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Appeal Court rules Dotcom search warrants valid, says cloned info shouldn’t have left NZ

UPDATE: Kim Dotcom tweeted this afternoon, "Our legal team is reviewing the rulings made by the Court of Appeal and will likely seek leave to appeal to the Supreme Court." 

LATEST: Ruling won’t scupper suit against GSCB – Dotcom’s lawyer

EARLIER: The Court of Appeal has ruled in favour of government submissions that search warrants executed during the high-profile arrest of Mega founder Kim Dotcom in January 2012 were valid, though it agreed that the police shouldn't have let cloned information leave the country.

Justices Ellen France, Tony Randerson and Douglas White granted the Crown's appeal against an order declaring the warrants invalid, saying "the defects were defects in form not in substance," according to a judgment released today.

"In our view a reasonable reader in the position of the recipients of the search warrants would have understood what they related to," the judges said. "The defects in these warrants were therefore not so radical as to require them to be treated as nullities."

The Attorney-General appealed a High Court ruling that declared the search warrants invalid by not being specific enough, by not stating the electronic nature of the copyright offence, or that the US was the nation where Dotcom was alleged to have broken the law and to where he was facing extradition.

The Appeal Court didn't agree with the Crown that the Police Commissioner was allowed to hand over cloned copies of information harvested from devices seized in the raid to the US Federal Bureau of Investigations without direction from the Solicitor-General.

"In our view, the words of the Solicitor-General's direction in the present case plainly did not authorise removal of the clones to the United States," the judges said.

"Once it is accepted that s49 (of the Mutual Assistance in Criminal Matters Act 1992) is not limited to custody of the original thing seized, but encompasses removal of the clones, the wording of the direction applied to require the Commissioner to retain 'custody and control' of the clones here in New Zealand 'until further direction' from the Solicitor-General," they said.

In that respect, the judges upheld a High Court declaration that the removal of the clones from New Zealand wasn't authorised and was unlawful.

The judges considered Dotcom and his co-accused should pay 60 percent of the costs of the Attorney-General.

The Nov. 28 hearing is part of a series of legal challenges to head off the US Federal Government's bid to extradite Dotcom and his co-accused Finn Batato, Mathias Ortmann and Bram van der Kolk to face charges of conspiracy to operate websites used to illegally distribute copyrighted content.


RAW DATA: Judgment (pdf)288.16 KB

More by Paul McBeth and NBR Staff

Comments and questions

Here comes the Court of Appeal. Every lawyer involved must be eyeing up the latest Merc or BMW.

That was the Court of Appeal ruling

So albeit I'm just a pleb. my take on this is that France, Randerson & White are saying ""the defects were defects in form not in substance," .
Next time I inadvertently and like so many fill out the complicated US immigration entry and waiver forms on the plane not exactly as prescribed, I can now moan to the uniform when barked at to go to the end of the queue and told to do it all again.
The yanks are pedants over such trivia especially when in uniform, but it seems the kiwi attitude is close enough is good enough.

Irrelevant, your Honour.

Why on earth would anyone in there right mind go to America?

Wow - "the defects were defects in form not in substance,"

So the NZ authorities can now act in this manner on any issue if the authorities believe that their intelligence has substance but may have defects

Like the IRD or police can raid anyone they feel like if in their opinion their claims have substance but their work is still incomplete

Or under current law they could just get the US intelligence service to spy on us and hopefully provide the substance or additional evidence required.
Or like in a dictatorship the Court of appeal doesn't agree with your appeal just set up an even higher authority until you get the answer you want.

Have they released enough of Dotcoms cash to allow him to appeal this ruling - unlikely as like with spoilt children the Govt wants to change the rules and the game is now not played on a level playing field.

What is happening in this country that we allow this crap to go on??

Whether you like Dotcom or not we all have processes and rights that have to be abided by

My thoughts exactly. Looks like the fundamental principles of justice in NZ are open to interpretation until the desired result by the authorities is achieved.

Thanks to the court of Appeal I can now use this defense anytime I receive a speeding ticket. "But officer I may have been doing 55km/hr in a 50km/hr area, but I was only 1km/hr or 1.85% above the tolerance level of 54km/hr. Therefore any reasonable person would be able to interpret that there were defects in my form not in substance as the margin of error was so small".

This ruling is wholly interpretative and reeks of political taint. How much faith does anyone have in the Courts, these days?

Agree wholeheartedly with your comments good doctor!....

