Justice Helen Winkelmann gave the NZ Police a good, swift judicial kick yesterday, ruling that the warrants used to search Kim Dotcom's property at Coatesville were illegal; the Herald reports:
Internet mogul Kim Dotcom won another victory yesterday in his fight against charges of criminal copyright violation when a High Court judge said the heavily publicised police raid on his mansion was illegal.Chief High Court judge Helen Winkelmann found that search warrants used in the raid were invalid because they did not adequately describe the allegations against the internet multi-millionaire.She said the warrants, issued by the District Court, gave police authority to seize too wide a range of items.Dotcom and Finn Batato, Mathias Ortmann and Bram van der Kolk were arrested in January after a request for assistance from the FBI.The United States claimed the men were behind the world's biggest criminal copyright violation through Dotcom's filesharing website Megaupload, which carried about 4 per cent of the world's internet traffic. The men deny the charges.The ruling yesterday is the third embarrassment in the case for Crown lawyers, who are representing the United States in the arrest, seizure and extradition process.It has previously emerged they used the wrong type of restraining order to seize Dotcom's funds and seizing his property without notice when he should have been given the chance to challenge the seizure.Then it emerged the Crown knew it was using the wrong order while the raid was in progress.During the raid, police seized computers, phones and anything which appeared to contain a hard drive - a total of 135 items.Ms Winkelmann said the search warrant was too broad in the way it described what could be taken."These categories of items were defined in such a way that they would inevitably capture within them both relevant and irrelevant material. The police acted on this authorisation."The warrants could not authorise seizure of irrelevant material, and are therefore invalid."She added: "The police relied on invalid warrants when they searched the properties and seized the various items. The search and seizure was therefore illegal."
The Police have an obligation to follow proper processes and the law, and clearly, they have been found not to have done so. Questions need to be asked as to how the Police and Crown Law could have got things so wrong. That the Police and their legal advisers have been so publicly chastised is a real embarrasment.
Police Commissioner Peter Marshall has been outstanding in the role since replacing Howard Broad, but the buck stops with him. We hope that this is a learning experience for Mr Marshall.
We are still not convinced that Mr Dotcom is the injured innocent that he and a compliant media protray him to be. But if any evidence of wrongdoing by him is to be accumulated, it must be done by lawful means and not by way of a fishing expedition.
Over at No Minister Nick K has described the whole situation as a MegaF**kup. It's hard to disagree with that assessment!
UPDATE: Over at Newstalk ZB, Leighton Smith has just read out an e-mail from someone close to this whole business that suggests that Crown Law brought pressure to bear on the Police to execute search warrants that the Police were not comfortable with; interesting...
6 comments:
The question is who brought pressure on Crown Law. They didn't just suddenly take interest in alleged offences not committed in NZ.
The answers are needed, does it come back to a single prosecutor or does it go further. Experience would say that it goes further, to a point where pressure or persuasion was applied for some reason we are entitled to know.
where are the trolls suggesting this is John Key's faiult?
They are out in force over at The Standard jabba
Oh Yeah IV2,that(SUB)Standard. Where the anonymous cowardly sock puppets of the collective joke, (also known as the frothing-at-the-mouth union fundamentalist wingnut leftards) spew forth their irrational vitriol. This is the location of the ultimate circle jerk of socialist diehards.
Now I wonder what is sludge holden's handle over there?
Sorry for the late comment, KS, but only just come to this one.
You need to understand that the US made an application under NZ legislation. They basically said we are going to apply for extradition of Dotcom because of these charges and request your assistance in gathering evidence. The A-G agreed and it went from there. The NZ government made the choice to assist after a request, they didn't go looking for it.
Also, this is nothing to do with Crown Law pressuring the police, the person who emailed Leighton Smith isn't telling the whole story. The warrant application could easily have been drafted in a way that complied with the law. If the Police were unhappy with the way the application was drafted then they were perfectly entitled to amend it and present it in a form that complied. Nobody can force the Police to make the application in an unsatisfactory form. Don't forget that we are talking about an application that includes an affidavit from a senior police officer as to the facts as known by the police. This is serious stuff.
Put another way, this is a case of Crown Law and the Police not doing a good job on this. It was perfectly possible to correct the errors Justice Winkelman pointed out prior to the application was made. The fact is that they thought the application was 'good enough' and went with it.
The Police and Crown Law together need to step up and take responsibility for what has been shown to be lazy drafting and over eager (and unlawful) evidence gathering.
Appreciate your expert opinion FES; many thanks.
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