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Dotcom search warrants declared illegal

June 28, 4.25pm: Chief High Court Judge Helen Winkelmann has ruled the search warrants used by police to seize property from Kim Dotcom's $30 million rented Coatesville mansion were illegal. 

In a judgment just released, she also rules it was unlawful for copies of Kim Dotcom's computer data to be taken offshore. 

The main points from Justice Winkelmann's judgment:

  • The search warrants used under the Mutual Assistance in Criminal Matters Act were unlawful.
  • The FBI's removal of "clones", or copies, of computer data offshore was unlawful.
  • Any clones remaining in New Zealand must stay here. 
  • The attorney-general must provide Mr Dotcom with any clones currently held by New Zealand police. 

Review ordered
Justice Winkelmann also ordered the data that was seized from Mr Dotcom be analysed to determine what is and is not relevant to the charges he faces. 

She has ordered that:

  • An independent and "appropriately experienced" High Court lawyer conduct the review.
  • Copies of electronic data containing only relevant material be provided to US authorities. 
  • All items deemed not relevant be returned to Mr Dotcom. 
  • Any copies of relevant data which are provided to the US authorities must also be provided to Mr Dotcom.
  • The auditor-general request from the US authorities the "voluntary" return of the clones removed from New Zealand. 

Mr Dotcom's lawyer, Willie Akel, would not comment on Justice Winkelmann's judgment, but he told NBR ONLINE his team are preparing for next week's hearing.

The hearing is a judicial review of judge David Harvey's decision to grant Mr Dotcom disclosure of the evidence held against him. 

NBR ONLINE asked the Crown Law Office if, in light of today's judgment, it would be reviewing its involvement in assisting the US government in the extradition process of Mr Dotcom. 

Media spokeswoman Jan Fulstow said Crown Law would not be commenting on the matter at this time. 

The Dotcoms have recently taken to Twitter. Mona Dotcom was quick to react on the social network this afternoon, calling the judgement "amazing news".

Kim Dotcom's extradition hearing is due to begin August 6.

US authorities have indicted Mr Dotcom and his co-accused on racketeering, money laundering, wire fraud and copyright infringement charges.

Most relate to Megaupload.com, which the FBI alleges generated more than $US175 million in illegal profits from advertising and premium accounts providing access to pirated movies and music.

More by Chris Keall and Caleb Allison

Comments and questions
56

Again,this case, and Hotchin's continued freeze without criminal charge, both go to show how the state - as in the Applebys' - in NZ arrogantly continues to thumb its nose at the rule of law. Surely some bureaucratic heads will have to roll based on this?

PLEASE - don't associate Hotchin's situation with Dotcom. There is just no comparison!!!

Viewed dispassionately, of course there's a comparison. Remove what you think about Hotchin, what do you think of a country that can detain someone (freeze) for coming up to twenty months without even a charge?

That's a blatant abuse of state power. If they can do it to him, they can do it to you. I explain it all on my blog link.

An idiot (or idiot's) viewpoint.

Well, to quote a small part of my linked blog post - I especially draw your attention to the second paragraph:

'I don't know Mark Hotchin, I'm neither defending nor attacking him: we simply owe it to ourselves to dispassionately understand the nature of the society we live in, and most of us would know what sort of a state practices detention without trial; well, an asset freeze with neither trial nor charge, for nineteen months, is a police state. When we smugly watch the nascent protests against Putin in Russia, and draw the obvious conclusions about that state, we are all missing the jackboots standing inside every room in New Zealand.

More and more I ask myself how can this happen? Every NBR and interest.co.nz thread about Hotchin is full of personal vitriol against the man, with no one seemingly able to grasp the desperate principles underneath his frozen life. I suspect it just shows how slavish as a society we have become behind the IRon Drape, in which the unprincipled hate of people laughing at the state-built gallows of their own lives, is part of the course in a country where a vigilante TV show consistently tops the weekly ratings. [Fair Go].'

Do you remember the story about a straw in the eye of others ?

Seriously, the arrogance is in US side, not NZ. Hopefully there are laws to protect us from US.

Good to see there is some basis for the concerns many of us have had on the merits of aiding some well connected US commercial interests use the criminal law against this man. The standing of the New Zealand police and other authorities will be even more diminished for not standing up to these overseas interests before now.

Well well what a surprise ,gee our Law enforcements are doing a top job , what with Tama Iti and his mates getting a slap on the buttocks and now this they look like a bunch first timers !

It's got nothing to do with the Police. They did as told... DoJ issued the warrants.

