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Court confirms Dotcom can sue GSCB - but clips his wings

Kim Dotcom's right to sue the GCSB for illegal surveillance has been confirmed in a Court of Appeal decision.

But at the same time the internet mogul has suffered a setback in its bid to see all of the evidence the government spy agency collected against him and co-defendant Bram van der Kolk.

The Crown had appealed a December 5, 2012 High Court decision that the Government Communications Security Bureau be made a party to the judicial review of the police raid on his Kim Dotcom's home, and that the internet mogul can seek damages from the spy agency in a hearing set for April. The GCSB has already admitted it failed to realise Mr Dotcom was a New Zealand resident, meaning it was illegal to spy on him and pass information to police.

Kim Dotcom's lawyer, Simpson Grierson partner William Akel, told NBR ONLINE he was pleased the December 5 decision had been confirmed.

"We will be seeking compensation from the GCSB," Mr Akel says.

"At this stage we can't put a figure on it." A figure will form part of his submission at the April hearing.

Mr Akel now expects to be able to grill GCSB staff, "although the Crown may oppose that."

Evidence knock-back
However, the ruling did not all go the defence team's way.

The Court of Appeal deleted the requirement for the Crown to provide Kim Dotcom and co-defendents all evidence collected by GCSB, as ruled by Chief High Court Judge Helen Winkelmann on December 5. The defence team will now only have partial access  to information collected by the spy  agency.

The December 5 decision recorded the request by Messrs Dotcom and van der Kolk for further disclosure of "All information collected by the GCSB in relation to the plaintiffs, their families and any associated individuals."

The Court of Appeal ruling says only information passed on by the GCSB to police can be part of the April hearing.

The court's rationale is that the GCSB has admitted the illegality of its surveillance of Kim Dotcom as a New Zealand resident and the inquiry has the "relatively limited scope" of assessing the appropriate level of compensation.

It also notes that "counsel then acting for the Crown argued that, although some of the material would be relevant," full access to all informaiton collected by the spy agency "would also incorporate disclosure of lawful interceptions relating to those of the respondents who were not New Zealand residents." The Court of Appeal judges accepted this security concern.

Mr Akel told NBR ONLINE that so far the defence team has only had access to an affidavit filed by the GCSB, which he describes as "a very abbreviated summary of information that was provided to the police to support them when Mr Dotcom's home was raid on January 20 last year."

Full access to the GCSB information passed on to police has, at this stage, only been provided to Queen's Counsel Stuart Grieve, who, in an unusual and rare move, was appointed by the Crown to assist with the judicial review.

Mr Grieve will report on that evidence next month at what the defence team anticipates will be a closed hearing.

The remedial hearing is set to resume in the week beginning April 15.

RAW DATA: Read the Court of Appeal decsion


GCSB now a defendant in Dotcom case; Dotcom can seek damages

Dec 6, 2012: Internet mogul Kim Dotcom has won his bid to have the Government Communications Security Bureau included as a defendant to the judicial review of the police raid on his home.

Chief High Court Judge Helen Winkelmann has released her decision joining the GCSB to the proceedings.

The decision means Mr Dotcom’s lawyers will be able to seek documents from GCSB, through the court’s discovery process, as they continue to fight his extradition to the US to face copyright charges in relation to his file-sharing website Megaupload.

The court also allowed him to seek damages from both the police and the GCSB.

The GCSB, specialising in electronic surveillance, became involved in the FBI’s investigation of Mr Dotcom about a year ago.

Its spying on Mr Dotcom, in the lead up his January 20 arrest during a police raid at his home, was later declared illegal because the agency had not checked that Mr Dotcom was a New Zealand resident.

Mr Dotcom pushed for the GCSB to be brought into the proceedings because of his suspicions of its surveillance of him.

Today's High Court decision includes a direction that a New Zealand police liaison officer in Washington, Detective Superintendent Mike Pannett, is to provide details of any of his surveillance of Mr Dotcom and the termination of Megaupload.

Detective Inspector Grant Wormald – who supervised the joint FBI-police raid on Mr Dotcom’s home – has also been ordered to file an affidavit setting out all dealings involving stationary cameras used in the raid.

