Dotcom extradition fight resumes
Judicial process flawed, charges against four co-accused not valid, lawyers tell Court of Appeal in Wellington
Kpolitics im Dotcom and his former Megaupload associates should not be extradited to the US because the judicial process was flawed and the charges not valid under extradition law, a court has been told.
In the Court of Appeal in Wellington yesterday, lawyers for the coaccused said one example of this was the failure to disclose the illegal spying by the Government Communications Security Bureau when applying for an arrest warrant.
The hearing started yesterday, the latest saga in an ongoing process dating back to a dawn raid on the Dotcom mansion in January 2012.
Dotcom, who wasn’t in court, Matthias Ortmann, Bram van der Kolk and Finn Batato were arrested for their involvement in the Megaupload file-sharing site. They face charges of criminal copyright breaches, moneylaundering and of running an organ- ised criminal enterprise.
The Government’s lawyers have been trying to extradite Dotcom and his co-accused to the US and a district court ruled the extradition should go ahead. That was appealed to the High Court, and was again upheld. However, the co-accused gained a substantial win by having the court recognise there was no such thing as criminal copyright in New Zealand law.
But the court accepted that other US charges matched New Zealand laws, and therefore qualified as extradition offences.
Yesterday lawyers for the coaccused told the court the US copyright charges did not apply under New Zealand law.
Grant Illingworth, QC, counsel for Ortmann and van der Kolk, said some judicial procedures in the extradition process were invalid. Illingworth said double criminality — an offence under US law that can be matched to an offence under New Zealand law — applied and a prima facie case had to be established to make it an extradition offence.
But Justice Forrie Miller challenged the strength of Illingworth’s argument that the judicial process was not properly followed.
“Even if you succeed, you’re still faced with a High Court judgment . . . that said, ‘Is there a prima facie case?’, and the court said, ‘Yes, with bells on’.
“You’re going to have to persuade us that the [High Court] judgment . . . was wrong.”
Illingworth said the purpose of the law was to use New Zealand law as a yardstick for establishing a prima facie case, and to do that the court had to look at the conduct behind the alleged offending: “The underlying conduct is the important factor.”
He used the money-laundering charge as an example.
“What is the conduct alleged in the indictment . . . New Zealand law requires concealment, and the US accepts there has been no concealment in this case.”
Illingworth referred to changes in New Zealand law around homosexual sex acts and abortion to illustrate how domestic laws could become out of sync with the laws of countries that had extradition treaties with New Zealand.
“New Zealand law prevails in the event of conflict between the provisions of the treaty and the local law.”
Illingworth also said the process of applying for the arrest warrant was improper.
“We say that there was misleading conduct at that stage because there was no reference to the fact that information had been gathered illegally by the GCSB, and we have a judgment of the High Court to demonstrate that illegality.
“It calls into question the jurisdic- tion of the district court to embark on the proceedings.”
The trial, which was adjourned for the day, should take up to four weeks.
The saga has been fraught from the outset with questions about police use of the elite anti-terrorist squad to carry out the raid, and the discovery the GCSB had unlawfully spied on the targets.
Last year, a secret settlement was made between Dotcom and police over alleged unreasonable force, in which police are believed to have paid a six-figure sum to the millionaire.
Regardless of what the Court of Appeal decides, either side is expected to ask the Supreme Court to hear a further appeal. If that fails, the next step in the process would involve Justice Minister Andrew Little being asked to sign off on extradition.
That can also be challenged through a judicial review application to the High Court.