@ David Hillary
Well said Sir! Very well said.
And we at least have the demonstration that the Judiciary, here is an independent arm not subjugated by Govt. cronies.
God defend our Free Land!

I almost optimistically like to think the NZ bureaucrats had a secret plan all along to use the courts to tell the USA to stop playing bully boy.

But then I remind ourselves how smart our bureaucrats are, and that theory falls apart.

Phew, thank goodness you came to your senses! Attributing any sort of intelligence to the Bureaucracy is surely going too far!

Wozniak's reported comment in the Herald today summed it up very nicely and went some way I hope to penetrating the Pea Brains that run this country.

I am going to party like it 2099 she Dotcom is finally and entirely appropriately, acquired of any wrong doing. I am then looking forward to the compensation case that ill follow.

yep - and u thing railways is gona b govt's bigger loss; boy o boy

Sounds like Judge Winklemen H is due an invitation for a swim and strawberry cupcakes.

I'm livid, that through the gross incompetence of Crown Law and the NZ Police, my hard earned taxes are going to be used to compensate Dotcom et al. I'm also convinced that despite his denials, Key was well informed about all matters leading up to the raid. Heads had better roll and quickly. Que the the Keystone Cops. It would be funny if it weren't so damn serious.

not key stone but rotten right through our public secter remember the cadets of sixtys seventys

If the warrants were illegal shouldn't everything be returned. Or have they remedied the warrants after the fact?

Imagine the quantum of damages this action has inflicted on this business - hope he sues them all for this action!!

This might also mean with don't get a Free Trade Deal with the USA. The one where they get everything they want and we lose our Sovereignty.

We'll be an international laughing stock over this.
No wonder Assange would rather repair to Ecuador than risk the Swedes being as craven to the US authorities as NZ is.

NZ is already a world leading international laughing stock.

1. World leaders in emissions scamming.

2. International political Brown nosing up the date of the US all to sacrifice NZ's sovereignty with a trans pathetic-new-world-dictatorship-sorry-partnership

Guess we need those asset sales after all - to pay for the legal fees and Dotcom's compensation that this decision will probably require.

The U.S. and N.Z. conspired to destroy Megaupload, seems like some civil conspiracy complaints are in order.

what about the complaints on banks sorry rather hunt drug scum wake up kiwi

Stock up on popcorn. Watching the vids of the raids on You Tube should be entertaining

any excuse for those dudes to get there hands on automatic weapons and live out there 'call of duty' alter egos. the footage is gona be funny. "get down Soap, get down!" "thanks mate, you saved me back there" butter or non-salted? I'm going down to the supermarket.

Be relieved that no one was shot by the hyped-up Teenage mutant ninja turtles.

OMG this has played out exactly as expected - this government is a complete joke. Some reporters need to find out which political turkeys were behind this fiasco? No doubt Dotcom will rightfully seek substantial damages for the fact that his business was illegally shutdown by the NZ government and let's not forget he was sent to jail! Heads should roll down in Wellington especially that of our populist leader... and p.s. Dotcom for Prime Minister - yeahh

The shutdown of the website was by the FBI. The servers were hosted in the USA. Although it was NZ action that froze his bank accounts.

illegal warrants, illegal seizure of evidence that now must be excluded from the case.

I wonder how long before the courts dismiss the extradition order and then Dotcom sues the NZ Police for his lost earnings which would translate to oh tens of millions of dollars at the least.

what a farce.

Actually its NZ Court that are a laughing stock. A leading UK legal publication has said that because we dont have specialist Judges the chances of getting an informed and equitable outcome in highly specialised cases in NZ is very low. The Supreme Court and its leader was singled out for special mention as to bizarre findings in some cases.
Bring back the Privy Council.

Hello there, Mr. Dodd.

That was a really good troll, I have to admit.

agreed. problem we have and poor kim has is this countrys politics are rotten tto the core police justice in a country where you get less for murder rape child molestering than you do for doin drugs sick .john banks they have more on him than they did on me i got no bail and 10 years on top of the remand .for what being into my drugs.. Where is the police investigation into banks oh sorry we gotta get ths law change just hang off abit budy.or we cant get our fingers on those assets money trees our core infristructure. Kim.com has done more for this country than banks key brash douglas or any of them.kim for rodney any day.

At this stage, only the declarations about the illegality of the search warrants and the transfer of the cloned data will issue. Paragraph [147] of the judgment states:

"I am not at this point prepared to make the remaining orders sought. Given the extent of the challenges, and the nature of my findings, I require to hear from counsel as to the appropriate remedy or remedies before making any order."