Justice Winkelmann earlier determined that aspects of the police search and seizure operation at Mr Dotcom’s rented mansion in Coatesville, north of Auckland, was illegal.

ckeall@ nbr.co.nzgbond@nbr.co.nz

More by Chris Keall and Georgina Bond

Comments and questions

Can't wait for this guy to be deported so that maybe the people of New Zealand can be shown:

a. The cost to New Zealand of Kim Dotcon if immigration rules had been applied to his residency application.

versus

b. The cost to New Zealand of Kim Dotcon for not applying immigration rules to his residency application.

Dotcom will be Mayor of Auckland before he is deported.

Agree. How did a guy like this get into NZ in the first place? I'm sure we do not need people like this here. I guess money can buy most things and NZ appears no different.

NZ needs more technology entrepreneurs like Dotcom and less incompetent people like the dumb idiots that call themselves spy agents!

So anyone who sets up a piracy website with a few greedy and unethical tech pals in order to steal that which was developed by others is an entrepreneur is he? I guess that would make a lot of burglars, thieves and conmen entrepreneurs. What, I wonder, would all his supporters say if a foreigner was to get rich selling access to stolen NZ technology?

Apparently money can't buy a successful finance company in New Zealand...

The fact that you "Can't wait for this guy to be deported" completely beggars any credibility in you actually understanding the issues under investigation. Such muddled thinking is evident by your a & b, as if such trivia can in any way compare to the wanton destruction by state organisations of a mega billion $ business without any conviction by a court of law.

The social media team in Coatesville are clicking those 'Like' buttons with a fury today!!

Let's refresh everyone with just what this "internet mogul", potential "Mayor", "technology entrepreneur" has been up to:

http://www.nbr.co.nz/sites/default/files/images/78786408-Mega-Indictment.pdf

Read for yourself and make up your own mind. The indictment has been made by a JURY of the people, for the people.

Say NO to New Zealand being an organised crime safe haven.

You are allowing all the legal posturing and alleged infringements on Mr Dotcom's human rights get in the way of the real case, which is that he is a fugitive and a convicted felon who is wanted on theft and piracy charges in the US. That he and the shady Chinese millionaire (with multiple aliases) wanted by Chinese authorities were both granted residency so easily should cause any decent thinking person unease.

Here here!! Why aren't our "authorities" or "media" following the money trail to investigate how Immigration was bought off?

Who was responsible? Why is the "opposition" staying silent?

How much was New Zealand's homeland security sold for?

Perhaps if the FBI did have jurisdiction here then we'd be getting some real answers.

Roll on deportation day and let him get a public defender in Virginia.

How about the cost to the NZ taxpayer of the police and GCSB getting it completely wrong in their eagerness to play in the FBI sandpit? Whether you like him or not, the courts will decide whether or not he has been treated unfairly - and the early indications are (as the judge's decision indicates) that the authorities got this about as wrong as they possibly could. Could we look any more like dumb-*sses on a world stage ?

Sadly for you, Dotcom has more integrity in his little finger than our PM in sucking up to the US. Heads will roll right from the top down. Good luck KDC. Decent people are behind you.

Despite being a taxpayer, I can't wait for the day when KimDotcom gets a multimillion-dollar compensation payout from the NZ government for the way they have shafted him.

We need more people like Kim Dotcom, and less people who want to suck up to the corrupt puppet that is the US government.

Totally agree. I hope KimDotcom empties the coffers. That way there will be nothing left for the Aborigines of NZ when they want a payout for the air that we are all breathing....

I totally agree with you #2. Certain top officials including GCSB, OFCANZ and especially Police in this country have been allowed to get away with it for too long. Dotcom was truly guided to NZ, so that corruption in our system be exposed. If all of the above pulled it off this time with Dotcom's case, they would have stolen and shared the sale proceeds of all Dotcom's frozen assets, mega millions and he would've lost time with his family... sitting in prison. Luckily, Dotcom comes across articulate and can afford the best legal advisers, otherwise he would be just another victim like many others I've read and heard about, who's had everything stolen and sold off by police, even before proven guilty. Good job! Judge Helen Winkelmann has released her decision joining the GCSB to the proceedings. This certainly will teach some officials that honesty, adherence to moral and ethical principles and to play the game straight for their dream JOB promotion lol

@Anonymouse - I doubt that Dotcom will be extradited. The prosecution in NZ have been told that they have to give fuller disclosure of evidence of its case against Megaupload before the extradition hearing and so far the prosecution has refused to comply. If they continue to refuse then they will no doubt will be in contempt for refusing and the extradition hearing and case could end up being thrown out and extradition to the US refused. It is for the US to prove that the extradition is warranted and so far they are continuing to refuse to give fuller disclosure of evidence. By doing so shows there contempt for the NZ legal system and so it is doubtful that a fair trial will be given to Dotcom in the US.

