23 December 2014
MEDIA RELEASE – FOR IMMEDIATE PUBLICATION
KIM DOTCOM & ORS v HER MAJESTY’S ATTORNEY-GENERAL
(SC 25/2014) [2014] NZSC 199
PRESS SUMMARY
This summary is provided to assist in the understanding of the Court’s judgment. It does not comprise part of the
reasons for that judgment. The full judgment with reasons is the only authoritative document. The full text of the
judgment and reasons can be found at Judicial Decisions of Public Interest www.courtsofnz.govt.nz
The United States of America seeks to extradite Mr Dotcom and the other appellants to face trial on counts relating to
racketeering, copyright infringement and money laundering arising out of their involvement in the Megaupload website.
The United States requested New Zealand’s assistance under the Mutual Assistance in Criminal Matters Act 1992. New
Zealand police obtained search warrants in respect of three addresses occupied by or associated with Mr Dotcom and
another appellant. On 20 January 2012, police searched those addresses and seized items belonging to the appellants,
including computers and other electronic equipment. Immediately before executing the search warrants, the police
arrested the appellants pursuant to provisional arrest warrants issued by a District Court Judge on the application of
the United States.
The appellants brought judicial review proceedings challenging the validity of the search warrants. They were successful
before the High Court. The Court of Appeal allowed the Attorney-General’s appeal. The appellants appealed to the Supreme
Court.
The appellants submitted that the search warrants were not valid because they were not issued in the form prescribed by
the Mutual Assistance Act and regulations. The appellants said the search warrants inadequately described the offences,
under United States law, to which they related. As well, the search warrants were overbroad in their description of the
material to be seized, a defect that was exacerbated by the absence of any conditions as to the sorting of the seized
material. The warrants purported to authorise the seizure of computers and other electronic equipment but made no
provision for dealing with irrelevant material stored in them.
The Supreme Court, by majority comprising McGrath, William Young, Glazebrook and Arnold JJ, has dismissed the appeal.
The Chief Justice has dissented.
The majority of the Court has decided that, although the search warrants were deficient in their description of the
offences to which they related, these defects did not result in any miscarriage of justice to the appellants. While the
search warrants did not specify that the offences were against United States law, or that the offences were punishable
by two or more years’ imprisonment, this did not cause any significant prejudice to the appellants. Taking the
surrounding circumstances into account, particularly the explanations given to the appellants by the officers before
beginning the searches and the contents of the arrest warrants that were executed immediately before the searches began,
it was clear that Mr Dotcom and the other appellants were given the relevant detail about the offences to which the
search warrants related.
Accordingly, the search warrants were valid by virtue of s 204 of the Summary Proceedings Act 1957, which provides that
no warrant shall be held invalid by reason only of a defect or irregularity in form unless the Court is satisfied that
there has been a miscarriage of justice.
The majority of the Court has found that there was no error in relation to the breadth of the search warrants or the
absence of conditions. Although special privacy concerns are engaged where a computer is searched, the material before
the Judge who issued the search warrants set out the basis for the police’s belief that the computers and other
electronic items would contain material relevant to the alleged offending. The warrants made specific reference to
computers and other electronic devices and it was implicit that search would follow seizure of these. Despite the need
to take the computers offsite to search their contents, it was not necessary for the issuing Judge to include conditions
in the warrants. If police acted unlawfully in searching the computers’ contents for relevant material, that would be
addressed in the normal way.
Looking at the matter overall, the majority has concluded that, although the warrants could have been drafted more
precisely, the appellants were reasonably able to understand what the search warrants related to. Any issues relating to
the way the search of the computers was conducted or the handling of irrelevant material should be addressed through
other processes. In accordance with the views of the majority, the appeal has been dismissed.
ENDS