The Government's lawyers have been ordered to explain how the FBI left the country with evidence in the Kim Dotcom case meant to be kept in "secure custody" by New Zealand police.
High Court chief judge Helen Winkelmann has told the Attorney-General's lawyer, Mike Ruffin, he has until Monday to explain why FBI agents were allowed to take 135 cloned computer and data storage devices to the United States.
At a legal challenge at the High Court in Auckland yesterday, Dotcom's lawyer Paul Davison, QC, called the revelation "high-handed" at best and "at the worst misleading".
Mr Davison and lawyers for Dotcom's three co-accused want a judicial review into search warrants used during FBI-inspired raids on January 20. Dotcom, Finn Batato, Mathias Ortman and Bram van der Kolk were arrested over allegations of criminal copyright violation through their file-sharing website Megaupload.
Mr Davison said he asked for assurances in correspondence with Mr Ruffin's predecessor, Anne Toohey, that no evidence would leave New Zealand shores unless on the back of a court decision.
Crown Law had told him it had "not happened and will not happen without prior warning". He said yesterday was the first time he was aware any material had left the country and there had been an agreement to maintain the "status quo" over the evidence. "There is no approval for the removal of these clones from New Zealand. There has been an excess of authority."
Mr Davison said the correspondence included a statement from the head of the police organised crime squad, Detective Inspector Grant Wormald, that the belongings were held in secure custody.
He said Dotcom's rights had been "subverted or disregarded or worse".
The revelation is the latest embarrassment for the Crown, which has already been exposed for fumbling parts of the case. It used the wrong law to get a court order to seize Dotcom's assets - an error which contributed to the police having to offer an undertaking of liability. There had earlier been discontent over the size, scale and style of the police raid which Davison has said will form a complaint to the Independent Police Conduct Authority.
Yesterday, Mr Ruffin said he was aware the cloned copies had been sent out of New Zealand. However, he said he was unaware of Ms Toohey's assurances to Mr Davison.
Mr Ruffin told the court a set of digital images copied from the computers had been taken to the US. "The actual items seized under the search warrant remain in New Zealand," he said.
The Crown Law Office and Attorney-General Chris Finlayson refused to comment.