Dotcom rages against Police decision not to prosecute GCSB - but lawyer says it's no surprise

Kim Dotcom is raging against the Police decision not to prosecute the GCSB for illegally intercepting his communications.

Police investigated the spy agency following a complaint laid by Green Party leader Russell Norman.

They found that while  GCSB staff did commit the act prohibited by  Section 216B of the Crimes Act (1961), they did not have the necessary intent to satisfy the elements of the offence and be considered criminally liable. The investigation was independently reviewed by senior barrister Kristy McDonald QC, Police say (Ms McDonald has acted for the Crown in its defence of actions related to the January 20, 2012 raid on Kim Dotcom's mansion).

"If the test is 'lack of criminal intent' why don't they drop the case against me and unfreeze my assets? I certainly had no criminal intent when third parties shared copyright infringing material on Megaupload," Mr Dotcom tells NBR ONLINE.

"It's one law for them and another law for us. This decision smells like conflict of interest and cover-up," he says.

"I didn't expect anything but a white wash. It's the Police investigating the Police," he says.

"We need a change of government at the next election to find out the truth. John Key, Chris Finlayson and their obedient apparatus of prosecutors, spies and law enforcement won't be good for anything but cover-up and spin."

Wellington barrister John Edwards was not surprised by the decision, either, but more from his knowledge of prosecution procedure.

"It seems clear from the information available that the GCSB did 'intentionally intercept' the communication, and therefore met all the elements of the offence [under Section 26B of the Crimes Act 1961]," Mr Edwards tells NBR ONLINE.

"However, it is always open to a prosecuting authority to exercise a discretion not to prosecute, even when the elements of an offence appear to have been established, and there are guidelines from Crown Law which should be taken into account when exercising that discretion.  It is not a surprise that the Police have chosen not to prosecute."

The Police and GCSB are themselves not out of the woods. In March, the Court of Appeal confirmed Kim Dotcom could sue both organisations for their roles in the bungled, illegal surveilliance and raid on his mansion.

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EARLIER: Police say no criminal charges will be laid against any person regarding the allegation that GCSB unlawfully intercepted the communications of Kim Dotcom.

The investigation arose from a complaint to police in October 2012 by Dr Russel Norman MP alleging illegality of the interceptions.

This followed a letter from the Inspector-General of Intelligence and Security to the Prime Minister dated September 27, 2012 in which he concluded the actions of GCSB in relation to Mr Dotcom and Mr Bram van der Kolk were not lawful. 

Detective Superintendent Peter Read says the complaint was considered against Sections 216B, 216C and 107 of the Crimes Act (1961):

"A thorough investigation was undertaken which included interviews with staff from both GCSB and the Organised Financial Crime Agency New Zealand (OFCANZ), plus consideration of all relevant documentation," said Mr Read.

The investigation has itself been reviewed by senior barrister Kristy McDonald QC to provide a further level of independent oversight.

"It was established that only one communication relating to Mr Dotcom had been intercepted in breach of the provisions of section 216B," Mr Read says.

"While GCSB staff did commit the act prohibited by section 216B of the Crimes Act 1961, they did not have the necessary intent to satisfy the elements of the offence and be considered criminally liable."

No prosecution could be brought under Section 216C because no disclosures of communications could be established in breach of this section.

"While there is no criminal liability, police have identified a number of shortcomings in the handling of the interception requests," Mr Read says.

The investigation concluded that OFCANZ had more accurate and detailed information that should have been provided to the GCSB.

"It is also apparent that GCSB had an incorrect understanding of the Immigration Act 2009 and how it related to the GCSB Act.  GCSB staff also did not follow their own internal processes in actioning the OFCANZ requests," Mr Read says.

"Police will now consider a number of recommendations made by the investigation team to improve processes between police and the GCSB."