The United States of America v Kim Dotcom, Finn Batato, Mathias Ortmann and Bram Van Der Kolk

• Jurisdiction: New Zealand
• Judge: Winkelmann J
• Judgment Date: 16 August 2012
• Neutral Citation: [2012] NZHC 2076
• Docket Number: CIV-2012-404-3026
• Court: High Court
• Date: 16 August 2012

Under the Judicature Act 1972

In the Matter of an application for Judicial Review

Between

The United States of America

Applicant

and

Kim Dotcom, Finn Batato, Mathias Ortmann and Bram Van Der Kolk

First Respondents

and

The District Court at North Shore

Second Respondent

[2012] NZHC 2076

CIV-2012-404-3026

IN THE HIGH COURT OF NEW ZEALAND

AUCKLAND REGISTRY

Application for judicial review of a District Court decision which ordered the applicant to disclose material to the first respondents — applicant sought extradition of respondents for breach of copyright in respect of Megaupload website — whether the New Zealand Bill of Rights Act 1990 applied to extradition hearings — whether general disclosure was allowed for in extradition cases — whether the District Court had erred in deciding eligibility according to whether the extradition offences “would be proved” rather than “could be proved” on the basis of the record of the case.

Counsel:

J Pike, F Sinclair for Applicant

P Davison QC, W Akel and R Woods for First Respondent Mr Dotcom

G J Foley for First Respondents Mr Batato, Mr Ortmann and Mr Van Der Kolk

Paul Davison QC, PO Box 105513, Auckland 1143

G J Foley, PO Box 105267, Auckland 1143

JUDGMENT OF Winkelmann J

INDEX

	Paragraph
A. Introduction	[1]
B. The Background to these proceedings	[5]
1. Extradition pursuant to the Extradition Act 1999	[5]
2. Decision the subject of the review application	[14]
3. Grounds of review	[24]
C. Analysis	[32]
1. Approach to construction of the Extradition Act and application of the Bill of Rights Act 1990	[33]
Nature of the extradition process	[33]
Application of the Bill of Rights Act	[42]
2. The issue for the extradition court under s 24(2)(d)(i) of the Extradition Act	[59]
The same as the issue on committal?	[59]
Does the use of the Record of Case procedure affect the nature of the issue?	[65]
Do the oral evidence provisions of the Summary Proceedings Act affect the nature of the issue?	[84]
3. Disclosure rights	[89]
Overseas authorities	[93]
The New Zealand context	[101]
D Conclusion	[119]
Result	[120]

A. Introduction

1 The Government of the United States of America (the applicant) seeks the extradition of the first respondents on charges relating to the activities of the Megaupload business. It alleges that the first respondents were part of a conspiracy to operate websites which were intended to be used by others to illegally distribute copyrighted content, that the members of the conspiracy knew how their websites were being used, had themselves used the systems to upload, reproduce and distribute copyrighted content, and were aware that they had benefited financially from massive infringement of copyrighted material. Finally it is alleged that they conspired to “launder” the proceeds of that offending.

2 Following the arrest of the first respondents, an extradition hearing was scheduled. In preparation for that hearing, the first respondents applied to the District Court for orders that the applicant disclose certain categories of documents. Disclosure was ordered by Judge Harvey, although the disclosure ordered was less extensive than that sought. 1

3 The applicant seeks to judicially review the decision to order disclosure. It says that the orders made amount to general disclosure, which is unprecedented in New Zealand or elsewhere in the context of extradition, and wrong in law.

4 The applicant's primary submission is that disclosure in relation to extradition cases is extremely limited, consistent with the principles of international comity which inform the extradition process, and that disclosure should only be granted where the person sought for extradition establishes some evidentiary foundation for an argument relevant to this phase of the extradition process, and in respect of which disclosure is necessary.

B. The Background to these proceedings

1. Extradition pursuant to the Extradition Act 1999

5 The Extradition Act 1999 governs all extradition from New Zealand. An “extraditable person” is a person accused of committing an extradition offence against the law of an extradition country. 2 It is common ground that the offences with which the first respondents are charged are extradition offences for the purposes of the Act.