The USA are thugs who believe their domestic laws supersede that those of foreign, sovereign nations. ake the latest regarding the Patriot Act that the USA have written in such a way that they can pry into European cloud hosting companies in clear violation of European privacy laws.

http://www.cbsnews.com/8301-205_162-57556674/patriot-act-can-obtain-data-in-europe-researchers-say/

If USA are prepared to bully Europe, how on earth does NZ hope to be able to negotiate a fair outcome through the TPP process?

And Megaupload violated the laws of foreign sovereign nations by violating their laws, so your point is what?

Dude, seriously, please go and have dinner with Mum and Dad, finish your homework and go to bed.

Indeed, and no playing x.box, either. And stop emptying your cache over an over so you can keep liking yourself.

It's doubtful he'd receive any trial in the USA.

At least for a couple of years - they'd probably simply store him away somewhere out of the way like the do Bradley Manning (although, hopefully, with more humane treatment than that they afford to Manning).

Except he isn't going to be deported. He's going to prevail. Suck on that.

This knob said he wouldn't sue. Tui.

Um, he's not suing, Einstein.

This doesn't bode well for the govt and John Key.
It just goes to show how corrupt he and his party are.

With each passing day, Dotcom becomes more like a folk hero; while the Police, the GSB and the Crown become more like drongos.

I couldn't care less about Dotcom, but I care even less about those conniving little pr*cks in the GSCB and those in government. I can just imagine all the dozens of secret meetings they will be having now to get their stories straight and practice their lies.

I'm so glad we have uncorrupted judges in this country - at least that's one thing.

But New Zealand is the least corrupt country in the world. Muhahaaahah!

So far, the goverment have been found guilty of more illegal manoeuvers than Kim!

Money and BS do not buy integrity. This .com only serves himself. A self-serving ego-eccentric who can and will only bring the negative to our country, both in terms of reputational harm and harm to the well-being of our society. This is one big narcissist who is clearly a liability to God's Own.

[Edited]

Stop hiding behind 'anonymous' and be a real man. KDC has more integrity than anyone in government or even you with your silly comments.

"Richard" sounds pretty anonymous to me. Just consider that KDC is unpopular and unwanted by those who know about him in his native Germany, where he has criminal convictions, and he's persona non grata in Thailand. Is this unscrupulous narcissist really the sort of person we want in this country? He may be wealthy, but his money was ill-gotten. His game is no different from art forgery, currency counterfeiting or the manufacture of brand name knock-offs in China. His refusal to face the music is a bit like that guy holed up in the Ecuadorean Embassy in London in this respect.

This can't be real? People don't realise what this guy trying to achieve? Are you really proud to have a person like this as part of you?

Absolutely! People who have not been convicted of crimes are welcome here, for sure!

Dot con has multiple prior convictions

So what if Dotcom has multiple prior convictions? I'm more concerned about the corrupt officials in this country that when they get caught lying or breaking the law, they are not convicted, charged with purjury or lose their jobs. They only get a slap on the wrist and the Irrelevant Police Cover-up Authority (IPCA) are as useless as t*ts on a bull. Same laws should apply for everyone. The police motto is "Without fear or Favour". Yeah right! If the Law Society can strike off lawyers, ending their careers, by their own in-house process, so why can't the police bring real discipline to bear against the bad apples in their own barrel.

We talking KDC or Shon Key??

Gotta give credit to the residents of Franklin Rd, not to have a cop or a spook ceremoniously flick their Christmas lights on, lest he electrocuted himself.

Another encouraging day for justice and democracy.

Go Kim... Kim for PM... We need to be sticking it to the Yanks, not sucking up to them or we will end up on the wrong side again!

Good on Justice Winkelmann (cool name, too). For far too long spook govt types have created themselves secret laws to hide their lies and misdeeds behind a cloak of opacity.

Whatever happened to transparent, lawful democratic New Zealand?

