Kim Dotcom v HM Attorney-General

• Jurisdiction: New Zealand
• Judge: Elias,McGrath,William Young,Glazebrook,Arnold JJ,Arnold
• Judgment Date: 23 December 2014
• Neutral Citation: [2014] NZSC 199
• Docket Number: SC 25/2014
• Court: Supreme Court
• Date: 23 December 2014

Between

Kim Dotcom

First Appellant

Finn Batato

Second Appellant

Mathias Ortmann

Third Appellant

Bram Van Der Kolk

Fourth Appellant

and

Her Majesty's Attorney-General

Respondent

[2014] NZSC 199

Court:

Elias CJ, McGrath, William Young, Glazebrook and Arnold JJ

SC 25/2014

IN THE SUPREME COURT OF NEW ZEALAND

Appeal against the finding of the Court of Appeal that search warrants issued in respect of the appellants were valid notwithstanding that the warrants were, on their face, too broad and were defective in a number of respects — search warrants were issued following a request by the United States of America for assistance under s43 Mutual Assistance in Criminal Matters Act 1992 (Assistance in obtaining article or thing by search and seizure) — the warrants were used to seize computer hard drives which were removed for cloning — the computers contained information that was not relevant to the charges against the appellants — the warrants failed to specify some of the information they were required to contain — whether the search warrants were invalid and a nullity; whether the warrants were saved by s204 Summary Proceedings Act 1982 (now carried over into s379 Criminal Procedure Act 2011 (Proceedings not to be questioned for want of form).

Counsel:

P J Davison QC, W Akel and H D L Steele for First Appellant

F Pilditch for Second Appellant

G J S R Foley and L F Stringer for Third and Fourth Appellants

D J Boldt, F R J Sinclair and M H Cooke for Respondent

JUDGMENT OF THE COURT

• A The appeal is dismissed.

• B The appellants are jointly and severally liable to pay costs of [$35,000] to the respondent.

REASONS

	Para No
Elias CJ,	[1]
McGrath, William Young, Glazebrook and Arnold JJ	[68]

Elias CJ

1 In issue in the appeal is the validity of search warrants granted by the District Court at Auckland on 19 January 2012 under the provisions of the Mutual Assistance in Criminal Matters Act 1992. The Police had been authorised to apply for the warrants by the Attorney-General following a request by the United States of America.

2 Before authorising the Police to seek warrants, the Attorney-General was required by the legislation to be satisfied that there were reasonable grounds for believing that in the premises identified in the warrant application there would be evidence in respect of offences alleged to have been committed in the United States punishable by imprisonment for a term of 2 years or more. 1 No issue arises as to whether this condition was met.

3 Rather, it is claimed that the warrants as issued by the District Court were invalid because substantively defective. The defects in the particularity with which the offences and the material authorised to be seized were identified are said to make the warrants general warrants which are bad in law. They authorised search and seizure of material likely to include that which was irrelevant and private. No conditions such as might have permitted the court to supervise sorting for relevance were imposed.

4 The Attorney-General acknowledges deficiencies in the warrants but says they are not such as to make the warrants general and invalid. He maintains that the deficiencies are technical ones giving rise to no miscarriage of justice in the circumstances (including the other information available to the appellants at the time the warrants were executed).

5 On that basis, the Attorney-General says that the Court is obliged by s 204 of the Summary Proceedings Act 1957 to treat the warrants as valid. Section 204 is a

provision of general application to criminal processes. The section, as then applicable, 2 provided:

204 Proceedings not to be questioned for want of form

No information, complaint, summons, conviction, sentence, order, bond, warrant, or other document, and no process or proceeding shall be quashed, set aside, or held invalid by any District Court or by any other Court by reason only of any defect, irregularity, omission, or want of form unless the Court is satisfied that there has been a miscarriage of justice.