The Attorney General has too be held responsible for this mess.

Clearly the police raid and asset grab were ill conceived and OTT based on what was seemingly covered by the warrant. There would appear to be little doubt that this is the fault of NZ Police. It remains to be seen whether and to what extent government bureaucrats must also take some responsibility for this. However, it seems to me that the US is the one responsible for shutting down the Megaupload site and thus (if this also proves to be an unjust use of government powers) the majority of civil damages must surely rest with it.

The Police have not quite excelled themselves to such an extent, since the "body in the boot" Baby Pumpkin case. Their judgement is risible as it is laughable. All macho in image, but no "mucho" in common sense.

dose that mean our police force is illegal, if it acts against its own law? maybe ill go and get pulled over just to start a legal argument.

I see were too p**sed off to.year sarcasm

Pretty clear someone has reign the in the cops and the other attack dogs of the state ... this is still a free country ... right?, right?

I guess, you can always argue it's fair, that: if our criminal gangs have American pit bull terriers, then, U.S. law enforcement agencies have NZ lapdogs.

Most of the comments posted are pathetic, if not banal. If you actually read the full judgement, it says (1) the search warrant didn't meet the requirements of the law in NZ, and so was illegal (2) the provision of the information from the search to the FBI was unauthorised under NZ law, and was therefore illegal. The judge made no findings beyond that, but invited counsel to make submissions. The interesting thing to me is that, at the critical point in all the Police and Crown Law activities, the key Police and Crown Law people "went on leave". A man's livelihood and freedom are potentially on the line, and our government officials involved go on leave!!!

This would never have happened under PM Helen Clark's watch. And the so called 'Free Trade Agreement' the U.S. dangles like a carrot is total BS. Look what they did here in Australia. FTA - a one way street so the U.S. can rape and pillage your nation. Time you guys took a stand....before it's too late. Then again after the Dotcom fiasco - seems it may be too late already. The U.S. is now a despot nation where the rich keep crushing the middle, low and welfare class - surely the time is at hand for these UNCITIZENS to take to the street and unleash their fury. I smell an UNCIVIL war brewing......tear down the gates of the GATED Communities. Rise up en-masse ....stop drinking the cool-aid people.

This case has nothing to do with FTAs or politics. It arises out of NZ legislation passed in 1992, to implement UN Resolution 45/117 of December 1990, which obliges all countries to provide mutual assistance in executing warrants for search and seizure related to actual or alleged crimes. The situation would have been no different under Helen Clark as PM. Leave the politics out of it.

Sorry Ferguson. Guess you are right then. It just seems we're all getting just a little too frightened. The walls are closing in around us illegal file sharers. We're running out of space. I lay awake at 2am waiting for the knock on my door. Maybe I should just be grateful there are bigger fish to fry like Dotcom, Assange et al. P.S. - It has everything to do with politics and corporate greed.

So called free trade tpp it will be interesting if we can allow there war ships or have we done away with the requirment that they declare wether they are nuke or carry nuke wepons has this being covertly slipped through with out the public or other partys being aware .

In some states in the US, local elected Sherrifs would actually protect their own citizens from unlawful arrests such as this.

A lot of people here seem to dumping on the NZ Police. Why? Surely the warrant they used to "search and seize" was signed/okayed by a judge? So shouldn't the beef be with that judge?
Seems to me all we have here is one judge disagreeing with another judge? Which one is right?? Nothing I've read so far tells me anything about dotcoms guilt or innocence. That is still to come.

wrong there mr morrison a warrant today can be signed of by the deputy court registra that could be a 20 year old with no real knowlage of law but have good office skills . remember one the final decisions of the privy council was that the that the newzealand court of appeal was only hearing cases that the registra considerd where worthy of appeal . look what happened to the privy council . police state for certain along with the war criminals usa aus and england

quite correct, and not only be a 20 year old with no knowledge of the law but could even be a female.

sorry 20 year person

The people are dumping on the police beause they are a joke. The sending in of helicopters, the forced entry, the numbers involved in this ridiculous OTT operation, which is over a commercial dispute re copyright infringement. The cops are, by their actions, doing their damnest to appear as thick as two short planks.

Just heard a great idea on 1ZB
Dotcom for Mayor !

Don't be silly, DotCom's got more sense !!

So who said that the search warrant was signed off, "by a deputy court registra"(sic) and when, where was it said???

I would not like to be on the end of this but at least it would be quick and we could all move on.addicting games