Capital Letter: Why the Appeal Court upheld Dotcom search warrants

The legal tussles between internet tycoon Kim DotCom and the attorney-general are perceived by many as a test of New Zealand’s sovereignty when faced with demands from the US. Throw in the controversial surveillance by US spy agencies of Mr DotCom’s playground, the internet, and our judges are put in a delicate place.

In ATTORNEY-GENERAL v DOTCOM [2014] NZCA 19  (19/2/2014) the Court of Appeal judges Ellen France, Tony Randerson and Douglas White grasped the nettle and overturned the High Court decision finding invalid search warrants executed on Mr DotCom’s properties under the Mutual Assistance in Criminal Matters Act 1992 (MACMA) at the request of the US Department of Justice.

The latter seeks extradition of Mr DotCom and others for trial on criminal offences including copyright breach and money laundering.

The High Court ([2012] NZHC 1494, 35 TCL 29/5) had found the search warrants invalid because they were general warrants that did not adequately describe the offences to which they related and they authorised seizure of such very broad categories of items that unauthorised irrelevant material would inevitably be captured.

In a second remedies judgment ([2013] NZHC 1269, 336 TCL 21/1) the High Court rejected the attorney-general’s submission that any deficiencies in the warrants were merely technical and should be saved by the Summary Proceedings Act 1957, s 204.

It held that it “would be highly undesirable were a court to take a patch and mend approach to [such] significant defects” as a warrant is an important document, determining “the precise parameters and scope of the Police’s authority to intrude upon the privacy and property rights of individuals.”

Disagreeing, the Appeal Court drew on the 1989 Court of Appeal case of Rural Timber Ltd v Hughes that confirms that “an inadequate description of the target offending may be adequately explained by the content of the remainder of the search warrant assessed in a commonsense way in the particular factual circumstances of the case.”

An “unusual, if not unique, feature” of the present case that could not “be sensibly ignored” was the information in the arrest warrants given to the respondents immediately before execution of the search warrants that would have been understood without difficulty by a reasonable reader, let alone Mr DotCom, a computer expert.

Although not in the prescribed form, the defects in the warrants were in form not in substance, and this “really was a case of error of expression.”

The Court of Appeal also disagreed with the High Court finding in the second judgment that, even if the defects in the warrant could be cured, there was still a miscarriage of justice.

The High Court focused on the nature of the defects rather than the practical consequences for the respondents that in this case did not suffer any significant prejudice.

No more items were seized than would have been without the defects; given the estimated 150 terabytes of data the contents of many of the 135 electronic items seized had to be examined later off site, and any subsequent prejudice caused by alleged excessive seizure was not caused by the warrant defects.

The Appeal Court did however, uphold the High Court finding that removal to the United States of clones of some of the electronic items seized was in breach of a direction to the Commissioner of the Police by the solicitor-general under the MACMA.