Police have to return material to Dotcom

05:12, May 31 2013
Kim Dotcom
HE WINS AGAIN: Kim Dotcom has won the right to material seized from his home returned.

A judge has ordered the police to sift through all digital material taken illegally from Megaupload founder Kim Dotcom and to return anything irrelevant to their investigation- at their own cost.

Clones of hard-drives already sent to the United States must also be returned if they contain personal information, while any further copies must be destroyed, the court ruled.

Dotcom and his co-accused will then receive clones of devices deemed to be relevant to the case.

The judgement, made by chief High Court justice Helen Winkelmann today, says the seizure of devices without sorting them first was unlawful, and that the police have no right to keep irrelevant material.

Her orders follow a three-day remedies hearing in April, where Kim Dotcom's lawyers argued for the return of the material, while Crown lawyers said that was unnecessary.

It is the latest blow to the Crown and police following the January 2012 raid on Dotcom's Coatesville mansion.


The raid, requested by the FBI and carried out by the New Zealand police Special Tactics Group, was previously deemed illegal by the High Court last year, when Justice Helen Winkelmann ruled the warrants authorising it were too general.

Today, Winkelmann repeated that position, saying the defects in the search warrants "were such that the warrants were nullities", and that a miscarriage of justice did result.

She said, contrary to the police view, that she did not regard the deficiencies as minor or technical.

"The warrants could not authorise the permanent seizure of hard drives and digital materials against the possibility that they might contain relevant material, with no obligation to check them for relevance," Winkelmann wrote. "They could not authorise the shipping offshore of those hard drives with no check to see if they contained relevant material. Nor could they authorise keeping the plaintiffs out of their own information, including information irrelevant to the offences."

Winkelmann asked the police to inform the FBI of her decision.

Police are expected to complete the request at their own cost.


So far, the Dotcom case is up to five separate strands in four different courts. Confused? We don't blame you. But it's got a long way to go yet, so we've created a five-point guide to the case to help out.

1. Disclosure. Kim Dotcom's lawyers want to know what evidence the US Government has against them. The US says "disclosure" of evidence isn't required for an extradition hearing. Although the High Court ordered the evidence to be handed over, the Court of Appeal overturned that decision. This argument is now heading for the Supreme Court.

2. Search and Seizure: Last year, a court ruled the search warrants used in the January raid on Dotcom's house were too broad, and therefore illegal. Today, Dotcom's lawyers were granted a "remedy" - all his hard-drives to be returned to him. This is now likely to go to the Court of Appeal.

3. Compensation from police: This is also related to the search and seizure. Dotcom's team are effectively suing police for illegally searching his home and taking his property. This proceeding has the potential to get sexy - with the defence lawyers proposing to put two very senior police - including an Assistant Commissioner - on the witness stand. Also in the High Court.

4. Compensation from the GCSB: After it was revealed that the country's spy agency illegally recorded Dotcom's communications for a month (illegal because it's not allowed to spy on New Zealanders, and Dotcom's a resident), the Mega founder's lawyers applied to also get compensation from the GCSB. Originally, this was joined to the police hearing, but it's now separate. High Court.

5. The Extradition: Originally set down for March, due to the myriad of complications in the case, the extradition has now been moved to August. At this stage, it's looking likely it will be delayed again. Usually extradition hearings are relatively straight forward, but don't cross your fingers in this case.