Kim Dotcom Wins Another Round in New Zealand

Kim Dotcom is still on track to having a Merry Christmas. New Zealand High Court Judge J Winkelmann today ruled Kim Dotcom can add the Attorney General, in his capacity as representative of the NZ Government Communications Security Bureau, to his claim for monetary damages resulting from the the illegal search of his mansion and over-the-top commando style raid to effectuate his arrest. She also ruled in his favor on several discovery requests pertaining to the FBI's involvement in the case and NZ's illegal interception of his communications. You can access the opinion here.

To put it in context, the Judge writes: [More..]

I have previously determined that aspects of a Police search and seizure in January 2012, in connection with the plaintiffs, were illegal. Following on from that finding, there was a hearing in August 2012 to consider the plaintiffs’ allegations that the Police search and seizure of the Dotcom mansion was unreasonable because it was illegal, and because the force used was excessive in all the circumstances. I refer to this hearing as the remedies hearing.

After the August hearing, it was learned that the Government Communications Security Bureau (GCSB) had illegally intercepted the Dotcom and co-defendant van der Kolk's communications. Dotcom then asked to add the Attorney General to his lawsuit for damages in his capacity as representative of the GCSB . (The Attorney-General is already joined as representative of the New Zealand Police). He also asked for a bunch of discovery. The Judge explains the relevance and grants his joinder request:

There were two issues in the August 2012 hearing. The first was whether the search pursuant to invalid warrants was unreasonable in all the circumstances. The second was whether the method of search used was unreasonable, because it employed disproportionate force, particularly when alternative courses of action were available to the Police.

...Part of the focus for that hearing was the information which was available to the Police which informed their decision not to follow the normal “knock and announce” approach to search, but instead to land helicopters, armed men and dogs on to the Dotcom property. It was in the course of consideration of this issue that the involvement of the GCSB came to light.

The plaintiffs seek orders by way of declaration that the interception by the GCSB of Mr Dotcom’s and Mr van der Kolk’s communications was unlawful, and an order requiring the New Zealand Police and GCSB to pay compensation to the plaintiffs.


The use made of illegally obtained information is something which bears upon both the extent of illegality and the question of damages.

After ruling Kim Dotcom can add the Attorney General, the Judge addresses his specific discovery requests about the illegal interceptions, who they were shared with and the planning of the raid New Zealand claimed the sought discovery would compromise national security. The Judge didn't buy it.

The New Zealand police are also under the microscope now, including their interactions with the FBI. A month after the January raid, an article appeared in the New Zealand police magazine attempting to justify the raid. It was written by Detective Superintendant Mike Pannett, New Zealand Police Liaison Officer in Washington and is available here. At the time, these two paragraphs stood out at me:

An OFCANZ (Organised & Financial Crime Agency New Zealand)team of five picked up the case last September and worked intently to meet their goal of a mid-January termination... Termination phases were simultaneously carried out in nine countries: New Zealand, Australia, Philippines, Hong Kong, Germany, Canada, Netherlands, United Kingdom and the United States.

...Detective Superintendent Mike Pannett, New Zealand Police Liaison Officer in Washington, monitored termination activities around the world from the FBI’s Multi Agency Command Centre.

Apparently, they also caught the attention at Kim Dotcom's lawyers, who filed an extensive discovery request over the statements. The Attorney General objected saying "the information ... requires disclosure that would create serious difficulty for the Police in terms of their relations with the FBI. The Court didn't agree:

Detective Superintendent Pannett is to provide an affidavit in which he deposes whether he viewed a live feed of any aspect of the New Zealand termination operations and, if he did, provides details particularising the timing and enabling identification of the source of that feed and the locations and events being filmed.

Also, the Judge ordered Detective Inspector Wormald and another police Inspector to provide affidavits on the stationary cameras used during the raid. The Court found Womald's first affidavit contradicted his earlier testimony at a hearing:

The critical issue is whether there was live footage of events unfolding in New Zealand on termination. This is a critical issue because Detective Inspector Wormald stated in an affidavit provided following the remedies hearing, that there was no live coverage of the operations going on at the Dotcom mansion. This affidavit contradicted earlier evidence he had given at the hearing. Footage of the events, if it exists, would be relevant to assessing the nature of Police actions on site at the Dotcom mansion.

She also found there was a "gap in the factual narrative." Now the two officers have to file new affidavits.

New Zealand even has to give up information on whether the spy group "Five Eyes" was involved. (Background here and here.) Dotcom asked for:

Confirmation of all entities to whom the GCSB provided information in relation to this matter. In particular, confirmation is sought of whether any such information was shared with other members of Echelon/“Five Eyes”, including any United States authority.

The Judge said the information could be relevant and told the Attorney General to use the independent counsel she appointed if their were confidentiality issues:

The use made of illegally obtained information is something which bears upon both the extent of illegality and the question of damages. To the extent that there are confidentiality issues, the process utilising Mr Grieve is to be followed.

She describes Mr. Grieve's role as:

Mr Grieve QC has been appointed by me as amicus to advocate for the plaintiffs’ point of view in relation to these documents, on the issues of relevance, and the Sec. 70 issue (confidentiality.)

The extradition hearing is not going to happen for a while. The judge notes that two other rulings she made in Kim Dotcom's favor are being appealed.

What does Kim Dotcom have to say about his latest win? A lot. Follow him on Twitter --@KimDotcom. His U.S. lawyer, Ira Rothken tweets:

The GCSB illegal spying on @KimDotcom is not above the law as High Court adds them as a defendant & orders discovery into US involvement

More background at these earlier posts:

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  • Display: Sort:
    Good For Him! (5.00 / 1) (#1)
    by WillieB on Wed Dec 05, 2012 at 11:43:34 PM EST
    Merry Christmas, Kim Dotcom!