[Full judgment: Dotcom_April_Judgment.pdf]

DOTCOM v ATTORNEY-GENERAL [2013] NZHC 1269 [31 May 2013]

IN THE HIGH COURT OF NEW ZEALAND

AUCKLAND REGISTRY
CIV-2012-404-001928

[2013] NZHC 1269

UNDER the Judicature Amendment Act 1972
IN THE MATTER OF an application for judicial review and application for orders for interim relief pursuant to s 8
BETWEEN KIM DOTCOM

First Plaintiff
AND FINN BATATO

Second Plaintiff
AND MATHIAS ORTMANN

Third Plantiff
AND BRAM VAN DER KOLK

Fourth Plaintiff
AND ATTORNEY-GENERAL

First Defendant
AND THE DISTRICT COURT AT NORTH SHORE

Second Defendant

Hearing: 15, 18 April 2013
Counsel: P J Davison QC, W Akel & R Woods for first plaintiff

G J S R Foley for second, third and fourth plaintiffs

K P McDonald QC and D J Boldt for first defendant
Judgment: 31 May 2013

JUDGMENT OF WINKELMANN J

This judgment was delivered by me on 31 May 2013 at 1.00 pm

pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

A. Introduction

[1] In June 2012 I issued a judgment upholding the plaintiffs’ challenge to the validity of search warrants and related searches (the warrants’ judgment). The warrants had been issued by the District Court and executed by Police in January 2012 at addresses associated with the first plaintiff, Mr Dotcom, and the fourth plaintiff, Mr van der Kolk. Assets of all four plaintiffs were seized during the course of those searches. This judgment is concerned with the appropriate relief to be granted to the plaintiffs in light of those findings.

[...]

I Orders

[65] I therefore make orders in the following terms:

(a) An order by way of declaration that the MACMA search warrants were unlawful;

(b) In respect of items that have not yet been cloned:

(i) An order that none of the items seized, nor copies or clones thereof, remaining in New Zealand be permitted to leave New Zealand or be accessed in any way other than in accordance with the processes set out in paragraph (b)(ii) below, subject to any further order of the Court;

(ii) An order providing for the following process to be undertaken at the cost of the Police: [I do not by this preclude the Police recovering those costs from the United States authorities. ]

1. The review of all items seized, including the contents of digital storage devices, for the purpose of identifying irrelevant material;

2. Items containing only irrelevant material are to be returned to the plaintiffs;

3. In respect of items identified as mixed content devices, two different clones must be prepared – one complete clone to be provided to the plaintiffs and one “disclosable” clone, with any personal photographs or film deleted, to be provided to United States authorities after the plaintiffs have received their clone;

4. In respect of items containing only relevant material, clones must be provided to the plaintiffs before a clone is provided to the United States;

(c) In respect of items which have already been cloned:

(i) An order that those clones created by the FBI and currently held by the Police (the existing clones) will be provided to the plaintiffs upon receipt of encryption passwords;

(ii) In respect of clones that have already been sent to the United States and the original devices that were cloned:

1. An order by way of declaration that the removal of clones from New Zealand was contrary to the Solicitor-General’s direction to the Commissioner of Police dated 16 February 2012, was not authorised in accordance with s 49 of the MACMA, and was accordingly unlawful;

2. An order requiring the Police to provide confirmation in writing to the plaintiffs identifying those items the clones of which have been removed from New Zealand, and confirming whether or not the existing clones are effectively duplicates of the clones removed from New Zealand;

3. An order requiring the examination of the original devices that were cloned. If any of these devices are found to contain no relevant material, they are to be returned to the plaintiffs and the Police are to request the United States authorities to destroy clones of that device, and all material derived from that clone. The Police are to provide a copy of this judgment to the FBI so that they are aware of this possibility.

[66] A further issue may arise in respect of those clones which have already been sent to the United States if the examination of the original devices reveals that those devices contain personal photographs or film. It is my expectation that the FBI will not retain that material.

[67] I reserve leave for the parties to seek any directions necessary to give effect to the orders above.

[68] I did not hear the parties on the issue of costs, though the plaintiffs have signalled that they will seek indemnity costs. I reserve leave for the parties to file memoranda, the plaintiffs within five working days of the date of this decision, and the Police within a further 10 days.

[Full judgment: Dotcom_April_Judgment.pdf]

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