Police won't say what top Dotcom cop knew

Malcolm Burgess acted as the FBI's conduit to police hierarchy. Photo / Martin Sykes

Assistant Commissioner Malcolm Burgess was an integral figure leading up to the raid on Dotcom's mansion.

Police are refusing to say whether one of the country's most senior officers knew about illegal spying on Kim Dotcom, even though he was an integral figure in the months leading up to the high-profile raid.

Assistant Commissioner Malcolm Burgess first heard the FBI's formal request for help and acted as the conduit to police hierarchy.

He was also director of the Organised and Financial Crime Agency of New Zealand, which ran the operation leading to Mr Dotcom's arrest, and later approved the use of the elite Special Tactics Group to raid Mr Dotcom's mansion in the January 20 raid.

The police are facing criticism after asking the Government Communications Security Bureau to spy on the internet tycoon.

The spying turned out to be illegal as the bureau is banned from spying on New Zealand residents and citizens.

Green Party co-leader Russel Norman, who laid a complaint over the spying, said police told him they would announce today options for dealing with his complaint. "They are in a difficult situation because of their role in all of this."

Information before the High Court in Auckland shows Mr Burgess was among the first to meet the FBI on October 31 - almost a year ago. The meeting was attended by the FBI agent leading the global inquiry, two fellow agents and prosecutor Jay Prabhu, the head of the US cybercrime unit.

The Ofcanz deputy director Detective Inspector Grant Wormald told the court in August: "It was only at the conclusion of that meeting that assistant commissioner Burgess gave tacit approval to the continuation of police action in New Zealand, subject to discussion with the police executive."

Mr Burgess was not listed as present at the December 14 meeting, when Mr Wormald met members of the GCSB. The Crown Law Office memo to the high court stated the GCSB was engaged by police to track the accused and supply "any information indicating risk factors effecting any arrest". Mr Burgess emerged again when the police report assessing the use of the STG was submitted for approval. It specifically covered the risk faced by officers. Police refuse to say whether any of the information from the illegal spying was used in the report, which had elements deleted before being submitted to the court.

Mr Burgess' approval of the STG in the raid was questioned in court as it appeared outside the proper police process. The chart for approval of the STG listed the commissioner, deputy commissioners and the assistant commissioner (operations). Mr Burgess holds none of those roles. Mr Wormald told the court: "There has to be flexibility. The person named on the chart [as approved] might not be around."

A police spokeswoman said: "GCSB involvement in this case is a matter the court is considering.

"We do not believe it is proper to comment on any aspect of that involvement at this point."