IN THE HIGH COURT OF NEW ZEALAND AT AUCKLAND CW 2013-404-2168 IN THE MATTER BETWEEN AND AND of the New Zealand Bill of Rights Act 1990 and the Government Communications Security Bureau Act 2003 KIM DOTCOM of Auckland, Businessman First Plaintiff MONA DOTCOM of Auckland, Married Woman Second Plaintiff BRAM VAN DER KOLK of Auckland, Businessman Third Plaintiff JUNELYN VAN DER KOLK of Auckland, Married Woman Fourth Plaintiff ORTMANN of Auckland, Businessman Fifth Plaintiff FINN BATATO of Auckland, Businessman Sixth Plaintiff ATTORNEY-GENERAL in respect of the New Zealand Police First Defendant ATTORNEY--GENERAL in respect of the Government Communications Security Bureau Second Defendant REPLY TO STATEMENT OF DEFENCE DATED 14 MAY 2013 Dated 28 May 2013 Judicial Officer Winkelmann HIGH COURT - Simpson Grlerson . Counse, &Sl" Pill)' QC 0 mom AUCKLAND ea 1:1 Telephone: +64--9-977 5090 +64--9--977 5028 Email: Facsimiiei DX CX10092 Private Bag 92518 Auckland 1 141 Auckland 1143 Telephone: +64--9--379 2227 Facsimile: +64--9-308 9555 Email: paul.davison@davison.co.nz Guyon Foley Box 105267, Auckland 1143 Teiephone: +64~9--3071300 Facsimile: +64-9-307 8182 Email: gfoiey@gfoley.co.nz To: The Registrar of the High Court at Hamilton and To: The defendants THE PLAINTIFFS SAY BY WAY OF REPLY TO THE STATEMENT OF DEFENCE DATED 14 MAY 2013: 1. Their reply is limited to specifically answering paragraphs 45, 46, 53, 56, 57 and 60; the affirmative defences to the second and third causes of action; and paragraphs 98, 108 and and generally responding to paragraphs 122, 125, 130, 137 and 141 of the defendants' statement of defence dated 14 May 2013. 2. In reply to paragraph 45, they deny any precautions, special or otherwise, that may have been taken during the execution of the warrants because of the second piaintiffs pregnancy were such as to mitigate the unreasonableness of the search andlor seizure as referred to in the statement of claim, and in particuiar, the detaining of the second plaintiff by herself, or separated from her children or those under her care. 3. in reply to paragraph 46, they deny that the role of the STG was to ensure Police were able to secure the property quickly and safely, and with the lowest possible risk of relevant evidence being lost, but was rather part of a preconceived and unjustified use of excessive, aggressive and invasive force, and unreasonable and unnecessary when there was no real risk of relevant evidence being lost, and no such risk had been indicated by any of the information available to the Police, including that information obtained through the involvement of GCSB in Operation Debut. 4. ln repiy to paragraph 53 they say: The first plaintiff believed at all times that the firearms were properly licensed and entitled to be in the premises as they had been obtained by Mr Wayne Ternpero, the head of security, who advised the first plaintiff that he was entitled to have the firearms, and that there was a licence for them. 23537713_1.docx (G) One of the firearms was in a cabinet in Mr Tempero's room, separate from the main residence, while the other firearm was in a cabinet in the safe room. Mr Tempero's room was regarded as a secure room and was customarily locked, and the safe room or "red" room was a secret and concealed room which was considered to be thereby effectively secure. The first plaintiff had instructed Mr Tempero that he did not want to have lethal ammunition in the firearms, at least for the first two rounds. The first plaintiff had never used the two guns since their arrival at the residence. 5. in reply to paragraph 56, they admit that the Police offered to facilitate consultations between the legal advisers and occupants away from the area being searched but further say: (3) (0) 23537?'1 .d0cx At about 11.00 to 11.30 am the legal advisers, Mr Robert Gapes and Ms Vanessa Clements, arrived at one of the gates to the property and explained to Police that they acted for Mr Dotcom and sought access to the property. This request was made both of the officer stationed at the gate, and on subsequent occasions to the officer in charge, Detective Sergeant l-lumphries. Detective Sergeant Humphries refused to give the legal advisers access to the property. At an early stage he responded that the Poiice were involved in a big operation, they needed control over the property, and they could not assign someone to look after them. Some time after the Police first refused entry to the legal advisers, the Police allowed the legal advisers to talk to Dotcom and some staff at the gate house to the main property. At about 5.00pm the legal advisers were permitted to go by road to the adjoining property at 5H The Prom after the Police had concluded their search and seizure operations at that property. 6. In reply to paragraph 57, they deny that the first plaintiff hid from Poiice for approximately 10 minutes after realising Police were searching for him, and that he refused to comply with Police instructions to show his hands, and further say: Not knowing that the assault on the property was a Police raid, the first plaintiff went into the safe or "red" room next to his bedroom after pressing an alarm button that was installed by his bed in case of emergency, in accordance with the household security plan and protocol. The location of the safe room was identified to the Poiice by Mr Wayne Tempero, who also informed police how to open the door of the safe room. The first plaintiff was seated, in front of a pillar at the far end of the safe room, with his arms extended to either side of him showing his open and empty hands, thereby demonstrating that he was not hoiding anything. The first plaintiff was then assaulted in various ways by the police officers without justification, and when the first plaintiff had offered no resistance to them. 7. In reply to paragraph 60, they deny that the damage to doors and other property was necessary in light of the operational requirements associated with the execution of the warrant and they deny that the Police or those acting on their behalf or under their control or authority did not damage any part of the CCTV system when executing the warrant. 8. In reply to the affirmative defences pleaded to the second and third causes of action they apprehend that whether the first defendant was at 23537713_1.d0cx 10. all material times acting in obedience to a court process, and/or in connection with the execution (or purported execution) ofjudicial process and is protected from liability by section 44 of the Policing Act 2008, and sections 6(4) and 6(5) of the Crown Proceedings Act 1950, is a question of mixed law and fact. Protection under these Acts does not, however, extend to or protect from liability the actions undertaken unreasonably, unlawfully or in bad faith. They deny that the first defendant is protected from liability under the said Acts in that in obtaining and/or executing the search warrants, the Police acted unreasonably, unlawfully and/or in bad faith, in such manner as set out in the Statement of Claim. in reply to paragraphs 98, 108, and 128, as at 15 December 2010 the first and second plaintiffs, having been issued with resident class visas on 23 November 2010, which were activated upon their arrival in New Zealand on 15 December 2010, were thereafter entitled to reside in New Zealand indefinitely, and any interception of their communications was unlawful in that it breached section 14 of the Government Communications Security Bureau Act 2003. In reply to the assertions of fact set out in the defendants' Statement of Defence, and in particular in paragraphs 122, 125, 130, 137 and 141, the plaintiffs have no or insufficient knowledge of, and accordingly deny, the matters set out therein. This Reply is filed by AKEL solicitor for the plaintiffs of the firm of Simpson Grierson. The address for service of the Plaintiffs is at the offices of Simpson Grierson, Level 27, 88 Shortland Street, Auckland. Documents for service on the Plaintiffs may be left at that address for service or may be - (8) posted to the solicitor at Private Bag 92518, Auckland; or 23537713__1.docx (C) left for the solicitor at a document exchange for direction to DX or transmitted to the solicitor by facsimiie to+64-9-307 0331; or emailed to the soiicitor at