Kim Dotcom v HM Attorney-General

JurisdictionNew Zealand
CourtSupreme Court
JudgeArnold,Glazebrook,Arnold JJ,William Young
Judgment Date23 December 2014
Neutral Citation[2014] NZSC 199
Date23 December 2014
Docket NumberSC 25/2014

[2014] NZSC 199



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

SC 25/2014

Kim Dotcom
First Appellant
Finn Batato
Second Appellant
Mathias Ortmann
Third Appellant
Bram Van Der Kolk
Fourth Appellant
Her Majesty's Attorney-General

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

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).

The issues were: whether the search warrants were invalid and a nullity; whether the warrants were saved by s204 SPA.

Held: The warrants were not in the form prescribed by the Mutual Assistance in Criminal Matters Regulations 1993 (MACMA Regs). Except for specific references in the heading to s43 and s44 MACMA and the 14-day time limit for execution of the warrants, the warrants were in the form prescribed for search warrants authorised by SPA and under the Summary Proceedings Regulations 1958.

Regulation 3(2), however, provided that variations could be made to a prescribed form to fit the circumstances of the particular case. Regulation 3(3) provided that strict compliance with the prescribed forms was not necessary, and substantial compliance, or such compliance as the particular circumstances of the case allow, was sufficient. Also relevant were s5 Judicature Amendment Act 1972 (JAA) (Defects in form, or technical irregularities), which applied to applications for judicial review such as the present, and s26 of the Interpretation Act 1999 (Use of prescribed forms). However s204 SPA, potentially at least, appeared to offer the widest protection.

The powers to issue a search warrant under s 44 MACMA had to be exercised in a manner consistent with the New Zealand Bill of Rights Act 1990 (NZBORA), and the rights and freedoms it protected. It was important to recognise that s21 NZBORA (Unreasonable search and seizure) values were, to a large extent, built in expressly to MACMA. Section 21 NZBORA was also relevant to the interpretation and application of s204 SPA in the search warrant context.

At the relevant time, s 204 SPA had the effect that a search warrant issued under MACMA should not be set aside or held to be invalid by reason only of any defect, irregularity, omission, or want of form unless the Court was satisfied that there has been a miscarriage of justice. Full effect should be given to the ordinary and natural meaning of the language of s204 SPA. While some defects were so serious that the document or process concerned had to be treated as a nullity and outside the scope of s 204, this conclusion was one which courts should be slow to reach. The Court's approach should not be a technical or mechanical one, and even relatively serious defects could receive the protection of s 204.

Where a court concluded that the relevant document or process was not a nullity on account of the particular defect(s), the question whether s204's protective effect was available depended on whether that would involve a miscarriage of justice. That would be determined by whether or not the particular defect had caused significant prejudice to the person affected. In considering whether there was such prejudice, where defects on the face of a search warrant were alleged, the Court was entitled to have regard to the context or surrounding circumstances to see whether they alleviated potential effect of any such deficiencies or whether prejudice remains. This approach was consistent with s21 NZBORA.

It was noteworthy that the text of s204 SPA had been carried over into s379 Criminal Procedure Act 2011 (Proceedings not to be questioned for want of form), with no relevant change, suggesting that Parliament did not consider it necessary to alter or amend the approach which the courts had hitherto taken to s204, although it no longer applied in respect of search warrants under MACMA.

The warrants were deficient in that, while they referred to offences of breach of copyright and money laundering, they did not specify that these were offences against United States law, nor did they specify that they were punishable by two or more years' imprisonment. Potentially, missing details of this type could be important and their absence could cause prejudice.

However, there was no significant prejudice in this case when the surrounding circumstances were taken into account, including explanations given to the first appellant, Dotcom (D), when he was given a copy of, first, the arrest warrant and, second, the search warrant; and the contents of the arrest warrant, which D read and understood (apart from the meaning of racketeering) before he was given the search warrant.

Viewed in isolation from the other alleged shortcomings, the deficiencies in the warrants in relation to the description of the offences did not result in a miscarriage of justice. The deficiencies were defects in form, not substance, and were protected by s204 SPA, so that the warrants were not invalid on that account. Applied this way, s204 SPA did not raise concerns under s21 NZBORA.

The more significant issue was the breadth of the description in Appendix A of the warrant of the items to be seized and the lack of conditions. While the terms of s44 apparently conferred broad and unfettered powers of search and seizure, to give effect to such a meaning would constitute an unreasonable and unjustifiable limit on the s21 NZBORA right to be free from unreasonable search and seizure. In accordance with s6 NZBORA, s44 should, so far as possible, be given a meaning consistent with that right. The general terms of s44 could be read consistently with s21 as a restraint on governmental action. So read, the power given was to issue a mutual assistance search warrant that would authorise search and seizure that in the circumstances was consistent with the NZBORA restraint. In this respect, legitimate state interests under MACMA had to accommodate reasonable expectation of privacy of individuals in their property and homes.

Case law and approaches followed in other jurisdictions provided guidance as to how s21 interests could be recognised in relation to mutual assistance search warrants and, in particular, those authorising search and seizure of computer information. For a search of any computer to be reasonable, a mutual assistance warrant had to give specific authorisation for the computer to be searched in order to identify and seize the data that it was believed was evidence of commission of an offence. For a warrant to include such authority there had to have been sufficient sworn grounds in the application to support its issue in that form. The appropriate balance of the interests underlying s21 NZBORA would best be achieved, at least in most cases, by the removal of the computer to an offsite location for searching. In some situations, the issuing judge would need to establish conditions (either directly or through identifying some appropriate process) to deal with obvious constraints on the extent of the search, as where a solicitor's or doctor's business computer was being searched; but that would not be necessary as a general rule. Rather, the police would be entitled to search the computer in order to identify any relevant material, generally offsite.

If the police acted unreasonably in conducting the search (by, for example, not dealing appropriately with irrelevant material), those affected would be able to pursue the same remedies as were available in relation to any other unreasonably conducted search under a valid search warrant. Judicial oversight was available as where there had been an unreasonable search and seizure, an available remedy would be exclusion of evidence on the basis that it was improperly obtained. A person who was the subject of an unreasonable search and seizure might be able to pursue a public law claim against the Crown for damages for breach of that right. The common law also enabled judicial supervision of the search warrant process outside of the criminal justice process, by application for judicial review of the decision to issue the search warrant.

Those who wished to challenge the legality of searches conducted under mutual assistance search warrants needed timely access to the HC to challenge by judicial review what was done before what was seized was sent overseas to the authorities of the requesting country. In proceedings to challenge the issue or execution of a search warrant (including the conduct of any offsite sorting process), an available remedy might include return of material wrongly seized rather than allowing it to be available to be sent overseas at the direction of the Attorney-General. But where the HC was satisfied that it was not practicable for information to be sorted or extracted in New Zealand, it would be open for the Court to conclude that it was reasonable for the relevant computer hard drives to be sent...

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