(a) The warrants did not adequately describe the offences to which they related. Indeed they fell well short of that. They were general warrants, and as such, are invalid.

(b) 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 within them both relevant and irrelevant material. The Police acted on this authorisation. The warrants could not authorise seizure of irrelevant material, and are therefore invalid.

© If the warrants had been adequately specific as to offence and scope of search, it may still have been appropriate for the issuing Judge to impose conditions. Conditions could have addressed the offsite sorting process, which was inevitable for the items taken away from the search sites. 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 their clones.

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

(e) If I am wrong that the warrants were invalid, then it is nevertheless clear that the Police, in executing the warrants, have exceeded what they could lawfully be authorised to do. This is because they continue to hold, along with the relevant, irrelevant material. The Police have adopted this approach because they have no request from the United States Central Authority to sort the relevant from the irrelevant, and in any event do not have the ability to undertake this exercise without assistance. The Police faced operational difficulties in executing these search warrants in a lawful manner because they are not the investigating officers with knowledge of the operation. The provisions of the MACMA [Mutual Assistance in Criminal Matters Act 1992] are however sufficiently flexible to enable the Police to involve overseas investigating officers in the execution of warrants to meet this operational difficulty.

(f) The release of the cloned hard drives to the FBI for shipping to the United States was contrary to the 16 February direction given under s 49(2) of the MACMA that the items seized were to remain in the custody and control of the Commissioner of Police. It was therefore in contravention of s 49(3) of the MACMA.

(g) The New Zealand Central Authority argued that any breach of s 49(3) was technical because the plaintiffs consented to the shipment of the clones to the FBI in the United States. I have found that no consent was given by the plaintiffs. Given the confused narrative of events that emerges from the correspondence and affidavits and the incomplete nature of the evidence, I do not propose to make any finding beyond that.

(h) The New Zealand Central Authority also argued that the Deputy Solicitor-General would have given a direction under s 49(2) authorising the shipment of the clones to the FBI in the United States, had he been asked. Any contravention of s 49(3) was therefore technical. I do not accept that the Deputy Solicitor-General would have given such a direction, if informed that the status of all items seized, including copies of those items, was the subject of an application by the plaintiffs to the District Court.

What about relief? It's less clear:

[I46] For the reasons given at paragraph [35] above, I am satisfied that declarations should issue in relation to the validity of the warrants and the transfer of the clones. I will hear counsel in relation to the form of those declarations if counsel are unable to agree on them.

[147] I am not at this point prepared to make the remaining orders sought. Given the extent of the challenges, and the nature of my findings, I require to hear further from counsel as to the appropriate remedy or remedies before making any order. This proceeding can be listed before me at 10 am on 4 July 2012 (prior to the hearing of the related judicial review proceedings) for the purposes of timetabling necessary
steps for that purpose.

Here's a timeline.

Shorter version: Kim DotCom is Winning! On to MegaBox.