IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2012-404-001928 [2013] NZHC 1269

UNDER	the Judicature Amendment Act 1972

IN THE MATTER OF	an application for judicial review and application for orders for interim relief pursuant to s 8

BETWEEN	KIM DOTCOM First Plaintiff

AND	FINN BATATO Second Plaintiff

AND	MATHIAS ORTMANN Third Plantiff

AND	BRAM VAN DER KOLK Fourth Plaintiff

AND	ATTORNEY-GENERAL First Defendant

AND	THE DISTRICT COURT AT NORTH SHORE
Second Defendant

Hearing:	15, 18 April 2013

Counsel:	P J Davison QC, W Akel & R Woods for first plaintiff
G J S R Foley for second, third and fourth plaintiffs
K P McDonald QC and D J Boldt for first defendant

Judgment:	31 May 2013

JUDGMENT OF WINKELMANN J

This judgment was delivered by me on 31 May 2013 at 1.00 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

DOTCOM v ATTORNEY-GENERAL [2013] NZHC 1269 [31 May 2013]

A.       Introduction

[1]       In June 2012 I issued a judgment upholding the plaintiffs’ challenge to the validity of  search  warrants  and  related  searches  (the  warrants’ judgment).    The warrants had been issued by the District Court and executed by Police in January
2012 at addresses associated with the first plaintiff, Mr Dotcom, and the fourth plaintiff, Mr van der Kolk. Assets of all four plaintiffs were seized during the course of those searches.   This judgment is concerned with the appropriate relief to be granted to the plaintiffs in light of those findings.

[2]       In addition to declarations of illegality, the plaintiffs seek relief, in broad terms, limited to the return of irrelevant material held by the Police, and access to material seized.  The Police contend that the plaintiffs are entitled to no relief other than declarations of illegality.  They say that any invalidity or illegality was technical in nature only, so that the plaintiffs have suffered no prejudice, and in any case, the relief sought would be difficult and expensive to provide.

[3]       I have concluded that the deficiencies in the warrants and, as a consequence, the searches, were more than merely technical.   The defects in the warrants were such that the warrants were nullities.  The plaintiffs are entitled to relief that places them, if only roughly, in the position in which they would have been if the searches had been conducted pursuant to a valid warrant.  The appropriate relief is to require the Police to undertake the search exercise they should have completed, limiting the
right to seize to the particular offences that should have been stipulated.1    Those

particular offences  are  criminal  copyright  infringement  by distributing  copyright works on the Megaupload platform and, by that means also, aiding and abetting criminal  copyright  infringement.    The  Police  are  to  review  digital  data  storage devices and return any to the plaintiffs that contain no relevant material.2   The Police may retain storage devices that contain a mixture of relevant and irrelevant data, but
should provide a clone of those devices to the plaintiffs.   These actions are to be

1	I distinguish the off-site sorting exercise sometimes necessary to sort the relevant from the irrelevant, from the act of seizure.  See Dotcom v Attorney-General [2012] NZHC 1494, [2012]
3 NZLR 115 at [68]–[69] [the warrants’ judgment].
2	Relevant in the sense of relevant to the offences to which the warrants should have been limited.

completed  before  releasing  any  material  to  the  Federal  Bureau  of  Investigation

(FBI), the agency with which the Police have been dealing.

[4]       Some devices have already been cloned.  Some are held in New Zealand, and some have been provided to the FBI.   The clones held in New Zealand are to be provided to the plaintiffs upon receipt of encrypted passwords.   In respect of the clones that have been sent offshore, the Police are to inspect the original devices.  If they contain nothing of relevance, they are to be returned to the plaintiffs, and the FBI requested to return the clones, and all material derived from those clones.  The detail of the orders made is set out at paragraph [65].

B.        The warrants’ judgment

[5]       At the hearing in May 2012 (the warrants’ hearing) the plaintiffs alleged that the search warrants were unlawful because they were unreasonably broad in their terms, lacking specificity as to the charges to which the searches related and the extent  of  the  search  and  seizure  that  was  authorised.    They  also  argued  that conditions should have been imposed upon the warrants prescribing the process for dealing with items taken away following the search.  The plaintiffs further sought to review the actions of the Police in executing the search warrants on the grounds that they exceeded their powers in seizing the items that they did.  Finally, the plaintiffs sought a declaration that removal from New Zealand of clones of hard drives that had been seized during the search and seizure was illegal.

[6]       In a decision delivered on 28 June 2012, I made the following findings:

(a)       The warrants did not adequately describe the offences to which they related.   They stipulated “Breach of Copy Right and Money Laundering”3  as the offences, with no mention of the country under whose law the offences were alleged to have been committed4 or the
nature of the offences, or, more significantly, any detail of the alleged

3           The critical detail in the warrants related to the allegation of breach of copyright, as the money laundering offence was contingent upon the breach of copyright. Without proper definition as to the primary offence, there could be little definition as to what was relevant to the secondary offence of money laundering: the warrants’ judgment, above n 1, at [39].
4	Contrary to form 5 in the Schedule to the Mutual Assistance in Criminal Matters Regulations
1993.

breach of copyright.  I also found that there was further detail readily available to the Police which had not been included in the warrants.

(b)       The warrants were expressed to authorise the search for and seizure of various broad categories of items.  These categories of items were worded so as to inevitably capture both relevant and irrelevant material.  This was not a mere error in expression.  The Police sought and obtained authorisation to seize irrelevant along with relevant material, with the intention that all of that material be sent offshore to the  United  States  for  sorting.    The  warrants  could  not  authorise seizure of irrelevant material.

[7]	For these reasons the warrants were general warrants and were invalid. [8]	I further held that:
(a)       If the warrants had been adequately specific as to the offence and the scope of the search, it may still have been appropriate for the issuing Judge to impose conditions on the warrants in the particular circumstances of this case.  The conditions could have provided for the cloning of hard drives, the extraction of relevant material, and the return to the plaintiffs of the original hard drives or clones of those hard drives.

(b)       The  Police  relied  on  invalid  warrants  when  they  searched  the properties and seized the various items.  The search and seizure was therefore illegal.  I said that if it was relevant I would hear counsel on whether, in each case, that also amounted to an unreasonable search and seizure for the purposes of s 21 of the New Zealand Bill of Rights Act 1990.

(c)       If I was wrong that the warrants were invalid, I found that it was nevertheless clear that the Police, in executing the warrants, had exceeded what they could lawfully be authorised to do.   That was

because they continued to hold, along with the relevant, irrelevant material having made little or no effort to identify and return the irrelevant.

(d)       Finally, I found that the release of some cloned hard drives to the FBI for shipping to the United States was contrary to a direction given by the Solicitor-General under s 49(2) of the Mutual Assistance in Criminal Matters Act 1992 (the MACMA) that the items seized were to remain in the custody and control of the Commissioner of Police. That  release  was  therefore  in  contravention  of  s  49(3)  of  the MACMA.