6 Extradition requests made of New Zealand are dealt with under Parts 3, 4 and 5 of the Extradition Act. Part 5 of the Act applies to extradition requests from countries with which New Zealand has no bilateral extradition treaty, or where New Zealand does have a bilateral extradition treaty but the offence is not stipulated in the treaty. In those cases the Minister of Justice must determine whether the request should be dealt with by New Zealand under Part 3 of the Act. If the Minister so determines, the Part 3 process operates in the usual way, depending on the designation of the country making the request.

7 Part 4 of the Extradition Act relates to Australia expressly, and to the United Kingdom, Pitcairn and the Cook Islands by Order in Council. It does not apply to the United States, a fact that has some relevance to the issues on this application as I will come to. Part 4 provides the most streamlined procedure for extradition, reflecting the high relationship of comity between New Zealand and countries subject to that part. It is intended to provide a fast track, simplified extradition procedure. It establishes an endorsed warrants process. A person is eligible for surrender if a warrant for the arrest of the person complying with the requirements of s 41(1) has been produced to the court. In broad terms, if the court is satisfied that the person is an extraditable person in relation to the extradition country and the

offence is an extradition offence in relation to that extradition country, the person is eligible for surrender. 3

8 Part 3 of the Act applies in this case. This part regulates extradition proceedings between New Zealand and commonwealth countries and countries with which New Zealand has a bilateral extradition treaty such as the United States. Extradition requests made to New Zealand under Part 3 can have three phases: request for surrender and arrest following issue of warrant; the eligibility (judicial) phase and the surrender (Ministerial/Executive) phase.

9 Section 24 in Part 3 provides that it is the court that must decide whether the person brought before it pursuant to an arrest warrant is eligible for surrender in relation to the offence or offences for which surrender is sought. In the case of a person accused of an extradition offence, s 24(2)(d)(i) provides that the court must be satisfied that the evidence produced or given at the extradition hearing would “according to the law of New Zealand, but subject to this Act,” justify the person's trial if the conduct had occurred within New Zealand.

10 The person is not eligible for surrender if the s 24 threshold is not met or if the person satisfies the court that a mandatory restriction on surrender applies. The court may also determine the person is not eligible for surrender if a discretionary restriction applies. 4

11 Section 25 applies to exempted countries, a subcategory of those countries to which Part 3 applies. Exempted countries are entitled to produce for the purposes of any determination under s 24(2)(d)(i), evidence in summary form, called a “record of

the case” (ROC). Section 25(2), (3) and (3A) set out the requirements for the ROC as follows

• (2) A record of the case must be prepared by an investigating authority or a prosecutor in an exempted country and must contain—

  • (a) A summary of the evidence acquired to support the request for the surrender of the person; and

  • (b) Other relevant documents, including photographs and copies of documents.

• (3) The record of the case is admissible as evidence if it is accompanied by—

  • (a) An affidavit of an officer of the investigating authority, or of the prosecutor, as the case may be, stating that the record of the case was prepared by, or under the direction of, that officer or that prosecutor and that the evidence has been preserved for use in the person's trial; and

  • (b) a certificate by a person described in subsection (3A) stating that, in his or her opinion, the record of the case discloses the existence of evidence that is sufficient under the law of the exempted country to justify a prosecution in that country.

• (3A) A person referred to in subsection (3)(b) is—

  • (a) the Attorney-General or principal law officer of the exempted country, or his or her deputy or delegate; or i

  • (b) any other person who has, under the law of the exempted country, control over the decision to prosecute.

12 Section 22 provides that for the purposes of the extradition hearing, the court has the same jurisdiction and powers and must conduct the proceedings in the same manner as if the proceedings were a committal hearing for an indictable offence alleged to have been committed within the jurisdiction of New Zealand. 5

13 If the court determines under s 24 that the person is eligible for surrender the extradition process moves to the executive phase. The court issues a warrant for the detention of a person, records in writing the extradition offence or offences in relation to which the court has determined the person is eligible for surrender and sends the Minister a copy of the warrant of detention and the record made. The Minister must then determine whether the person is to be surrendered. The Minister

must not determine that the person is to be surrendered in a number of circumstances including if the Minister is satisfied that a mandatory...