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Supreme Court upholds validity of Dotcom search warrants, Chief Justice dissents

24 Dec 2014

The Supreme Court has ruled the search warrants executed in the high-profile arrest of internet entrepreneur Kim Dotcom were valid, although Chief Justice Sian Elias was a dissenting voice on the bench.

Justices John McGrath, William Young, Susan Glazebrook, Terence Arnold turned down Dotcom's appeal to have the warrants deemed invalid, saying they were not unreasonably vague and general, upholding a Court of Appeal ruling that their deficiencies weren't substantial enough to declare them void.

"We agree with the Court of Appeal that the appellants were reasonably able to understand what the warrants related to and that the police were adequately informed of what they should be looking for," the judges said in their judgment released today. "Any issues relating to matters such as the way the search of the computers was conducted or the handling of irrelevant material should be addressed through other processes."

Dotcom and his co-accused Finn Batato, Mathias Ortmann and Bram van der Kolk sought to have the warrants ruled invalid as they attempt to head off the US Federal government's bid to extradite them to the US, where they face charges of conspiracy to operate websites used to illegally distribute copyrighted material.

The majority agreed the warrants "could have been drafted rather more precisely," but were persuaded there was no significant prejudice in this case due to the explanations given by Detective Sergeant Stephen Humphries to Dotcom at the time of the search and that the internet entrepreneur understood the contents of the warrant.

"We consider that, viewed in isolation from the other alleged shortcomings, the deficiencies in the warrants in relation to the description of the offences did not result in a miscarriage of justice," the judges said.

Chief Justice Elias dissented from the majority and would have allowed the appeal, saying "the imprecision in the description of the offences exacerbated the overreach of the warrants which, especially in relation to the electronic devices authorised to be seized from domestic premises, was likely to include personal and irrelevant information."

She said the Court of Appeal was wrong to say the judge granting the warrant could rely on police to execute the warrants lawfully, as that was inconsistent with the legislative scheme.

The Chief Justice agreed with Justice Helen Winkelmann's High Court ruling that the warrants' defects didn't limit the authority conferred by law and couldn't be characterised as minor, technical breaches.

"A search warrant properly issued would not have authorised the seizure of irrelevant material, at least not without setting up conditions to ensure secure and expeditious sorting under the supervision of the court," the Chief Justice said. "Where, as here, a search warrant was overbroad and no protective conditions were imposed, the relevant miscarriage of justice is complete. If treated as valid, the warrant is authority for any trespass or breach of privacy entailed."

Dotcom and his co-accused were ordered to pay costs of $35,000 to the Crown.

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