[9]       At the conclusion of the judgment I said that I was satisfied that declarations should issue in relation to the validity of the warrants and the transfer of the clones, but that I would hear counsel in relation to the form of the declarations and what, if any, further relief should be granted.  Although counsel had not asked for a further opportunity to be heard in relation to the remedy to be granted, I sought further submissions because of the complexity of the issues raised and  resolved in the warrants’ judgment.

[10]     When the matter was next listed before me both parties sought and were granted leave to call further evidence in relation to the relief stage, as well as a further hearing.  As a consequence of this process, new and complex issues arose as to the conduct of both the Police and the Government Communications Security Bureau.   Ultimately those issues have been severed from these proceedings.   The issues for me now remain essentially the same as presaged in the warrants’ judgment, that is, what form the declarations in respect of the invalidity of the warrants and the transfer of clones should take, and what further remedy, if any, should be granted to the plaintiffs as a consequence of the invalidity.  I record also the agreement of all counsel that I should make a determination as to whether or not the searches were unreasonable for the purposes of the New Zealand Bill of Rights Act.

C.	Relief now sought

[11]	The relief sought by the plaintiffs has shifted over time.	The relief now sought is as follows:

(a)       An order by way of declaration that the MACMA search warrants were unlawful (under both the MACMA and in terms of s 21 of the New Zealand Bill of Rights Act);

(b)       An order by way of declaration that the removal of clones from New Zealand was contrary to the Solicitor-General’s direction to the Commissioner of Police dated 16 February 2012, was not authorised in accordance with s 49 of the MACMA, and was accordingly unlawful;

(c)       An order that none of the items seized, nor clones or copies thereof, remaining in New Zealand be permitted to leave New Zealand or be accessed in any way other than in accordance with the process set out in paragraph (f) below, subject to any further order of the Court;

(d)       An order that the Police provide the plaintiffs with the clones of seized items currently held by the Police (the existing clones);

(e)       An order requiring the Police to provide confirmation in writing to the plaintiffs identifying those items, the clones of which have been removed from New Zealand, and confirming whether or not the existing clones are effectively duplicates of the clones removed from New Zealand;

(f)        An order providing for the following process to be undertaken at the cost of Police:

(i)	The review of all items seized for the purpose of identifying irrelevant and privileged material;

(ii)       That  clones  containing  only  relevant  and  non-privileged material located on the seized electronic items (the disclosable clones)   be   created   and   provided   to   the   United   States authorities;

(g)       An order requiring that all items identified as containing no relevant material be returned forthwith to the plaintiffs;

(h)       An order that complete clones of those seized items which are found to contain any relevant and non-privileged material be provided to the plaintiffs as soon as possible, and in any case,  not later than the disclosable clone of that item is provided to the United States authorities;

(i)        An order directing the Police to notify the relevant United States authority of the Court’s decision in this matter, and to request the voluntary return of the clones removed from New Zealand, along with any copies/clones or data taken therefrom;

(j)        The ability for either party to seek further orders from the Court as required, including in relation to any dispute as to the relevance or privilege attaching to a certain item or items during the review of the items;

(k)	An order that the Police pay, on an indemnity basis, the plaintiffs’

costs of and incidental to this proceeding and any order thereon; (l)	Such further orders and other relief as the Court deems just.
D.       The Police’s position on relief

[12]     The Police say that no relief over and above declarations of invalidity and illegality should  be  granted.   They build  this  argument  upon  the  foundation  of evidence produced during the remedies phase of this proceeding, and in reliance on s 204 of the Summary Proceedings Act 1957 and s 5 of the Judicature Amendment

Act 1972.  Those provisions deal respectively with the curing of, and refusal of relief in respect of, minor or technical defects, provided there has been no miscarriage of justice.  The Police submit that in light of the evidence now before the Court it is clear that the plaintiffs were in no way misled by any defect in the search warrants. This is because the defects on the face of the warrants were “cured” by the contemporaneous provision of information in the arrest warrants.   That being the case, any defect in the search warrants cannot then be said to have given rise to a miscarriage of justice.

[13]     The Police say that a similar test applies to the issue of whether the warrants amounted to a breach of s 21 of the New Zealand Bill of Rights Act.  That is, the searches were not unreasonable because any deficiencies in the warrants were technical and ought to be excused.

[14]     Another argument against the grant of further relief is that the plaintiffs’ claim  amounts  to  an  abuse of process  because it  seeks  the same relief as  was unsuccessfully sought in other proceedings.

[15]     Finally, it is argued that no additional relief should be granted as the plaintiffs have no right of access to the hard drives or to clone copies.  Providing either will be impractical and too expensive.

[16]     I propose to address the arguments advanced in connection with relief as follows:

(1)	Section  204  of  the  Summary  Proceedings  Act  and  s  5  of  the

Judicature Amendment Act.

(2)	Was the search unreasonable? (3)	Abuse of process.
(4)	The appropriate relief.

E.        Section 204 of the Summary Proceedings Act and s 5 of the Judicature
Amendment Act

Background

[17]     The Police rely on s 204 of the Summary Proceedings Act and s 5 of the

Judicature Amendment Act. Those sections provide:

204      Proceedings not to be questioned for want of form

No information, complaint, summons, conviction, sentence, order, bond, warrant, or other document, and no process or proceeding shall be quashed, set aside, or held invalid by any District Court or by any other Court by reason only of any defect, irregularity, omission, or want of form unless the Court is satisfied that there has been a miscarriage of justice.

5          Defects in form, or technical irregularities

On an application for review in relation to a statutory power of decision, where the sole ground of relief established is a defect in form or a technical irregularity, if the Court finds that no substantial wrong or miscarriage of justice has occurred, it may refuse relief and, where the decision has already been made, may make an order validating the decision, notwithstanding the defect or irregularity, to have effect from such time and on such terms as the Court thinks fit.

[18]     The Police rely upon the case Rural Timber Ltd v Hughes5  in support of an argument that extraneous materials presented at the time of the execution of the warrants can be read in order to determine whether the warrants were misleading in any way.  If the Court is satisfied that the warrants were not misleading in light of those extraneous materials, then the curative powers conferred by s 204 should be exercised by the Court.   Section 204 is, the Police point out, a mandatory consideration in cases such as these.  The Police submit that no miscarriage of justice flowed from the defects in the warrants, as any defects were cured by explanations and information, including an arrest warrant, provided to Mr Dotcom at the time that
the warrant was executed.6

[19]     The Police point to the evidence of Detective Sergeant Humphries, the officer in charge of executing the search warrant at the Dotcom residence on 20 January

5	Rural Timber Ltd v Hughes [1989] 3 NZLR 178 (CA).
6           Although this argument was articulated in terms of Mr Dotcom, I assume it also extends to Mr van der Kolk.  I note that during the course of the search of Mr van der Kolk’s home, an arrest warrant was also produced.

