“I accept that cost and effort will be involved, but it is cost and effort that arises from the need to deal with the material in a lawful manner" – Chief High Court Judge Helen Winkelmann.
Police have been ordered to sort through all items seized from Kim Dotcom’s home in the January 2011 raid and return material, such as digital photos or films, not relevant to the FBI’s case against him.
The orders, just released by Chief High Court Judge Helen Winkelmann, have to be carried out at the police’s own cost.
Clones of hard drives that have already been sent to the US, where authorities want to charge the internet mogul for copyright infringement and money laundering in relation to his Megaupload website, have been ordered to be returned if they carry personal material.
And where items contain material relevant to the case, clones must be given to Mr Dotcom and his three co-accused before they are sent to the US.
Justice Winkelmann’s orders follow a two-day remedy hearing at Auckland High Court last month.
Having earlier determined that that aspects of the police search and seizure operation at Mr Dotcom’s rented mansion in Coatesville, north of Auckland, was illegal, Justice Winkelmann was dealing with the appropriate relief to be granted to Mr Dotcom.
Mr Dotcom wanted access to all the material seized and irrelevant material returned.
Police said any invalidity or illegality in the search was technical in nature only, so Mr Dotcom had suffered no prejudice and the relief he sought was difficult and expensive to provide.
However, Justice Winkelmann said deficiencies in the warrants, and therefore the searches, were more than merely technical.
“The defects in the warrants were such that the warrants were nullities.”
Justice Winkelmann said because a miscarriage of justice had resulted, she did not have to exercise her discretion to refuse relief.
“The warrants could not authorise the permanent seizure of hard drives and digital materials against the possibility that they might contain relevant material, with no obligation to check them for relevance.
“They could not authorise the shipping offshore of those hard drives with no check to see if they contained relevant material. Nor could they authorise keeping the plaintiffs out of their own information, including information irrelevant to the offences.”
Justice Winkelmann concludes the appropriate remedy is for police to conduct the sorting exercise they should have long since undertaken.
The sorting exercise will need to be carried out in New Zealand, where the material remains subject to the jurisdiction of the New Zealand courts.
“I accept that cost and effort will be involved, but it is cost and effort that arises from the need to deal with the material in a lawful manner.”
She asked police to inform the FBI of her orders.
