The Wrong Legacy

The news media have been having a busy time lately writing obituaries in anticipation of Sir Paul Holmes' demise.   When teams of journalists are not producing Holmes-deathwatch copy, they have their eyes on that big German guy with all the internet businesses and legal troubles. If Kim Dotcom says or tweets anything, you can bet it will end up in the news.

A Diabolically Clever Plan

David#1:  Great news, David! I have irrefutable evidence that John Key's been lying to the nation over what he knew about Kim Dotcom!

David#2: That is indeed great news, David. Tell me more.

Something Rotten

When Bronwyn Pullar blew the whistle on ACC's massive privacy breaches, she was outed. We don't know who, but it was most likely someone within ACC who fed her name to the media. Or someone in the Minister's office.

Memory Loss

Questions need to be raised about the capacity of our Prime Minister, after yet another inexplicable memory lapse from our nation's leader.

John Key has been under pressure for weeks over what he knew about Kim Dotcom and the illegal GCSB monitoring of Mr Dotcom.

So It's Possible

It's entirely possible that police will find evidence of criminal offending by GCSB staff and will proceed to charge the individuals concerned.

Just Like That Other Time

Green Party co-leader Russel Norman has complained to police over the allegedly illegal recording of a private conversation.

John Key has called the complaint a political stunt. He obviously has a very short memory.

What Next?

So now that the Neazor Report tells us pretty much what we already knew (should we have expected something more? What an anti-climax), what now? Will anyone be disciplined? Will anyone resign?

No Sympathy

Kim Dotcom has no right to be outraged over the covert recording of his conversations.

If he wanted total privacy he should have held those conversations in an Epsom cafe.

The Dotcom Shambles: A New Chapter

I'm not the biggest fan of Kim Dotcom, but his treatment at the hands of our intelligence and law enforcement agencies has been nothing short of disgraceful.

It began with police raiding the Dotcom mansion and treating Dotcom and his people like they were international terrorists.

Dotcom Wins Battles, But War Is Not Won

I don't know if Kim Dotcom has a PR adviser, or if's he's just making it up himself as he goes along. Because whatever he's doing is brilliant.

Forget the the tightly-scripted media interview complete with tears, or the full Woman's Weekly spread. Kim Dotcom's approach is more hands-on. He may be a squillionaire (even if most of his assets have been seized), but the image he presents is one of a guy who just wants to have some fun.

Inviting a tech-savvy and connected internet geek to have a swim with him over the weekend was a stroke of genius. This move guaranteed that the event would go viral over social media and would then hit the mainstream media.

Now he's on a charm offensive, turning up last night to the filming of the last ever episode of Media 7, and tonight he's the guest speaker at a public meeting in Coatesville.

To top things off for Dotcom, he's had another win in the courts, with a High Court judge today ruling that the warrants obtained for the raid on Dotcom's house were invalid.

I don't know much about Dotcom, other than what I see or read in the media. It's safe to say, though, that's he's not your average multi-millionaire. The enormous mansion, the fast cars, the crazy antics, are all part of a larger-than-life persona. It's a picture that clashes with the one the US government wants us to believe. In the eyes of the United States government, Dotcom is little better than a Bond super-villain, being the brain behind a vast criminal conspiracy that involves racketeering, copyright infringement and money laundering.

However, the battle over Dotcom's future (a New Zealand mansion or a US jail) won't be determined by the number of Twitter followers he can amass. He will be pleased, then, that he seems to be winning most of the legal battles to date.

Today's ruling by Justice Winkelmann found that the warrants obtained by police in their farcical raid on the Dotcom mansion were illegal, because they did not adequately describe the nature of the offences to which they were related.

Justice Winkelmann also ruled that because the warrants were expressed to capture a broad range of materials, some of which would inevitably be irrelevant to the investigation, the warrants were invalid.

The judge went on to suggest that the police ought to have sought conditions in relation to the warrants, setting out how the evidence could be dealt with. Presumably such conditions would have assisted police and FBI agents, ensuring they knew exactly what the scope of their authority was.

Justice Winkelmann also ruled that the release of cloned hard drives by police to the FBI was in breach of the Solicitor-General's direction under section 49(2) of the Mutual Assistance in Criminal Matters Act 1982. That direction stated that items seized were to remain with the Commissioner of Police until further direction. The lawyers for the Crown tried to argue that Dotcom and his fellow plaintiffs consented to the release to the FBI of the material, but the judge did not accept this argument.

The judge ruled that the Crown must seek the return of the cloned material from the FBI, and must appoint an independent lawyer to determine which evidence is relevant and which is irrelevant. Relevant material will then be provided to the US authorities.

The judge declined to rule on the admissibility of any evidence in proceedings. Those matters will be heard next week.

But by obtaining an order that evidence was obtained by unlawful means, the plaintiffs have given themselves a fighting chance of having some or all of the evidence secured via the warrants ruled inadmissible. On the other hand, the Crown will argue that any technical irregularities in the warrants were not fatal, and that while the process was flawed the evidence itself is able to be used by police. It might turn out that this victory by Dotcom, while embarrassing to police, means very little.