2012.	In  an  affidavit  provided  for  the  remedies  hearing,  Detective  Sergeant

Humphries described events as follows:

At 0745 hrs I went into the dining room where Kim Dotcom was sitting drinking a can of Fanta.   I introduced myself to him, shook his hand and showed him my Police identification.   I explained to him that I was the officer in charge of the Police operation at his house, and that we were there in relation to the activities of MegaUpload.   I explained that  we had a warrant for his arrest, and asked if he understood that he was under arrest. He confirmed he did.  I asked him whether he had been told his rights, and he confirmed he had.

…..

I showed him the original arrest warrant and provided him with a copy.

He read the warrant.  I explained that it was issued under the Extradition Act in relation to a variety of charges including Conspiracy to Commit Racketeering, Money Laundering, and Copyright Infringement, following an investigation by the FBI.

He asked what was meant by the term “racketeering”.   I advised that I understood the equivalent offence in New Zealand is “Participation in an Organised Criminal Group” but that I did not know the specifics of the American charge.

…..

I showed him the original search warrant and gave him a copy.   He read through it and I explained that it authorised the seizure of evidence relating to Breach of Copyright and Money Laundering, such as computers, cellphones, electronic devices and documents.

[20]	The arrest warrant that Detective Sergeant Humphries handed to Mr Dotcom read as follows:

PROVISIONAL WARRANT FOR ARREST UNDER EXTRADITION ACT 1999 (Sections 20(1), 42, Extradition Act 1999)

TO: Every member of the police

On 18 January 2012 the United States of America applied for a provisional warrant under section 20 of the Extradition Act 1999 for the arrest of Kim DOTCOM, also known as Kim SCHMITZ and Kim VESTOR, currently residing in Auckland.

The information provided in support of the application states that –

(a)	Kim  DOTCOM  is  accused  of  the  following  offences  related  to criminal copyright and money laundering:

Count One:       Conspiracy to commit racketeering, in violation of Title 18, United States Code, Section 1962(d), which carries a maximum penalty of twenty years of imprisonment.

Count Two:      Conspiracy  to  commit  copyright  infringement,  in violation of Title 18, United States Code, Section 371, which carries a maximum penalty of five years of imprisonment.

Count Three:    Conspiracy   to   commit   money   laundering,   in violation of Title 18, United States Code, Section 1956(h), which carries a maximum penalty of twenty years of imprisonment.

Count Four:      Criminal  copyright  infringement  by  distributing  a work on a computer network, and aiding and abetting of criminal copyright infringement, in violation of Title 18, United States Code, Sections 2 and 2319, and Title 17, United States Code, Section 506, which carries a maximum penalty of five years of imprisonment.

Count Five:      Criminal   copyright   infringement   by   electronic means, and aiding and abetting of criminal copyright infringement, in violation of Title 18, United States Code, Sections 2 and 2319, and Title 17, United States Code, Section 506, which carries a maximum penalty of five years of imprisonment.

(b)        On 5 January 2012 a warrant for the arrest of Kim DOTCOM in relation to these offences was issued by Julie Correa, Deputy Clerk of  the  United  States  District  Court  for  the  Eastern  District  of Virginia, pursuant to the authorisation of Magistrate Judge Theresa Buchanan, in accordance with the practice of the Court.

I am satisfied that –

(a)        The warrant for the arrest of Kim DOTCOM has been issued in the United States of America by a judicial authority having lawful authority to issue the warrant; and

(b)        Kim DOTCOM is in New Zealand; and

(c)        There are reasonable grounds to believe that –

(i)         Kim DOTCOM is an extraditable person within the meaning of section 3 of the Extradition Act 1999;

(ii)       The  offences  for  which  Kim  DOTCOM  is  sought  are extradition offences within the meaning of section 4 of the Extradition Act 1999;

(d)        It is necessary or desirable that a warrant for the arrest of Kim
DOTCOM be issued urgently.

I DIRECT YOU TO ARREST Kim DOTCOM  and  bring  him before  a District Court as soon as possible to be further dealt with in accordance with the Act.

[21]     Counsel for the Police submits that the fundamental issue for the Court is what is the gap between what actually happened and what would have happened if the warrant had been expressed as it should have been.  In order to assess this gap, a hypothetical “fully compliant” warrant has to be constructed.  Once this exercise is undertaken, it becomes apparent that no additional relief is appropriate, because such a  warrant  would  have  provided  no  more  information  than  is  contained  in  the warrants shown to Mr Dotcom and Mr van der Kolk, as bolstered or clarified by the information in the arrest warrants.

Preliminary Issue

[22]     There is a preliminary issue in connection with the Police’s argument.  In so far as it rests upon s 204 of the Summary Proceedings Act, it is an argument as to the validity of the warrants rather than the appropriate relief, and should have been made during the warrants’ hearing.  The Police seek to excuse the failure to raise the issue earlier on the basis that the principal ground of challenge upheld by me in my judgment was not pleaded.  It is true that the pleading as it stood at the date of the warrants’ hearing did not allege a deficiency in the description of the offences.  The relevant pleadings were as follows:

[21]      The  terms  of  the  search  warrant  were  unreasonably  broad  and thereby unlawful in that they fail to address the fact that in addition to the plaintiff  and  the  co-accused  who  were  residing  at  the  Mahoenui Valley property as at 20 January 2012 (at that time the second and third plaintiffs were residing at that address), a large number of other people, including the plaintiff’s family and household staff, were also resident at the property such that some items located in the course of the search would inevitably be the property of persons other than the plaintiff and his co-accused and unrelated to the activities the subject of the US investigation.

[22]      Further, the  New  Zealand Police  would  have  been aware of the presence of an array of electronic and computer equipment at the property, related to the operation of the household, and unrelated to the alleged offending either from their investigations and enquiries prior to 20 June
2012, or from their inspection of the property in the course of the raid on 20
January 2012.   No provision was made in the search warrant for the differentiation  between  such  electronic  and  computer  infrastructure  and
equipment and those items which come within s 44(1)(a) or (b) and so could
be legitimately seized under the search warrants.

[23]      The  terms  of  the  search  warrant  were  unreasonably  broad  and thereby unlawful in that they fail to address the fact that items of property, which could conceivably fall within the categories of items set out in Appendix  A  to  the  search  warrant,  would  inevitably  include  data  and

information unrelated to the alleged offences.  The search warrant makes no provision for how such information and data is to be distinguished and dealt with once identified.  Such data and information would clearly fall outside of the scope of the search warrant.