You seem to be mis-reading the ruling. The ruling related to the wording of the seizure warrant, not the substantial issue of evidence.
Dotcom argued the wording was too broad and not explanatory enough. The Appeals court ruled the warrants were defective, but in conjunction with the arrest warrants (which were valid) and the explanations provided at the time he was fully informed as to what was being done and why.
Thus the warrants were clear enough and informative enough not to be ruled invalid.

Yes, this is a very sloppy precedent for the Court of Appeals to set, mostly for the benefit of political expediency it appears.

The cops can now issue any type of crap worded warrant they like (in fact they might as well leave it blank at this point) and as long as they claim (their word against yours without witnesses) that they "explained" to you what they were searching for, then they are good to ransack your property at their pleasure.

Another big win for the Police State ... and the judges purred contentedly as they collect their fat tax-payer funded salaries. Very poor showing, very poor indeed. Another black eye for rule of law. Hope the yanks are keeping you happy John, thanks for inviting this evil into New Zealand.

... well, we don't know what dirt the NSA has on our leaders... they sure are trying to dig up dirt on the Jerries and the Frenchies....

Russel - too bad your crony deal can't be done. But at least you'll now have time to get the full costing details on your "power policy" to all of NZ.

The only real mistake made anywhere since this man appeared on our shores was to initially grant him residency. His cost to the NZ taxpayer continues to mount.
But one should be grateful I suppose to all the theorists with home made law degrees who can give meaning to the court of appeals decision, oh is that a Tui advert?

I am very disappointed in our legal system, I always felt it was beyond reproach, where everyone was equal and the truth was paramount until this case

What ever happened to the Privy Council?

Pretty much gone, the NZ Supreme Court has taken over for the most part

Yes indeed a sloppy decision 'form over substance' - hmmmmm. Well at least we may have the beginnings of a precedent for the rest of us.

I just watched the entire video of the raid and it really dawned on me how terrifiying it would have been for anyone inside - the number of people brandishing huge automatic weapons - would've been more appropriate were Dotcom a wanted drug cartel leader.

What a horrible experience - all at the behest of the FBI. Well done NZ - a terrific display of kowtowing to your foreign master.

I usually enjoy reading all the comments however this lot is pure garbage
by folk who think they understand the law
What is really fantastic is that we have judges who are pragmatic and let us hope the Supreme Court follows the lead

Are you serous or politically motivated?

The law is designed to cover the rights of citizens not to bend towards whatever political whim one may have or a political party/Govt may have.

The law is here to protect us not use as leverage for mistakes made.

Here here, I couldn't agree more!

Right, so by your reasoning Justice Winkelmann (who probably has more experience in this case than her three, learned, male bretheren), doesn't understand the law huh? 'Tui ad anybody??

The High Court got it right and the Court of Appeal has been far too lenient in its reasoning. Search warrants are a serious infringement on our rights and it behoves the police to get it right with precision. What is the penalty for the Police Commissioner handing the clones over to the FBI without clear authority. Can this information now be used against the defendants? Whether or not we like Kim Dotcom and his co-defendants the police,apparently at the behest of the FBI went way over the top with the raid- and their paperwork was at the best sloppy

To say the warrants were in valid in form but not in substance is quite shocking. Cases are routinely thrown out of court overseas because procedures have not been properly followed.

But in this now coconut country, where some judges' decisions are in fact quite extraordinary, and where the competence of the court is now seriously questioned, it seems that it doesn't matter if you get things wrong, provided you get sympathetic judges.

And this was the same sector of society that worked to get rid of the Privy Council - possibly because so many of their own judgments were overturned?

No wonder the country is lining up behind Dot.Com. People do not like what is happening, nor politicians' noses poking into this area as with John Key and his unfortunately dodgy memory.

The Appeal Court judges' ruling comes with a tacit Wink-wink, nudge-nudge to Dotcom's lawyers, you reckon?

"There`s much more coin to be minted from the Big-boy, fellas".

This Court of Appeal ruling of form over substance stinks in the Court of public opinion. Regardless of what we think of Dot Com, he and his family have been subjected to a completely over the top and terrifying "raid", had most of his assets frozen, including sufficient funds to pay his way which of course includes his mounting legal fees. Plus a profitable business has been destroyed before any process of testing its legality. The States are hell bent on ownership/control of the nett and the sooner NZ wakes up to this motivation the better. National needs to understand what the real game is here before all our rights have vanished and the Big Fella has been "disapeared" into the US legal system

A profitable business that the United States alleges was built on the proceeds of crime. And you seem to have absolutely no problem with that. I find that reprehensible.