6 The appellants were successful in the High Court, where Winkelmann J held that the warrants were substantively defective and amounted to general warrants. 3 She deferred the question of relief to be argued at a second hearing. At it, the Crown raised the application of s 204 of the Summary Proceedings Act, which had not been raised at the initial hearing to determine the validity of the warrants. Winkelmann J pointed out that reliance on s 204 went to validity and dealt with the submission on s 204 on that basis. 4 In the second judgment, she held that the substantive deficiencies in the warrants she identified were not susceptible to the saving provided by s 204. 5 In case wrong in that conclusion, she concluded further that, in any event, the deficiencies gave rise to a miscarriage of justice. 6 Winkelmann J made orders for the sorting of irrelevant material from material relevant to the charges and the return of irrelevant material to the appellants. She also made orders that the appellants were to be provided with copies of relevant material which was retained, on their provision of the encryption passwords. 7

7 The judgment of the High Court was overturned on the appeal of the Attorney-General to the Court of Appeal. 8 The Court of Appeal accepted that the warrants were, “on their face”, too broad and were defective in a number of respects. 9 It considered however that the defects in the warrants were not “so radical

as to require them to be treated as nullities”. 10 The validity of the warrants fell to be considered in the “factual context” provided by their execution, in which the appellants had also been served with arrest warrants which provided further information than was contained in the search warrants. 11 The Court emphasised that the imposition of conditions on the warrants was a matter of discretion and considered that it was unnecessary to impose conditions in circumstances where there was no suggestion that the material authorised to be searched and seized was the subject of privilege. Because it held that the defects did not in themselves render the warrants nullities, the Court of Appeal took the view that they fell within the saving provision of s 204

8 As appears in the reasons given below, I have come to the conclusion that the High Court was correct to hold the warrants to be general warrants which are invalid. Failure to specify the offences and the materials authorised to be seized with sufficient particularity to ensure that what is seized is properly connected to the offending and does not include material which is irrelevant and private cannot be characterised as no more than “want of form”, the subject with which s 204 and similar statutory slip provisions are concerned. That was also the conclusion of the Law Commission in its recent report on search and seizure. 12 It took the view that s 204 and comparable provisions do not excuse deficiencies in warrants which are not properly characterised as “minor non-compliance with technical aspects of the warrant requirements”: 13 “substantial compliance with the statutory requirements is absolutely essential in any search regime that aims to effectively control the exercise of law enforcement powers”. 14

Search warrants are judicial process

9 Search warrants are judicial authority to do something otherwise against the law. It is part of the rule of law and fundamental rights protections under the New Zealand Bill of Rights Act and the common law that such intrusions are authorised in advance, rather than being justified afterwards. Such warrants must show the nexus

between what may and may not be searched or seized and the specific offence. The issuing officer must ensure that their scope intrudes upon the protected right no more than is necessary to achieve the legitimate social interest in obtaining evidence linked to an identified offence

10 Some of the acknowledged defects in the warrant were defects in form. They include the use of the Summary Proceedings Act search warrant prescribed form rather than the form prescribed under the Mutual Assistance in Criminal Matters Regulations 1993. Provided that the authorisation is sufficiently particularised to offences and evidence connected with them, such defects in form may be immaterial and precisely the want of form s 204 permits to be overlooked unless giving rise to a miscarriage of justice. I am not concerned with these technical deficiencies and regard them as something of a red herring. They were not relied on by Winkelmann J and were not pressed in argument on appeal to this Court. The appeal is concerned, rather, with the deficiencies of substance which undermine the validity of the authorisation contained in the warrant.

11 The appeal raises questions of how electronic data is properly to be treated when search and seizure is authorised. This is a topic that is exercising courts in a number of jurisdictions as reliance on electronic media has swamped case law developed for paper-based record-keeping and communications. As it has transpired, the search in the present case obtained something like 150 terabytes of data, accessed through more than 135 computers and electronic devices seized in reliance on the terms of the warrant. It is now acknowledged that a substantial amount of this data, perhaps as much as 40 per cent, was irrelevant to the offences charged. Some of it was personal and private. A direction by the Solicitor-General that any items seized were to remain in the custody and control of the Commissioner of Police until further direction, did not prevent the earlier removal of a number of cloned hard drives to the United States (an issue in additional proceedings not presently before the Court). More generally, and of direct relevance to cases involving domestic warrants where electronic data is...