[23]     There was clearly then a challenge to the validity of the warrant executed on Mr Dotcom’s residence on the grounds that it was unreasonably broad.  Although that challenge focused upon the extent of the items authorised to be searched for and seized and not upon the description of the offence or offences, any challenge to the validity of the warrant potentially engaged s 204.  I also note that in the plaintiffs’ submissions filed in advance of the warrants’ hearing, the first challenge to the scope of the warrant focused upon the description of the offences, and the second upon the pleaded challenge.  Both challenges were responded to by the Police in submissions filed in advance of the hearing, and the Police did not take issue with the adequacy of the pleading during the course of the hearing.  They did not claim to have been
surprised or disadvantaged by the plaintiffs’ inadequate pleading.7

[24]     In the warrants’ judgment I held that the defects in the warrants were so fundamental that the warrants were nullities.   When I made that finding I did not have the benefit of the evidence now before me.   During the remedies hearing I asked counsel for the Police if they were seeking recall of the warrants’ judgment on the grounds that s 204 was a provision I should have taken into account in the course of the judgment.  Counsel disclaimed any intent to ask for recall of the judgment, saying  that  s  204  of  the  Summary  Proceedings Act  and  s  5  of  the  Judicature Amendment Act were raised only as relevant to the issue of relief.

[25]     Although it may be possible to approach s 5 of the Judicature Amendment Act  as  relevant  to  remedy,  s  204  is  concerned  with  the  validity  of  the  legal instrument or process, not with issues of relief.  Given the rather peculiar position we have arrived at,  I have  decided to address the arguments made under s 204 as arguments relevant to the validity of the warrants, as that is what they are.  These are arguments that appeal Courts can consider when this judgment and the warrants’ judgment are appealed (which the Police have told me they will be).   In case it
assists later Courts I set out my views on the applicability of s 204 to this case.  This

7	Ultimately an amended pleading was filed, on a consent basis, shortly after the hearing, but this
was to deal with the issue of the Police’s release to the FBI of clones of some hard drives seized.

does not waste much judicial effort, as in the course of doing so I address what, if any, prejudice the plaintiffs suffered by reason of the deficiencies.  That exercise is clearly relevant to the exercise of the discretion to grant relief.

Relevant principles

[26]     Not  every  defect  in  a  warrant  is  capable  of  being  validated  under  the provisions of s 204.  Warrants issued where the evidentiary pre-conditions for issue have not been met, or issued in excess or outside of the power conferred by the relevant statute, cannot be saved under s 204.  Nor can a warrant which on its face is so lacking in particularity that it provides no proper boundaries for the scope of the search; such warrants are termed “general warrants”.8

[27]     Warrants that purport to authorise fishing expeditions – that are “general” warrants – have repeatedly been held to be nullities, and beyond the remedial powers of s 204.9   In R v Briggs the Court of Appeal said:10

The need for particulars reflects the law’s aversion to general warrants. Inadequate particulars [of the place to be searched, the thing to be searched for and of the nature of the suspected offences] will render the warrant invalid.

[28]     In R v Sanders, Fisher J put the matter as follows:11

A number of points affect the application of s 204. First, a distinction can usefully be drawn between legal defects and mere defects of expression. The latter will be of consequence if they are so profound that the meaning of the document cannot be ascertained.  But if on a reasonable interpretation of the document as a whole the true meaning can be ascertained, the focus moves to the legal implications of the message ultimately conveyed by the document.  Section 204 is at least primarily concerned with the latter stage only.  It is difficult to see how the section could assist in the initial process of comprehending what, if anything, the document means.

… I agree with the Judge that where a legal defect is so fundamental that the relevant document should be regarded as a nullity, the document will be beyond the curative powers of s 204.  Whether it is a nullity is essentially a

8           Whether or not the warrant is valid is of course a separate question to the effect that invalidity has on the admissibility of the evidence.  In the usual course that issue is to be determined under the provisions of the Evidence Act 2006.
9	R v Briggs [1995] 1 NZLR 196 (CA) at 199; R v Coghill [1995] 1 NZLR 675 (CA); Auckland
Medical Aid Trust v Taylor [1975] 1 NZLR 728 (CA) at 736.
10	R v Briggs, above n 9, at 199.
11	R v Sanders [1994] 3 NZLR 450 (CA) at 461-462.

matter of ascertaining the express or implied legislative intention.   It is reasonable to infer that a substantive defect such as failure to satisfy the statutory grounds for the issue of a warrant was intended to invalidate any warrant issued in reliance thereon.  To invoke s 204 in those circumstances on the basis that no miscarriage had resulted could  frustrate one of the implied objectives of s 198: it could encourage the belief that so long as a search ultimately produced incriminating evidence, with the associated difficulty of showing a miscarriage of justice, substantive omissions in the original application might not matter.

[29]     Cooke P and Casey J in the same case said:12

In the end it is always a question of the relative seriousness or otherwise of an error. If the error is so serious as to attract the description 'nullity', s 204 will not assist.  Inevitably questions of degree and judgment arise.

[30]     Fisher J’s decision in Sanders was cited with approval in R v McColl, where

Tipping J said:13

[Fisher J]  drew  a  distinction  between legal  defects and  mere  defects  of expression. If, as he said, the true meaning of the document in question can be ascertained, the focus moves to legal implications with which s 204 is primarily concerned.  In this context deficiencies in the material supplied in support of the application fall into the category of legal defects rather than matters of expression.   If the defect is such as to nullify the application, s 204  will  not  come  to  the  rescue.     But  if  the  defect  falls  short  of nullification, the question will be whether there has been a miscarriage of justice: see Fisher J at p 462; p 22.  The onus of proving such a miscarriage rests  on  the  proponent  and  the  standard  of  proof  is  the  balance  of probabilities.

Analysis

[31]     It is necessary to first identify the defects in this case.  There are two separate grounds upon which I held the warrants invalid.   The first finding is set out in paragraphs [40] and [44]–[46] of the warrants’ judgment as follows:

[40]      As  is properly conceded by Mr  Ruffin for  the  Police, there are deficiencies in the description of the offences in this case. The warrants do not stipulate that the offences of breach of copyright and money laundering are offences under the law of the United States of America, nor that they are punishable by a sentence of imprisonment of two years or more. They do not refer to any statutory provision to enable the subject of the warrant to understand the nature of the offences referred to. The failure to refer to the laws of the United States on the face of the warrants, would no doubt have

12	At 454.
13	R v McColl (1999) 17 CRNZ 136 (CA) at [21].

caused confusion to the subjects of the searches. They would likely read the warrants as authorising a search for evidence of offences as defined by New Zealand's law. The only clue that they are not is that each warrant is headed “The Mutual Assistance in Criminal Matters Act 1992”. That is not much of a clue.

...

