HM Attorney-General v Kim Dotcom

JurisdictionNew Zealand
CourtCourt of Appeal
JudgeWhite J
Judgment Date19 February 2014
Neutral Citation[2014] NZCA 19
Date19 February 2014
Docket NumberCA420/2013

[2014] NZCA 19

IN THE COURT OF APPEAL OF NEW ZEALAND

Court:

Ellen France, Randerson and White JJ

CA420/2013

BETWEEN
Her Majesty'S Attorney-General
Appellant
and
Kim Dotcom
First Respondent

and

Finn Batato
Second Respondent

and

Mathias Ortmann
Third Respondent

and

Bram Van Der Kolk
Fourth Respondent
counsel

D J Boldt F Sinclair and M J Cooke for Appellent

P J Davison QC, W Ake and H D L Steele for first Respondents

G J Foley and L Stringer for Second, Third and Fourth Respondents

Appeal against a High Court (“HC”) decision that search warrants were invalid and that the removal of clones of hard drives from New Zealand was contrary to a direction of the Solicitor-General that items seized by held pending a decision by the Attorney-General — warrants were executed under the Mutual Assistance in Criminal Matters Act 1992 (“MACMA”) at the request of the Department of Justice of the United States — HC held that the warrants did not adequately describe the offences to which they related, did not identify what was to be seized with sufficient specificity and were defective in form — also held that s49 MACMA (custody and disposal of things seized) did not just refer to the physical hard drives seized but included their data — whether the warrants were saved by s204 Summary Proceedings Act 1957 (proceedings not to be questioned for want of form) — whether information in the arrest warrants could be used to fill out information in the search warrants — whether “things seized” under s49 MACMA referred to only to the physical items or included the cloned hard drives

The issues were: whether the warrants were saved by s204 SPA; whether information in the arrest warrants could be used to fill out information in the search warrants; and, whether “things seized” under s49 MACMA referred only to the physical items, or included the cloned hard drives.

Held:Appellate authorities established that:

  • (a) an application for a search warrant should make proper disclosure;

  • (b) a warrant had to be issued in respect of a particular offence and should be as specific as the circumstances allow and might be invalid for lack of specificity;

  • (c) a warrant containing a misdescription of the offence, but which was not otherwise misleading, could be saved by s204 SPA;

  • (d) a warrant that was in such general terms that it failed to identify with sufficient particularity the offence to which the search related would be a nullity and not able to be saved by s204 SPA;

  • (e) a warrant with defects that could not be regarded as so radical as to require the warrant to be treated as a nullity might, in the absence of a miscarriage of justice, be saved by s204 SPA;

  • (f) the court's approach should not be overly technical or “nit-picking” ; and

  • (g) a question of degree was involved, “answerable only by trying to apply a commonsense judgment” against the statutory background and with reference to the particular facts.

The question of whether a warrant was saved by s204 SPA therefore required a careful examination of the terms of the particular warrant in the context of the facts of the particular case. The issue was whether the defects in the search warrants were so radical as to require them to be treated as nullities. This was a question of degree involving a range of considerations including the relevant provisions of the authorising statute, the terms of the search warrants and how those terms would be understood by a reasonable reader in the position of the recipients; the nature of the offending alleged; the items authorised to be seized; and the factual context of the case.

The application for the search warrants provided the DC Judge with reasonable grounds to be satisfied that the search warrants should be issued, and included a copy of the request from the UD DOJ, which was itself comprehensive and provided the necessary information relating to the criminal offences in the US.

The search warrants issued by the DC were not in the prescribed form. The criminal offences in respect of which they were issued were described only in general terms and did not include any reference to the USA as required by s45(4)(b) MACMA and the prescribed form. The descriptions in App A of the categories of items to be seized under the warrants were, on their face, broad.

However the warrants were not defective on the ground that the DC Judge failed to impose conditions as to the scope of the items that might be seized and the need to return items that were not relevant. The power under s45(3) MACMA to impose “special conditions” was discretionary. Appendix A to the search warrant was as specific as could reasonably be expected in the circumstances, and no issues of legal professional privilege were contemplated.

