29 Jun 2012

Decision due next week on Dotcom evidence

2:11 pm on 29 June 2012

The Chief High Court Judge will decide next week what should be done with evidence illegally seized from internet millionaire Kim Dotcom's property in a police raid in January.

Justice Helen Winkelmann on Thursday ruled that New Zealand authorities failed to properly carry out two major aspects of the Megaupload founder's internet copyright and extradition case.

The judge ruled that search warrants used by police were invalid because they were too vague and the removal from New Zealand of cloned copies of hard drives seized was unlawful.

Justice Winkelmann requested that all remaining evidence remain in New Zealand until further notice.

At a hearing next week, she and the two sides will discuss the impact of the ruling and what should happen to both the relevant and irrelevant material seized in the police raid in January.

Mr Dotcom's lawyers are seeking the return of their client's personal information, and copies of evidence which will be used against him at his extradition hearing in August. Crown lawyers acting on behalf of the FBI are not commenting.

Mr Dotcom was arrested in January when 70 police raided his mansion during an investigation into the Megaupload website.

He and three other men are facing extradition to the US on charges of internet piracy and money laundering.

Ruling won't cause case to fold - lawyer

The High Court ruling may be a blow to one side but won't necessarily derail the whole case, a New Zealand lawyer says.

Convenor of the Law Society criminal law committee Jonathan Krebs told Nine to Noon that if evidence was taken illegally, Mr Dotcom's lawyers could argue that it should be omitted from the trial.

"If evidence is unlawfully obtained and inadmissable, and the judge therefore can't consider it, that is a severe blow to the strength of one side's argument.

"That's not to say the case will fall over. It may be that there is a lot of other evidence which the authorities are able to put before the court."

Otago University law professor Kevin Dawkins says Justice Winkelmann's ruling stopped short of saying the evidence was inadmissible.

"Although the search and seizure was illegal, she did not rule that it amounted to unreasonable search and seizure for the purposes of the New Zealand Bill of Rights Act."

Professor Dawkins says material seized from Mr Dotcom's house was in the possession of US authorities for at least a month and they would have been able to analyse the material to prepare a case.

Raid was 'wrongful intrusion'

Mr Dotcom's US-based lawyer, Ira Rothken, says the High Court ruling is embarrassing given the US has called the matter the largest copyright case in history.

"One would think, with such a large case, that they would have a higher standard of care in how they conducted themselves."

Mr Rothken says he is looking at using the High Court ruling to try to prevent Kim Dotcom from being extradited.

"In terms of egregious behaviour, this is at the high end of the scale of egregious, wrongful intrusion on privacy."

Mr Rothken says the ruling seems to support the view that New Zealand authorities were acting at the beck and call of the FBI when they raided Mr Dotcom's property and arrested him.

Police say they are in discussions with Crown Law to determine what further action might be taken and will make no further comment until that process was complete.

Prosecutors in the United States have said the four accused netted $US175 million since 2005 from the copying and distributing of music, movies and other copyrighted content via the Megaupload website.

Mr Dotcom's lawyers say his company simply offered online storage.

Case returns to court

Meanwhile, the Megaupload case is heading back to court in the United States this week with legal action by the Electronic Frontier Foundation.

The lobby group advocates for free speech, privacy and consumer rights in the digital era and will ask a federal judge on Friday to order the return of data to a Megaupload customer.

Federation spokesperson Rebecca Jeschke said Kyle Goodwin had a business videoing school sports matches.

He stored the video on Megaupload and lost access to the material when the site was shut down.