[44]      The warrant must be framed with as much specificity as the relevant context permits.  Detail of the specific offence is important because it is a requirement of the statutory scheme.   It is a requirement of the statutory scheme because it defines the extent of the authority to search and seize.  It informs the person or persons searching of the parameters of the Police’s authority to search and seize goods.  It also provides the subject of the search with enough information to enable the subject to obtain legal advice about the permitted limits of that search.   For this reason s 47 of the MACMA requires that the police officer executing the warrant issued under s 44 have the warrant with him or her, and produce it on initial entry and at any subsequent time.

[45]      I agree with the plaintiffs that the words “breach of copyright” do not comply with the requirements of the Act or those of the regulations. They describe the type of offence, and then do so inaccurately. They provide no detail as to the particular offence or offences.  The requirement imposed by s 45 is not to describe the type of offence, but rather the offence or offences in respect of which the warrant was sought and obtained.

[46]      Copyright may be breached in a multiplicity of ways, and a breach of copyright may involve a multiplicity of media.  The warrant authorised the  Police  to  search  for  any  offence  of  breach  of  copyright.    Because warrants should be construed  as a  whole, I have  considered  what other material there is that might assist in defining the offence.  Although close inspection of Appendix A reveals clues that the suspected breach or breaches of  copyright  involved  the  use  of  electronic  media,  that  was  neither  a necessary nor obvious conclusion.    Particularly since there were contraindications in the list such as the item “All documents that reference shipments, imports, exports, customs or seizures”.  In any case the subject of the warrant should not be left to attempt to guess the purposes of the warrant through deductive reasoning.  It should be spelt out plainly in the required part.  And to say a breach of copyright involves the use of electronic media scarcely limits the field.

(citations omitted)

[32]     The  second  finding  relates  to  the  scope  of  the  things  authorised  to  be searched for and seized.  Although I remarked that an inadequately specified offence would likely lead to inadequate specificity as to the extent of the authority bestowed by the warrant to search and seize items, I considered that there were some particular

points raised by the plaintiffs relating to Appendix A that need to be addressed separately.14   I decided this issue as follows:

[55]      I  accept  the  plaintiffs’  submission  that  even  when  each  of  the warrants is construed as a whole, their form is such that they would most likely be read as authorising the seizure of all of the items in Appendix A. This is because the issuing Judge has expressed himself as satisfied that “all” of the items within the second to sixth listed bullet points in the appendix fall within s 44(1)(a) or (b).

[56]      The issuing judge  could not  have  been satisfied  that  there  were reasonable grounds for suspecting that all of the things listed in Appendix A were evidence of breach of copyright or the related money laundering, when those categories were so broadly drawn.   For example, had he turned his mind  to  it,  he  would  have  identified  that  the  digital  devices  listed  in Appendix A would most likely store some irrelevant material, probably a large volume of irrelevant material, since the warrants were to be executed at domestic properties.  He might also have identified the real possibility that not all of the accounting material or shipping documents would be relevant.

…..

[60]      I have reflected upon whether this is an overly technical construction of the warrants.  I do not think that it is, and indeed the evidence suggests that  the  Police  sought  warrants  that  authorised  the  seizure  of  entire categories of items because of the methodology they had settled upon for complying with the request for assistance.  It is clear from the evidence of Detective Inspector Wormald that it was the intention of the Police to seek warrants that authorised the seizure of anything that might possibly be relevant, in the knowledge that irrelevant material would be caught up in the net that was cast.   As Detective Inspector Wormald explained, the Police needed to seize such broad categories of items because the Police were not able to assess relevance, and indeed had no request to do so.  That would have to be done by the FBI and the FBI would do that offshore.  Seizing the categories of items was the assistance which the Police were requested to provide.

[61]      The Police clearly believed that they had obtained a warrant that authorised this approach, and one can understand the operational imperatives that  drove  this,  given  the  need  to  leave  the  ultimate  determination  of relevance to the FBI.  There were ways around this however, and operational difficulties cannot expand the scope of the authority it was possible to confer on the Police under ss 44, 45 and 46 of the MACMA.

…..

[76]      Under  the  provisions  of  MACMA  the  United  States  Central Authority is  not  entitled  to  irrelevant  material  seized  during  the  search. Although Mr Song says the FBI wishes to keep all material against the possibility that some new issues will emerge, issues of relevance must be determined at the time of the search and offsite sorting process.  There is no construction of s 46 which would permit the seizure of material which is

14	The warrants’ judgment, above n 1, at [51].

irrelevant  at  the  time  of  search  against  the  possibility  it  subsequently becomes relevant.

[77]      To conclude, the warrants were expressed to authorise the search for and seizure of very broad categories of items.   These categories of items were defined in such a way that they would inevitably capture both relevant and irrelevant material. The Police acted on this authorisation. The warrants could not authorise seizure of irrelevant material, and are therefore invalid.

[33]     In  assessing  the  nature  of  these  defects  it  is  instructive  to  consider  the statutory framework for the issue of MACMA warrants.  Sections 44 and 46 together create that framework.

44        Search warrants

(1)        Any District Court Judge who, on an application in writing made on oath, is satisfied that there are reasonable grounds for believing that there is in or on any place or thing—

(a)        Any thing upon or in respect of which any offence under the law of a foreign country punishable by imprisonment for a term of 2 years or more has been, or is suspected of having been, committed; or

(b)        Any thing which there are reasonable grounds for believing will be evidence as to the commission of any such offence; or

(c)        Any thing which there are reasonable grounds for believing is intended to be used for the purpose of committing any such offence—

may issue a search warrant in respect of that thing.

(2)        An application for a warrant under subsection (1) of this section may be  made  only  by  a  member  of  the  Police  authorised  under section 43(2) of this Act.

…

46        Powers conferred by warrant

(1)        Subject to any special conditions specified in the warrant pursuant to section 45(3) of this Act, every warrant issued under section 44 of this Act shall authorise the member of the Police executing the warrant—

(a)        To  enter  and  search  the  place  or  thing  specified  in  the warrant at any time by day or night during the currency of the warrant; and

(b)        To  use  such  assistants  as  may  be  reasonable  in  the circumstances for the purpose of the entry and search; and

(c)        To use such force as is reasonable in the circumstances for the purposes of effecting entry, and for breaking open anything in or on the place searched; and

(d)	To search for and seize any thing referred to in section 44(1)
of this Act.

(2)        Every  person  called  upon  to  assist  any  member  of  the  Police executing a warrant issued under section 44 of this Act shall have the powers described in paragraphs (c) and (d) of subsection (1) of this section.

[34]     Those provisions link the power to search and seize which may be conferred by  a  warrant  issued  under  the  MACMA  to  the  particular  offence  or  offences described in the warrant.

