Dotcom, Batato, Ortmann and Van Der Kolk v The United States of America

JurisdictionNew Zealand
CourtSupreme Court
JudgeElias CJ,McGrath,Blanchard JJ,McGrath J,William Young J,Glazebrook J
Judgment Date21 March 2014
Neutral Citation[2014] NZSC 24
Date21 March 2014
Docket NumberSC 30 /2013

[2014] NZSC 24

IN THE SUPREME COURT OF NEW ZEALAND

Court:

Elias CJ, McGrath, William Young, Glazebrook and Blanchard JJ

SC 30 /2013

Between
Kim Dotcom, Finn Batato, Mathias Ortmann and Bram Van Der Kolk
Appellants
and
The United States of America
First Respondent
The District Court at North Shore
Second Respondent
Counsel:

P J Davison QC, W Akel and R C Woods for the Appellant Dotcom

G J S R Foley and L F Stringer for the Appellants Batato, Ortmann and van der Kolk

Solicitor-General M R Heron QC and F R J Sinclair for the First Respondent

Bill of Rights, Criminal Procedure Catch lines: Appeal from a Court of Appeal (“CA”) decision which overturned disclosure orders first made by the District Court (“the second respondent”) and upheld in judicial review to the High Court — appellants sought disclosure of documents relied on to establish eligibility for surrender under Part 3 Extradition Act 1999 (“EA”) (extradition from New Zealand to certain treaty countries) — first respondent sought extradition of the appellants on criminal charges of copyright infringement, money laundering and wire fraud arising out of Megaupload — whether s25 EA (record of case may be submitted by exempted country at hearing) required provision of copies of the documents relied on to establish a prima facie case if their effect was summarised in the summary of evidence in the record of the case — whether the request for extradition meant the appellants had been charged with an offence so as to engage s24 New Zealand Bill of Rights Act 1990 (“NZBORA”) (rights of persons charged) and s25 NZBORA (minimum standards of criminal procedure) — whether s27 NZBORA (right to natural justice) applied — whether the Criminal Disclosure Act 2008 applied to extradition proceedings — whether the DC had power to make orders for disclosure against a requesting state under s22 EA (powers of Court) — whether the first respondent was a party.

The issues were: whether the USA was a party; whether the request for extradition meant the appellants had been charged with an offence so as to engage s24 New Zealand Bill of Rights Act 1990 (“NZBORA”) (rights of persons charged) and s25 NZBORA (minimum standards of criminal procedure); whether s27 NZORA (right to natural justice) applied; whether the Criminal Disclosure Act 2008 (“CDA”) applied; whether the DC had power to make orders for disclosure against a requesting state under s22 EA (powers of Court)

Held: The intituling was in accordance with the usual practice in New Zealand and other common law jurisdictions in extradition proceedings in that the requesting state was cited as a party. Section 25 EA stated that a record of the case “may be submitted by or on behalf of an exempted country”. That contemplated both that the requesting state may directly be before the court, presenting the record of the case, and that there may be a representative acting on behalf of the requesting state. Accordingly, and in disagreement with the Chief Justice, the USA was a party to the extradition proceedings and to the appeal.

There was a strong line of authority in overseas jurisdictions against treating those facing a request for extradition as persons “charged with an offence”. That view reflected the fundamental difference between a process that sought to establish whether there was sufficient evidence for a person to face a trial as opposed to one which determined whether or not the person committed the offence. Section 24 NZBORA and s25 NZBORA were framed to protect the rights of persons who were to be the subject of the criminal trial process, not the extradition process, which had a different limited purpose.

Under s4 CDA, the Act applied to all “criminal proceedings” defined under s6 CDA (interpretation) as “proceedings for an offence for which a conviction may be entered”. On that meaning, the CDA did not directly apply to the extradition process. Parliament had not intended that there would be an operating regime for disclosure of the kind available in domestic criminal proceedings, which would apply to extradition either generally or through orders made by New Zealand courts, until regulations providing for the practice and procedure of DC were promulgated under s102 EA (regulations). Section 25 EA indicated that purpose of the record of the case was to permit a requesting state to rely on a summary of the evidence, rather than its detail, as the basis for establishing a prima facie case. It was well established that the purpose of the extradition legislation, and the international obligations on which it was founded, called for contextual construction that accommodated those differences, rather than an interpretation that necessarily reflected NZ criminal procedural law. The requesting state had the right to decide what evidential material it wished to rely on and put before the DC in a record of the case against the requested person. The state was not required to put forward all information that it wished to rely on at trial or to provide in the record of the case copies of all documents and exhibits summarised therein. Nor was a requesting state subject to a disclosure regime of the kind applicable in domestic criminal proceedings. The requesting state must, however, satisfy the Court that it had put forward sufficient evidence to meet the prima facie case standard and, in doing so, must comply with its obligations of candour to the extradition court.

Section 22(1)(b) EA did not confer on an extradition judge a power to order a requesting state to disclose further information. There was no reference to the CDA in that provision. Reading the CDA into s22(1)(a) EA would involve a recasting of the statutory provisions beyond what Parliament would have contemplated as the scope of that provision within the EA. A judge determining whether a requested person was eligible for surrender had no power under legislation to order disclosure of information by a requesting state. There were, however, other steps that a judge could take where concerns arise over the extent or nature of the information that had been placed before the court. If there was an art 12 in the extradition treaty (if the requested Party required additional evidence or information to enable it to decide on the request for extradition, such evidence or information shall be submitted to it within such time as that Party shall require), the preferable course was for the Judge to formally request that the NZ authorities seek further information from the requesting state.