The DC Judge was entitled to rely on the police to execute the warrants lawfully and not to seize anything that was clearly irrelevant. The Judge was also entitled to rely on the police to comply with the provisions in MACMA requiring a notice to be given to the owner or occupier of the place or thing searched identifying anything seized under the warrant and requiring everything seized to be delivered into the custody of the Commissioner.

The substantial compliance provisions of r3(3) Mutual Assistance in Criminal Matters Regulations 1993 (forms — strict compliance not necessary) was a statutory indicator that strict compliance was not required and that substantial compliance was sufficient.

A reasonable reader in the position of the recipients of the search warrants would have understood what they related to. The defects in these warrants were therefore not so radical as to require them to be treated as nullities. There was no disconnect between what there were reasonable grounds to believe might be at the properties and what the warrant authorised the police to take. This was a case of error of expression. The defects were defects in form not in substance.

The search and arrest warrants could be read together. When reading the arrest and search warrants together, a reasonable reader would have little difficulty in gathering that the offences in the search warrants were those specified in the arrest warrants and that the electronic items in App A related to those offences. If D had looked at both warrants he would have understood the nature and scope of the search warrant in which case its defects would have been overcome.

This view was reinforced by the circumstances of the execution of the search warrants. D was shown both the arrest and search warrants when the police raided his property and the police officer who gave them to him described the charges. It was clear that D would have understood from the warrants and the police explanations the offences and items that were referred to.

When considering if there had been a miscarriage of justice, the HC incorrectly focussed principally on the nature of the defects themselves rather than on the practical consequences for the person whose property or possessions were being searched. Adopting that approach in this case, the defects in the search warrants had not caused any significant prejudice. The practical consequences for D had to be assessed in light of the nature of the electronic items that were seized when the warrants were executed. It was clear that:

  • (a) No more items were seized than would have been without the defects in the search warrants.

  • (b) For practical reasons, the contents of many of the 135 electronic items seized had to be examined off site at a later time.

  • (c) Any question of any subsequent prejudice caused by alleged excessive seizure, retention of irrelevant evidence or alleged breach of s49 MACMA were separate downstream matters not caused by the defects in the search warrants.

Appeal in respect of the validity of the search warrants allowed. The warrants were consequently valid.

The specific purpose of s49 MACMA was to provide a carefully prescribed process for things seized to be “kept” in the custody of the Commissioner for a short period pending a decision by the AG as to how the thing was to be “dealt with”. If there was no direction, then the thing seized had to be returned. Clearly, once the thing was seized and delivered to the Commissioner, responsibility for the implementation of MACMA rested with the AG and not with the Commissioner.

The “thing” that had to be “kept” in the “custody” of the Commissioner included not only the physical “thing” but also its contents or in the case of an electronic item, the data contained in or on it. It was the AG and not the Commissioner who had to decide whether any copies or clones of the “thing” or its contents or data could be removed from NZ. Removal of copies was clearly within the expression “dealt with”. To interpret s49 in any other way would be contrary to the purpose of the provision and would have the effect of undermining the primary responsibility of the AG.

While the definition of “thing seized” in s3 Search and Surveillance Act 2012 now expressly excluded anything made or generated by a person exercising a search or surveillance power (for example “a forensic copy of a computer hard drive”), that Act was not in force at the relevant time and would not therefore retrospectively override this interpretation of the specific terms of s49 MACMA.

The SG's direction in the present case plainly did not authorise removal of the clones to the US. The declaration made by the HC in respect of the unlawful removal of the clones contrary to the SG's direction was upheld.

Appeal allowed in part.

JUDGMENT OF THE COURT
  • A The appeal is allowed in respect of the declaration as to the invalidity of the search warrants, but dismissed in respect of the declaration as to the unauthorised removal of the clones from New Zealand.

  • B The order made in the sealed judgment of the High Court at 1 declaring the search warrants invalid is set aside.

  • C The orders made in the...

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