[35]     To  draw  these  threads  together,  there  are  three  key  deficiencies  in  the warrants identified in the first ground of invalidity:

(a)       The warrants were defective in form as they did not stipulate the country under whose laws the offence is alleged to have been committed.

(b)       The warrants did not identify an offence as required by the MACMA; they merely referred to the nebulous concept of “Breach of Copy Right.”   Nor could the offence or offences to which they related reasonably be inferred from a reading of the warrant as a whole.

(c)       The warrants were not issued in respect of a particular offence or offences as the MACMA requires.15

[36]     There are at least  two  aspects to the deficiency identified in the second ground of invalidity.  First, the warrants were deficient because the Judge could not have had reasonable grounds to believe that all of the items listed were relevant to
the offence or offences.  The evidentiary pre-condition for issue could not then have

15	Failure to stipulate the particular offence is a different defect to failure to identify the type of offence: see Auckland Medical Aid Trust, above n 9, at 735-737.

been  met.  The  second  defect  is  that  the  MACMA  only authorises  the  issue  of warrants where the authority to search and seize is limited to the particular offence or offences.  The authority conferred here was not so limited.

[37]     Counsel for the Police sought to categorise these defects as mere defects in expression.  The warrants were misleading, but capable of being cured by reference to the other material available to the plaintiffs on the day.  That material, it is argued, clarified the meaning and intent of the warrants.   However in my view, only the defect described in [35(a)] can be properly characterised in this way.   The other defects go to the heart of the warrants because the warrants as sought and as issued did not limit the authority conferred as the statutory scheme required.  These defects are not properly categorised as minor, as technical, or mere defects in expression.

[38]     It  would  be  highly undesirable  were  a  Court  to  take  a  patch  and  mend approach to significant defects in warrants such as these, looking to extraneous material available to people on the day and assuming that they, and those searching, regarded the authority conferred by the warrant to be narrowed or shaped by that material.  Even more undesirable when the Judge did not so limit the authority.  A warrant is an important document.  It determines the precise parameters and scope of the Police’s authority to intrude upon the privacy and property rights of individuals. It is axiomatic that it should contain a simple statement of the extent of the search and seizure authorised.

[39]     Rural Timber v Hughes was the case central to the Police’s argument.  In that case the suspected offence was conspiring to defraud the Commissioner of Works by the fraudulent use of truck hubodometers.  The offence was inadequately described in the warrant, the warrant stating only that the suspected offence was “conspiring to defraud  the  Commissioner  of  Works  (Crimes  Act  1961,  s  257)”.    The  Court
observed:16

The suspected offence was described somewhat inadequately in the warrant, in that the precise nature of the alleged conspiracy was not specified and no dates were given.  Reading the warrant together with the schedule, however, a reasonable reader would gather that hubodometers, instruments for tampering therewith, road user charges, and distances were involved.   A

16	Rural Timber, above n 5, at 184.

reasonable reader would have little difficulty in gathering that the alleged conspiracy must involve misrepresentation of the distances travelled by the company's vehicles.  Moreover, there is evidence, relevant to the question of miscarriage of justice, that the  nature of the alleged conspiracy and the general object of the searches was explained both in the briefing of the police and traffic officers who participated in the searches and at the commencement of the searches at Ohingaiti to the company personnel then present.

[40]    There were other defects in the warrants identified, including a lack of specificity.   The items listed in the schedule included such imprecise items as “financial records”, “sales records”, and “hire purchase agreements”.   Of those deficiencies the Court said:17

The categories of documents listed in the schedule are certainly very general, an objection which warrants particular thought, but distances travelled go so much to the heart of a transport company's operations that a very wide net had to be cast.  The expression 'financial records' was too vague but cannot be  in itself enough  to lead  to a finding of  miscarriage  of justice.    The evidence is that some obviously irrelevant documents were not taken away. In view of the tension which, as the Judge said, developed during the Ohingaiti searches, we do not think that the police acted unreasonably in the fairly wholesale seizure which was made.  Reasonableness in the particular circumstances is an important consideration:   see Reynolds v Metropolitan Police Commissioner [1985] QB 881.

[41]     As emerges from those excerpts, the Court found that when the warrant was read as a whole there was adequate particularity as to the offence.   Although the categories of things authorised to be searched through were drawn broadly, this was largely justified given the nature of the offence.   Nevertheless, in light of the sloppiness in the drafting, and the risk that the warrant could mislead, the Court went on to consider the issue of miscarriage of justice.  The Court saw as relevant to this issue the evidence that the nature of the alleged conspiracy and the general object of the  searches  was  explained  in  the  briefing  of  the  search  party  and  at  the
commencement of the searches at the search site.  It said:18

Because of the evidence about the briefing and what was explained on the arrival of the search party at the Ohingaiti premises, the case has to be seen as one in which all concerned, the searchers and those in control of the premises and vehicles searched, knew that the search was intended to be for evidence of a duplicate hubodometer conspiracy.  The Deputy Registrar who issued  the  warrant  must  have  been  of  the  same  mind  in  view  of  the

supporting written statement placed before him.  At all events the evidence does not establish that anyone concerned was under any illusion.

[42]     Counsel for the Police submitted forcefully that the defects in Rural Timber are almost identical to those in this case.  I do not agree.  When the warrants in this case are read as a whole, the nature of the particular offence to which the search related cannot be ascertained.  There was also nothing in the detail contained within the search warrants and schedule that assisted in adequately defining the scope of authority granted.   The Police sought and obtained warrants that enabled them to define, in large part, the scope of what they searched for and seized.  That was not the case in Rural Timber.  I also note that the Police’s own evidence was that they did not have adequate instructions to enable them to assess relevance, and had no request  to  do  so,  a  further  basis  on  which  the  search  in  this  case  should  be
distinguished from that in the Rural Timber case.19

[43]     If I am incorrect in the foregoing analysis and s 204 is capable of curing the relevant deficiencies, I am nevertheless of the view that a miscarriage of justice did result.  A miscarriage will arise if the defect has caused significant prejudice to the person affected.20    In this case, while the material contained in the arrest warrants clarified the nature of the “Breach of Copy Right” offending by linking it to specific offences and making clear that it involved the distribution of works on a computer network, the arrest warrants also potentially added to confusion.  The arrest warrants stipulated offences that the search warrants were not sought or issued for, namely
conspiracy   to   commit   racketeering   and   conspiracy   to   commit   copyright infringement.   More fundamentally this additional information could not cure the defect that the warrants authorised the seizure of items unlimited by the notion of relevance to each offence.   As a consequence, the Police regarded themselves as authorised to carry away and keep a wide category of items without undertaking analysis of whether the items were “things” falling within s 44(1).  They continue to assert that they are so authorised.  This has given rise to a miscarriage of justice.