The onus is on the police to get their warrants right, but in reading through the judge's reasoning, particularly in relation to the judgements officers are expected to make at the scene in determining whether something is relevant or not, it is difficult not to have some sympathy for the role of the humble police officer who has to make an on-the-spot call.

On the other hand, the words of Lord Camden in Entinck v Carrington [1765] EWHC KB J98 still ring loud in the ears of our judiciary:

The great end, for which men entered into society, was to secure their property. That right is preserved sacred and incommunicable in all instances, where it has not been taken away or abridged by some public law for the good of the whole. The cases where this right of property is set aside by private law, are various. Distresses, executions, forfeitures, taxes etc are all of this description; wherein every man by common consent gives up that right, for the sake of justice and the general good. By the laws of England, every invasion of private property, be it ever so minute, is a trespass. No man can set his foot upon my ground without my license, but he is liable to an action, though the damage be nothing; which is proved by every declaration in trespass, where the defendant is called upon to answer for bruising the grass and even treading upon the soil. If he admits the fact, he is bound to show by way of justification, that some positive law has empowered or excused him. The justification is submitted to the judges, who are to look into the books; and if such a justification can be maintained by the text of the statute law, or by the principles of common law. If no excuse can be found or produced, the silence of the books is an authority against the defendant, and the plaintiff must have judgment.

Judges will always construe the rights of police and law enforcement agencies very narrowly. The judgment in this case appears on the face of it to be consistent with that line of reasoning, even if to some it will appear as if the errors in the warrants were "mere technicalities".

Whatever happens at the hearing next week, we should expect the losing party to appeal.

Harry Hindenberg: Breach Of Contract

The latest column from acclaimed Papakura lawyer Harry Hindenberg 

I'm always saddened when people don't comply with their contractual obligations.

I know how disappointing it can be when someone lets you down after you've paid good money for their services, because my clients are always telling me so. "An incompetent disgusting pervert" was how one client described me, though if you ask me her judgement was a little on the harsh side. I may not be a saint, and raiding someone's trust fund without their knowledge in order to pay for prostitutes may even be a crime (technically, anyway), but there are far worse sins committed by others every day.  "Let he who is without sin cast the first stone", is my standard defence whenever I am called before the Law Society to explain myself.

So I can understand the hurt Kim Dotcom must be feeling right now. He paid good money for his politician, but his politician has turned out to be a bit of a let-down.

But what can Mr Dotcom do about his disappointment? Might he have a legal remedy?

As a streetwise lawyer who focuses on results rather than details, I seldom bother with the black-letter law. When a client comes to me with a problem they don't care that there might be an Act of Parliament that deals with the very situation and provides a clear remedy. No, when my clients come to me what they really want is vengeance, even if they don't know it yet. I give them that vengeance by making sure their cases are dragged through the court system to the bitter end, and by persuading them not to foolishly settle.

"Don't be swayed by the weasel-words of the other party's lawyer" I tell my clients, "and don't listen to the judge when he says your claim for emotional distress is flimsy and is in any case almost certainly statute-barred. How can he know the pain you are feeling right now after running out of Marmite? I know Sanitarium will cave in soon, I just know it! By the way, here is my latest invoice. Wait, are you okay? You look pale. Shall I get you a glass of water? Let me just add that to the bill under 'miscellaneous disbursements'. Yes, I know it's a lot of money, but I'm seriously indebted to my dealer, and if he breaks my legs I'm not going to be able to stand up and give my big closing address. And could you pay the bill now? Right now? Cash would be preferable, because we don't want to leave a trail for those IRD boys, do we? No, that's all-right, I can wait a few minutes to see if your chest pains subside, and then we'll go off to the bank together, although I might just wait outside if you don't mind. The bank manager wants to talk to me about my overdrawn trust account, and I don't want to face him until after the 3:20 at Addington."

But it's not all about winning, as I tell every client after their case is thrown out of court and they end up facing an astronomical costs claim from the defence.

Anyway, as I was saying, black-letter law does not interest me. If you want a lawyer who has a handle on all the relevant legislation and cases, then be my guest. If you prefer the services of someone who finished high school and didn't have to purchase his law degree over the internet, then good luck to you I say.

But if you want someone who gets results then you should call me.

Having purchased a good number of public officials over the years, I strongly believe that you should get what you paid for. Mr Dotcom paid a lot of money for his politician, and what does he have to show for it? Not a lot. He should sue Mr Banks for breach of contract, and I will laugh in the face of any lawyer who claims no such contract exists, or that any such contract is illegal and unenforceable.

But if Mr Banks should be reading this, let me make it clear that my earlier offer to represent you still stands. I don't see any ethical dilemma in representing two parties to the same dispute, although the reason why I don't see one is because I keep closing my eyes and saying "la la la la la la!" every time someone even mentions the term "conflict of interest". There will be time to deal with the Law Society and its technicalities another day, and hopefully when that day comes I'll be in the south of Spain living it up.

So call me, Kim Dotcom. We will make glorious litigation together.