D's right to observance of the principles of natural justice under s27 NZBORA was engaged by the extradition process. In extradition cases, natural justice required that the person who was the subject of an extradition request was informed of the case against them. A person the subject of extradition proceedings in NZ was not entitled to disclosure of the kind available in domestic criminal proceedings. The entitlement was no more than to receive, in advance of the extradition hearing, the material that the requesting state would rely on before the extradition court.

The orders made in the DC which were upheld by the HC, were wrongly made. The appeal against the CA decision was dismissed.

JUDGMENT OF THE COURT
  • A. The appeal is dismissed.

  • B. Costs are reserved.

REASONS

Elias CJ

[1]

McGrath and Blanchard JJ

[89]

William Young J

[201]

Glazebrook J

[246]

Elias CJ
1

This interlocutory appeal is concerned with disclosure of documents relied on to establish eligibility for surrender under Part 3 of the Extradition Act 1999. Eligibility for surrender is established under s 24 if a judge of the District Court is satisfied that the evidence given or produced would justify the person's trial in New Zealand and that no restrictions on surrender apply. The determination is made at a hearing conducted on the same basis as a committal hearing for an offence committed in New Zealand. Although the final decision whether to surrender someone found to be eligible is a government decision, the question of eligibility for surrender is determined by judicial process and according to New Zealand law, as is made clear by both the Act and the extradition treaty between New Zealand and the requesting country in this case, the United States of America. 1

2

The Minister of Justice has applied for extradition of the appellants to the United States on criminal charges of copyright infringement, money laundering, racketeering, and wire fraud arising out of the operations of the Megaupload group of companies which provided storage of electronic files. These storage sites are said to have been used for massive sharing of files, in evasion of copyright.

3

Since the United States is an “exempted country” under the Act, 2 the judicial hearing to determine eligibility for surrender is being conducted, in accordance with s 25 of the Act, on the basis of a “record of the case”. Under s 25(2) such record must include both “a summary of the evidence acquired to support the request for the surrender of the person” and “other relevant documents, including photographs and copies of documents”. Once the formalities of production required by s 25 are complied with, 3 the record of the case is admissible as evidence without further proof of the matters summarised or the documents contained in it.

4

Two principal questions arise on the appeal. First, whether documents evidencing the commission of the offence charged which are relied upon to justify the person's trial may be summarised or must be provided in the record of the case. Secondly, whether the court determining eligibility for surrender may require additional material to be disclosed.

5

The Court of Appeal 4 has overturned orders for disclosure first made in the District Court 5 and upheld on judicial review to the High Court. 6 It held that s 25 does not require provision of...

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38 cases
  • Ortmann and Others v United States of America and Another
    • New Zealand
    • Court of Appeal
    • 5 July 2018
    ...[2007] NZCA 392 , [2008] 2 NZLR 604 at [65]; citing Police v D [1993] 2 NZLR 526 (CA). 37 At [66]. 38 Dotcom v United States of America [2014] NZSC 24 , [2014] 1 NZLR 355 at [160] per McGrath and Blanchard JJ and [227] per William Young J [ Dotcom(SC)]. 39 Extradition Act 1999, s 24(2) (a)......
  • Daniel Clinton Fitzgerald v R
    • New Zealand
    • Supreme Court
    • 7 October 2021
    ...above n 69, in the reasons of Arnold J at [212]–[213] and [182]–[184] respectively. See, for example, Dotcom v United States of America [2014] NZSC 24, [2014] 1 NZLR 355 at [118]–[120]; and Drew v Attorney-General [2002] 1 NZLR 58 (CA) at [66]–[67]. See also Commissioner of Inland Revenue v......
  • Daniel Clinton Fitzgerald v R
    • New Zealand
    • Supreme Court
    • 7 October 2021
    ...above n 69, in the reasons of Arnold J at [212]–[213] and [182]–[184] respectively. See, for example, Dotcom v United States of America [2014] NZSC 24, [2014] 1 NZLR 355 at [118]–[120]; and Drew v Attorney-General [2002] 1 NZLR 58 (CA) at [66]–[67]. See also Commissioner of Inland Revenue v......
  • Mathias Ortmann v United States of America
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    • Supreme Court
    • 4 November 2020
    ...of China) Order Revocation Order 2020. This observation was endorsed by McGrath and Blanchard JJ in Dotcom v United States of America [2014] NZSC 24, [2014] 1 NZLR 355 [Dotcom SC disclosure judgment] at [165]. Yuen, above n 67, at [18]. future. That arises from subs (3) which makes s 11 sub......
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1 books & journal articles
  • Noticeboard
    • United Kingdom
    • International Journal of Evidence & Proof, The Nbr. 20-3, July 2016
    • 1 July 2016
    ...Bill of Rights Act 1990with extradition and mutual assistance regimes, adopting the New Zealand Supreme Court’s position inDotcom vUSA [2014] NZSC 24 that respondents to extradition applications do not have the rights oflocally charged criminal defendants, but recommending that the values u......

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