[44]     For these same reasons, I do not consider that it would be appropriate to exercise the discretion conferred by s 5 of the Judicature Amendment Act to refuse relief.

F.        Was the search unreasonable?

[45]     The Police’s submissions under this heading build upon their arguments in respect of s 204.   Acknowledging that an unlawful search will be unreasonable unless the unlawfulness arises from a minor or technical breach,21 they argue that the deficiencies in this case were minor and technical in light of the evidence as to the manner of execution.  However it follows from the analysis already set out that I do not regard the deficiencies as minor or technical.    The execution of the search warrants was therefore unreasonable.

G.       Abuse of process

[46]     The application for relief in this case does not amount to an abuse of process. The disclosure proceedings referred to by the Police relate to the obligation of the United States of America to make disclosure of the investigative product lawfully gathered by the FBI.  The relief sought here is directed toward obtaining from the Police the return of and/or access to those things gathered through the search of two of the plaintiffs’ homes, which are the plaintiffs’ property, and which were, by definition, not lawfully gathered.   This does not duplicate the relief sought in the disclosure proceedings.

H.       The appropriate relief

[47]     The relief sought in addition to the declarations is focused upon the various hard drives and digital material seized.  The plaintiffs seek orders:

(a)	By way of declaration as referred to earlier;

(b)	In  respect  of  seized  items  that  have  not  yet  been  cloned,  orders requiring a sorting exercise to be undertaken in New Zealand prior to
the creation and shipping of any clones offshore.  The purpose of this

21	R v Williams [2007] 3 NZLR 207 (CA) at [12], [19] and [20].

is to identify irrelevant material that can be returned to the plaintiffs, to protect personal and privileged material contained within seized devices, and to provide clones to the plaintiffs of any devices containing relevant material before “disclosable” clones are sent to the Unites States;

(c)	The provision of existing clones currently held by the Police; and

(d)       In respect of clones that have already been sent to the Unites States, confirmation as to whether those clones are duplicates of the clones currently held in New Zealand, and an order directing the examination of the original devices to check for irrelevant material.  If any devices are found to contain no relevant material, the Police are to return the original devices to the plaintiffs and request the voluntary return of clones and material derived from those clones from the United States.

[48]     Looking first at items that have not yet been cloned, the Police position is that they should not have to provide clones of the various hard drives seized, nor should they have to undertake any analysis of those hard drives to see if they contain any relevant material.   The  Police say they should simply be allowed, as  originally intended, to send all of the items seized to the FBI for searching and analysis.  While accepting that there is almost certainly irrelevant material contained in the hard drives, the Police say that there is no requirement for them to undertake any analysis of the material, and in any case, only the FBI has sufficient knowledge of the operation to undertake such an exercise.  The Police cannot therefore identify and separate  those  hard  drives  containing  relevant  material  from  those  containing nothing of relevance.  Further, the Police say that neither they nor the FBI should be required to clone the hard drives for the plaintiffs before shipping them offshore because of the expense and time involved in that.

[49]     The Police point to the provisions of the new Search and Surveillance Act

2012 in support of their argument that no relief over and above declaratory relief should be granted.  Although they acknowledge that the relevant provisions of the Act were not in force at the time of the search, they say the Act is nevertheless relevant in assessing the actions that were taken by Police.  Their approach to seizing

and holding the relevant along with the irrelevant, in keeping the original hard drives, and in refusing to provide the plaintiffs with clones, is entirely consistent, they say, with the regime created by the Search and Surveillance Act.

[50]     Counsel for the Police suggested that I construct a framework for myself of the hypothetical compliant warrant, and shape the relief around that framework.   I think that a useful suggestion.  As noted earlier, the MACMA regime in force at the time these warrants were issued allowed the search for and seizure of “things” falling within s 44(1)(a) and (b) to be authorised in respect of particular offences, being in this case criminal copyright infringement by distributing copyright works on the Megaupload platform and, by that means also, aiding and abetting criminal copyright infringement.  The warrants should have been sought and executed in those terms.

[51]     According to the law as it stood at that time, having obtained warrants with adequate specificity as to the offences and the proper limits to the authority to search and seize items, the Police should have undertaken a preliminary sorting of items at the search site.22   The Police could then have taken computers and other items with hard  drives  offsite  to  allow  the  final  stage  of  sorting  to  be  undertaken  in  an appropriate environment.   That offsite exercise should have been undertaken promptly.23

[52]     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.    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.

[53]     If anything, I am reinforced in this view by the provisions of the Search and Surveillance Act.   Although the Act was not in force at the time, I accept that its provisions  are  useful  in  the  area  of  discretionary  relief,  as  they  indicate  what
Parliament has concluded is an appropriate balance between the property and privacy

22	They did some sorting on site, although the evidence was that they had only limited information available to them to assist with this task.
23	See the warrants’ judgment, above n 1, at [68]-[77].

interests of individuals and the investigative needs of agencies when it comes to the difficult area of digital data.   Section 112 of the Act provides:

112      Items of uncertain status may be seized

If a person exercising a search power is uncertain whether any item found may lawfully be seized, and it is not reasonably practicable to determine whether that item can be seized at the place or vehicle where the search takes place, the person exercising the search power may remove the item for the purpose of examination or analysis to determine whether it may be lawfully seized.

[54]     Section 110(h) and (i) authorises the agency seizing the data to which the warrant relates:

(h)        to use any reasonable measures to access a computer system or other data storage device located (in whole or in part) at the place, vehicle, or other thing if any intangible material that is the subject of the search may be in that computer system or other device:

(i)         if any intangible material accessed under paragraph (h) is the subject of the search or may otherwise be lawfully seized, to copy that material  (including  by  means  of  previewing,  cloning,  or  other forensic methods either before or after removal for examination):

[55]     The Search and Surveillance Act also provides for a discretion to return original data where a copy of the original would be adequate for investigative or evidential purposes.24   It is clear that originals may be retained where a forensic copy
would be insufficient.  The Police say that forensic copies will not do here.25

[56]     What of a data storage device containing both relevant and irrelevant material

– devices I refer to as “mixed content devices”?  Section 161 provides:

161      Disposal of forensic copies

(1)        A person who makes a forensic copy of any data held in a computer system or other data storage device must, if he or she determines that the data does not contain any evidential material, ensure that the forensic  copy  and  any  copies  made  from that  copy  are  deleted, erased, or otherwise destroyed in a way that prevents retrieval of the copy or copies by any method.

24         Search and Surveillance Act 2012, s 152.   The emphasis within the Act on the provision of copies suggests that, where possible, copies ought to be made and original data returned.
25         They  say  that  originals  must  be  retained  because  many  of  the  electronics  seized  contain encrypted data and have hardware issues, and because there is a possibility that forensic drives may fail which would require the creation of a new image from the original.

