DOTCOM v ATTORNEY-GENERAL [2013] NZHC 1269

DOTCOM v ATTORNEY-GENERAL [2013] NZHC 1269

The MACMA warrants were invalid nullities because they failed to identify the foreign law and particular offences and authorised seizure of broad categories that inevitably captured irrelevant material; the searches were therefore unlawful and unreasonable under s 21 NZBORA; s 204/s 5 cannot cure these defects or...

Source-derived case information.

Citation
[2013] NZHC 1269
Parties
First Plaintiff: Kim Dotcom; Second Plaintiff: Finn Batato; Third Plaintiff: Mathias Ortmann; Fourth Plaintiff: Bram van der Kolk; First Defendant: Attorney-General; Second Defendant: District Court at Northshore
Court
High Court
Jurisdiction
New Zealand
Judgment Date
31 May 2013
Procedural Posture
Judicial Review (challenge to Search Warrants and Related Actions Under Macma) / Remedies / Relief Hearing (final Relief Orders)
Outcome
Declarations of illegality issued; orders made requiring onshore review and sorting of seized items, return of items containing no relevant material, provision of forensic clones to plaintiffs, creation of disclosable clones with personal photos/films removed for US authorities, examination of originals cloned...
Legal Topics
Validity of Search Warrants, General Warrants and Particularity, S 21 NZBORA Unreasonable Search and Seizure, Mutual Assistance in Criminal Matters Act 1992 (macma), S 49 MACMA Transfer of Seized Material, S 204 Summary Proceedings Act Curative Powers, Remedies: Return of Property and Disclosure, Forensic Cloning and Handling of Digital Evidence
Criminal Law Administrative Law Search and Seizure Law Mutual Legal Assistance / International Cooperation Constitutional / Human Rights Law (nzbora) Property and Evidential Procedure Validity of Search Warrants General Warrants and Particularity +6 more

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Parties

Kim Dotcom

First Plaintiff

Finn Batato

Second Plaintiff

Mathias Ortmann

Third Plaintiff

Bram van der Kolk

Fourth Plaintiff

Attorney-General

First Defendant

District Court at Northshore

Second Defendant

Procedural Posture

Judicial Review (challenge to Search Warrants and Related Actions Under Macma) / Remedies / Relief Hearing (final Relief Orders)

Legal Issues

  1. 1 Whether the MACMA warrants were valid and sufficiently particular
  2. 2 Whether defects in the warrants were minor/technical and curable under s 204 Summary Proceedings Act or s 5 Judicature Amendment Act
  3. 3 Whether the searches were unreasonable under s 21 New Zealand Bill of Rights Act 1990

Ratio Decidendi

The MACMA warrants were invalid nullities because they failed to identify the foreign law and particular offences and authorised seizure of broad categories that inevitably captured irrelevant material; the searches were therefore unlawful and unreasonable under s 21 NZBORA; s 204/s 5 cannot cure these defects or deny relief because a miscarriage of justice occurred; equitable discretionary relief requires onshore review, return of items containing no relevant material, provision of forensic clones to plaintiffs (and limited disclosable clones to US authorities), and restriction on transfer pending compliance.

Court Disposition

Declarations of illegality issued; orders made requiring onshore review and sorting of seized items, return of items containing no relevant material, provision of forensic clones to plaintiffs, creation of disclosable clones with personal photos/films removed for US authorities, examination of originals cloned...

Orders

  • Declaration that the MACMA search warrants were unlawful
  • Declaration that removal of clones from New Zealand contravened the Solicitor-General's direction dated 16 February 2012 and s 49 MACMA and was unlawful