A US Federal Court judgement as to the legality or otherwise of Dotcom's business could have been given by now. It was and is entirely up to Dotcom. But of course that would require him to cooperate with the US Federal law enforcement authorities, something that to date he has chosen not to do.

Anonymous, your comments are truly stupid. Firstly, the US ALLEGES. Their case has not been proven. Secondly, copyright theft is not an extraditable offense - so the FBI further ALLEGES money laundering (because that is!). Thirdly, providing a means for others to potentially distribute illegal material is not an offence. If it was many other service providers (many in the US) would surely be seeing similar action brought against them. Fourthly, the US justice system is even more politically influenced than ours - albeit we are closing the gap rapidly it would seem, if this ruling is anything to go by - would you surrender yourself up to the US for trial?

You cannot destroy a business on "allegedly". If the business was making money off the proceeds of crime that is reprehensible, but we don't know that. What is truly reprehensible is that a business and livelihood was destroyed with no proof.

That you think that's entirely ok, and that Dotcom should just blithely wander over to the same country that did that (a country that has a history of holding people for long periods without trial), that's the truly scary part.

A very sad day for integrity. NZ is truly a US puppet.

The ruling demonstrates a political influence of the Judiciary that no doubt will enhance John Key's influence in the US. Perhaps a directorship within Hollywood? The sad reality is the judgement is that it marks a further erosion in New Zealanders' freedom, privacy and independence from the State.

"Appeal Court rules Dotcom search warrants valid, says cloned info shouldn’t have left NZ"

Nice touch, to toss in a bit of artifice: that it wasn't a wholesale capitulation in the rush to ingratiate themselves to their political masters.

There is something more fundamental here - natural justice for everyone. After his refusal to pay creditors but watching all the carry-ons by Kim Dotcom and his big spending ways, it beggars belief that he even dares to carry an innocent air!

This guy is a shyster who is freeloading off the hard work and efforts of others.

NZ would be a much much better place without him and his kind.

Mega's creditors have suffered as a direct result of the freezing of assets. Under NZ company law, Dotcom is not personally liable for the debt, but he has repeatedly said that he will honour it. To criticise what he spends his money on is churlish. He is rebuilding his business as a first priority, and in the circumstances I for one do not blame him for that.

Have you noticed how the press are trying to turn public opinion against him in the lead up to the extradition hearing?

Dotcom is a visionary and has built up businesses that provide secure storage and retrieval systems. These can be used for illegal purposes in the same way that a Holden can be used as a get away car. He is not the only provider of such services - but I note that the US is not taking action against any of the US based providers. Funny that!

I don't like Dotcom's style, but he like everyone else deserves justice and I'm not convinced that he will get it in NZ after this ruling, and certain that if he is shipped to the States, he will be found guilty irrespective of the evidence. Hollywood demands a sacrifice.

Say what you like but if Kim has money to throw around at luxurious pursuits and lavish parties, he can bloody well pay his creditors. End of story.

Unacceptable and goes to the heart of him as a freeloader.

I think, Sean, that your fangirling of Dotcom and your knee-jerk anti-Americanism has robbed you of balance and perspective in this case.

Anonymous (quite a common name around here!), argue the points instead of name calling and I might just take your comments seriously! Otherwise STFU!

Featured comment: "Every lawyer involved must be eyeing up the latest Merc or BMW"

For the missus.

In all this rhetoric has anyone considered that this chap could be guilty of the charges he is costing the NZ taxpayer so much as he fights against going to the USA to face the charges. Poor KDC running out of money. He says I am innocent, so go face the charges, prove your innocent and then all our money will be freed up. Not only that as it’s the USA you will have a great chance to sue for damages for your clean as the driven snow reputation. Simple words Mr KDC Prove Your Innocent. I await the conspiracy theorists saying he will not get a fair trail, phoooo.

As he refuses to face the charges one can only suspect there may be some trust in them.

JP your naivety on this subject is breathtaking.
The US via NZ have impoverished him and he lives on his own cleverness, money that he either regenerates through smart business or that which the NZ court allows. Why on earth would he front up to the Hollywood engaged legal system with no money to employ a competent defense?

So its one law for the authorities and another law for the plebs. Bet if I or another good citizen tried to run that line in the High Court or Court of Appeal I would be laughed outta Court by the same Judges.
Whilst I hold no truck for Dotcom I do object to having 2 standards and 2 definitions of laws depending on who you are. Aint good justice in my book. By heh when was the law ever anything to do with good justice.