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Appeal Court cuts both ways on Dotcom warrants, cloned info

Appeal Court rules Dotcom search warrants valid, says cloned info shouldn’t have left NZ

By Paul McBeth

Feb. 19 (BusinessDesk) - The Court of Appeal has ruled in favour of government submissions that search warrants executed during the high-profile arrest of Mega founder Kim Dotcom in January 2012 were valid, though it agreed that the police shouldn’t have let cloned information leave the country.

Justices Ellen France, Tony Randerson and Douglas White granted the Crown’s appeal against an order declaring the warrants invalid, saying “the defects were defects in form not in substance,” according to a judgment released today.

“In our view a reasonable reader in the position of the recipients of the search warrants would have understood what they related to,” the judges said. “The defects in these warrants were therefore not so radical as to require them to be treated as nullities.”

The Attorney-General appealed a High Court ruling that declared the search warrants invalid by not being specific enough, by not stating the electronic nature of the copyright offence, or that the US was the nation where Dotcom was alleged to have broken the law and to where he was facing extradition.

The Appeal Court didn’t agree with the Crown that the Police Commissioner was allowed to hand over cloned copies of information harvested from devices seized in the raid to the US Federal Bureau of Investigations without direction from the Solicitor-General.

“In our view, the words of the Solicitor-General’s direction in the present case plainly did not authorise removal of the clones to the United States,” the judges said.

“Once it is accepted that s49 (of the Mutual Assistance in Criminal Matters Act 1992) is not limited to custody of the original thing seized, but encompasses removal of the clones, the wording of the direction applied to require the Commissioner to retain ‘custody and control’ of the clones here in New Zealand ‘until further direction’ from the Solicitor-General,” they said.

In that respect, the judges upheld a High Court declaration that the removal of the clones from New Zealand wasn’t authorised and was unlawful.

The judges considered Dotcom and his co-accused should pay 60 percent of the costs of the Attorney-General.

The Nov. 28 hearing is part of a series of legal challenges to head off the US Federal Government’s bid to extradite Dotcom and his co-accused Finn Batato, Mathias Ortmann and Bram van der Kolk to face charges of conspiracy to operate websites used to illegally distribute copyrighted content.


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