Police and GCSB wouldn't know the first thing about transparency. They spend way too much time lying, misleading, conniving and covering-up. They think they are above the law.

Go get 'em, Mr Dotcom. There is no one in NZ with the balls to stand up to them.

Remember Arthur Allan Thomas.

dot com, u my hero bro. U got da cash to take on govts and u wil prevail as they got sloppy. U shud rub it in and start having some hui with Maori. Key wud luv that. LOL

If all goes well and his new download site takes off I believe Dotcom could turn NZ into a new Silicon Valley, bringing untold billions of offshore funds here and changing the character of how new money is made in the new electronic business markets. This in turn will create unheard of opportunities for those who have the foresight and courage to proceed, and not only create fortunes for themselves but compound even more opportunities for everyone.

The US government and the FBI must be kept out of NZ's judicial system.

I think we should rejoice that we have a judge who is prepared to stand on principle. However I think that Mr Dotcom was lucky to get this one.

This is the time that the judiciary prove themselves. They are the last line of defense for our democracy. This Dotcom affair gives me no confidence that NZ will get anything of value out of the free trade agreement with the USA.

All power to Judge Winkelman - sounds like she has got it pretty right so far!!

Funny how all the resources of the US govt couldn't pick up on the fact that Kim Dotcom was only weeks away from casually visiting USA . The govt must have blinked when the usual cartel told them to hurry up, make their stand and do something.

If that's so then what's stopping him from going there now?

Three cheers for Justice Winkleman and for Kim Dotcom.
We need more like him to get our flatlining country moving again.
liberte

Hat tip to Winkleman J. Hard to imagine a male judge from the old boy network standing up to the intense, political pressue she would have been subject to.

This tells us nothing about Aucklanders judgment that we didn't already know!
Aucklanders think this John Schmuck is an honest', upright man.
They also think that McCahon can paint and Dave Dobbyn can sing.
Go figure!!

Congratulations to Mr Dotcom and to Justice Winkelmann.
They're both on the right side of justice.
Good to see at least one judge standing up to political pressure.
WG

Can someone please deport this bum so we don't have to pay a subscription to NBR which comes with 30-plus comments from his social media team.

A convicted felon. Wonder did he tell all when he got into NZ. If not, shouldn't he get deported back to where he came from?

The guy is a con man ... please, can he go before he costs us any more $$$$!!

His missus is hot as!

Harden up cupcakes, stop your moaning and wish for a fair trial eh?

Judicial review doesn't result in monetary compensation, just findings of legality or illegality of process.

Looks like the paid govt "consent manufacturers" showed up ... late and a dollar short as usual, and on the taxpayer dime.

To all the haters on KDC, check your facts before you continue posting your stupid, uneducated comments.
Yes, he has prior convictions and, yes, the NZ agency in charge of letting him into the country new that before he came in - he was honest and upfront about it.
No, he is not a pirate. Other people have gone against the user agreement of Megaupload and put up pirated material. The website had agreements with major movie studios to give them direct access to remove infringing pirate material. This meaning that he is covered by the US DMCA as he complies with it 100% and actually went the extra mile by letting them remove links themselves - that was not required by law.
Even if he was not complying with US law, the company is based in Hong Kong and legally and US cannot charge them.
Kim has offered to go to US to defend himself. He asked for bail and to have funds unfrozen to pay for living expenses and lawyers. The US have not commented on this once. He even reopened his offer recently but still no comment.

The people who are blaming KDC for their pirated material ending up on the internet are lazy, misguided fools who fail to see the big picture.

Yes, yes, that's fair enough comment. We should all check our facts before reading any "stupid uneducated comments", so let's see what both sides have to say:

http://www.nbr.co.nz/sites/default/files/images/78786408-Mega-Indictment.pdf

PS: Paragraph 88 of the above link at NBR seems a very different version of events to what you're saying.

No Sir, It is you who does not see the big picture.
1) KDC, can if he wishes, freely travel to the US of A. What is stopping him?
2) He and his supporters have no regard for property rights.
3) Megaupload is not "Hong Kong", it is everywhere the internet is. Are you saying that that a company "based" in Hong Kong can steal private property or fence stolen property in America, and America can do nothing?
I agree with post #27 and post #10 They express very accurately the feelings of all average NZers south of the Bombay Hills.

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