miscarriage of justice occurred.
“[We] are satisfied that the defects in the search warrants have not caused any significant prejudice to the respondents beyond the prejudice caused inevitably by the execution of a search warrant,” the Appeal Court judgment said.
In relation to the electronic information, the court said the police wrongly permitted the FBI to take to the United States copies of some of the electronic items seized in the raid .
In June the High Court ruled the removal of the copies of the electronic items was in breach of the solicitor-general’s direction to the commissioner of police that the items were to remain in the commissioner’s “custody and control” until further direction.
The police and Crown Law were concerned there should be a register that clearly identified every item and document seized, and Dotcom had indicated he would file judicial review proceedings challenging the search warrant, the Court of Appeal said.
The solicitor-general, acting on behalf of the attorney-general, issued a direction on February 16, 2012, that the items seized were to remain in the custody of the Commissioner of Police.
Despite the direction, forensic copies of some of the electronic items seized during the searches were made by the FBI and taken by the FBI back to the United States in March 2012.
The Court of Appeal today agreed with the High Court’s determination that the removal of the copies of the electronic items was not authorised, and the commissioner had no power to deal with the items by permitting copies of some of them to be removed by the FBI to the US.
The Appeal Court dismissed the attorney-general’s appeal on that matter, and held the removal was unlawful and contrary to the solicitor-general’s direction.
None of the other issues relating to Dotcom currently before the courts were dealt with by the Court of Appeal’s judgment today.