(2)        However, if an examination of the data shows that it contains a mixture of data that is evidential material and data that is not evidential material,—

(a)        the forensic copy of the data and any copies made of that copy may be retained in their entirety; and

(b)        that forensic copy and any copies made of that copy may continue to be searched, if such a search was authorised by the search power under which the data was seized and copied.26

[57]     The regime set out in the Search and Surveillance Act is consistent with the approach I have described in paragraph [51]-[52], grounding the right to seize items upon the item’s potential evidential value and not merely upon investigative convenience.

[58]     I have concluded the appropriate remedy is to require the Police to conduct the sorting exercise they should long since have undertaken.   As suggested in the warrants’ judgment they will likely need the assistance of FBI agents to undertake that  exercise.27      If so,  they should  avail  themselves  of that  assistance,  but  that exercise will need to be undertaken onshore, where the material remains subject to the jurisdiction of the New Zealand courts.   Any storage device that is found to
contain no relevant material should be returned to the plaintiffs.   Storage devices with both relevant and irrelevant data, that is to say, mixed content devices, should be cloned and a clone copy provided to the plaintiffs.  This cloning and the provision of clones to the plaintiffs should occur before any material is shipped to the FBI in the United States.

[59]     There may well be an argument that under the law as it stood prior to the Search and Surveillance Act the Police had no right to retain the irrelevant material contained in the mixed content devices, so should be required to separate out the irrelevant and delete it before sending any clones offshore.  Nevertheless, relief in
judicial review proceedings is discretionary.  Beyond film footage and photographs

26         It is not immediately clear what s 161(2)(b) means by “if such a search was authorised by the search power under which the data was seized and copied”.   I also note that this provision applies only to forensic copies, and it is unclear whether the right to continue to search also applies to original data.  However, for the purposes of this judgment I do not need to determine the interpretive issues that will inevitably arise under this legislation.
27         Refer to the affidavit of Michael Poston dated 18 May 2012 at [4] regarding the essential role of the FBI in conducting the sorting exercise.

of family, the plaintiffs have not pointed to any particularly private digital material contained on the devices.  A granular sifting out of all irrelevant material would no doubt be a very substantial task.  I have therefore concluded that the obligation to separate out, and delete or partition off, irrelevant material should be limited to personal photographs and film stored on the devices which is not relevant to the suspected offences of breach of copyright utilising the Megaupload platform.   The evidence was that there is a considerable volume of such material on the devices.  It may be necessary to make further directions to give effect to this aspect of the orders, as I have no evidence as to the technical steps involved in that process.

[60]     I have also concluded that the Police should not be required to identify and delete or partition off material subject to privilege prior to shipping clones.  There is no evidence to suggest that there are significant privilege issues attaching to the material seized, and the evidence is that the FBI have a sophisticated privilege
screening system.28

[61]     Once the sorting and cloning process is complete, and clones provided to the plaintiffs, then clones from which personal photographs and films have been deleted may be shipped to the FBI.

[62]     The  Police  point  to  the  cost  and  time  involved  in  the  sorting  exercised proposed and in the provision to the plaintiffs of cloned copies of the devices.  The cost is largely a result of the size of the net the Police have cast in their search and seizure.  I accept that cost and effort will be involved, but it is cost and effort that arises from the need to deal with the material in a lawful manner.

[63]     That leaves the issue of the existing clones currently held in New Zealand, and those which have already been shipped to the United States.   The Police acknowledge that there are existing clones of some of the seized material, prepared by the FBI and held by the Police.  The Police say that although there is no legal obligation on them to do so, they are prepared to give the existing clones to the plaintiffs  on  receipt  of  passwords  which  would  enable  investigators  to  access

encrypted parts.  Mr Davison QC confirmed during the course of the hearing that the plaintiffs would provide those passwords.

[64]     In respect of those clones which have already been shipped to the United States, the Police are to examine the original devices held in New Zealand and, if any of those devices are found to contain no relevant material, it is my expectation that the original device will be returned to the plaintiffs and that the Police will request the United States authorities to destroy clones of that device, and all material derived from that clone.  The Police are to provide a copy of this judgment to the FBI so that they are aware of this possibility.

I          Orders

[65]     I therefore make orders in the following terms:

(a)	An order by way of declaration that the MACMA search warrants were unlawful;

(b)	In respect of items that have not yet been cloned:

(i)  An  order  that  none  of  the  items  seized,  nor  copies  or  clones thereof,  remaining in  New  Zealand  be permitted  to  leave New Zealand or be accessed in any way other than in accordance with the processes set out in paragraph (b)(ii) below, subject to any further order of the Court;

(ii)  An order providing for the following process to be undertaken at the cost of the Police:29

1.      The review of  all  items  seized,  including the  contents  of digital storage devices, for the purpose of identifying irrelevant material;

2.      Items containing only irrelevant material are to be returned to the plaintiffs;

3.      In respect of items identified as mixed content devices, two different clones must be prepared – one complete clone to be provided to the plaintiffs and one “disclosable” clone, with any personal photographs or film deleted, to be provided to United States authorities after the plaintiffs have received their clone;

4.      In respect of items containing only relevant material, clones must be provided to the plaintiffs before a clone is provided to the United States;

(c)	In respect of items which have already been cloned:

(i)  An order that those clones created by the FBI and currently held by the Police (the existing clones) will be provided to the plaintiffs upon receipt of encryption passwords;

(ii)  In respect of clones that have already been sent to the United States and the original devices that were cloned:

1.      An order by way of declaration that the removal of clones from New Zealand was contrary to the Solicitor-General’s direction to the Commissioner of Police dated 16 February
2012,  was  not  authorised  in  accordance with  s  49  of the

MACMA, and was accordingly unlawful;

2.      An  order  requiring  the  Police  to  provide  confirmation  in writing to the plaintiffs identifying those items the clones of which   have   been   removed   from   New   Zealand,   and confirming whether or not the existing clones are effectively duplicates of the clones removed from New Zealand;

3.      An order requiring the examination of the original devices that were cloned.  If any of these devices are found to contain no relevant material, they are to be returned to the plaintiffs and the Police are to request the United States authorities to

destroy clones of that device, and all material derived from that clone.  The Police are to provide a copy of this judgment to the FBI so that they are aware of this possibility.

[66]     A further issue may arise in respect of those clones which have already been sent to the United States if the examination of the original devices reveals that those devices contain personal photographs or film.  It is my expectation that the FBI will not retain that material.

[67]     I reserve leave for the parties to seek any directions necessary to give effect to the orders above.

[68]     I did not hear the parties on the issue of costs, though the plaintiffs have signalled that they will seek indemnity costs.  I reserve leave for the parties to file memoranda, the plaintiffs within five working days of the date of this decision, and the Police within a further 10 days.

Winkelmann J