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

JurisdictionNew Zealand
CourtHigh Court
JudgeWinkelmann J
Judgment Date16 Aug 2012
Neutral Citation[2012] NZHC 2076
Docket NumberCIV-2012-404-3026

[2012] NZHC 2076




Under the Judicature Act 1972

In the Matter of an application for Judicial Review

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


The District Court at North Shore
Second Respondent

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

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.

Held: The NZBORA applied to extradition proceedings as s3 NZBORA (application) provided that it applied to acts done by the judicial branch of the government of NZ. This was significant to the interpretation of the EA, because of the application of s6 NZBORA (interpretation consistent with Bill of Rights to be preferred). It was plain that some of the rights preserved to an accused person in s24 NZBORA and s25 NZBORA should be applied in extradition cases. The starting point was that the rights recorded in s24 and s25 did not spring up with the NZBORA but found expression there. The NZBORA had not codified all of the human rights and fundamental freedoms in NZ, and the rights of those involved in extradition proceedings were not reduced by its enactment. Further, s27 NZBORA (which the United Stated accepted applied) preserved the right to the observance of principles of natural justice in respect of the extradition hearing.

Extradition hearings were essentially criminal in character and at issue were fundamental rights such as the freedom of movement. In such a context the minimal standards of criminal procedure appropriate to the extradition context should be applied through the vehicle of s27 to ensure a fair hearing. Section 24 and s25 could be seen to provide content to what natural justice required. What procedures were required in each case to achieve fairness would depend on the nature of the proceedings.

The test for committal following a committal hearing was whether the Court was of the opinion that the evidence adduced by the prosecutor was sufficient to put the defendant on trial for an indictable offence. The evidence would be sufficient where it was evidence upon which a reasonable jury, properly instructed, could convict.

It was clear the ROC procedure was intended to smooth the evidentiary path for the requesting state. There was no indication it was intended to create an entirely new procedural scheme for extradition hearings which would exclude the possibility of a defendant calling evidence where it was relevant to the extradition issue, unless it was relevant to show the “manifest unreliability” of the ROC. Section 25 EA did not confer on the ROC a presumption of reliability in the sense that the ROC was to be treated as equivalent to proof of the matters covered, All that s 25 EA conferred was the threshold reliability. On a plain reading of s25(4) (nothing limits evidence that may be admitted to determine if defendant eligible for surrender) the ROC procedure did not limit the evidence which was relevant to the extradition issue which could be filed by either party. A procedure that allowed one party freedom to file evidence in a variety of forms, but which severely restricted the ability of the other to file relevant evidence, could not easily be characterised as fair. If this had been intended, clear legislative language was required.

The EA required that an extradition hearing proceed as if it were a committal hearing, while the SPA provided that a committal hearing would only take place when an oral evidence order had been made. In those circumstances, the DC had determined that the necessity to make an oral evidence order did not exist, since the only purpose of an oral evidence order is to engage the committal process, and that had already been engaged by the EA. However, oral evidence orders did not only engage the committal hearing process, they also defined the scope of the oral evidence to be received at the committal hearing. Section 184B SPA (no oral evidence without order) provided that the Court must not hear oral evidence at a committal hearing, unless an oral evidence order had been made in relation to the person giving that evidence.

Not much turned on this point as this procedural requirement could not alter the nature of the issue for the extradition court. Moreover, s180 SPA (determination of application for oral evidence order) set out the circumstances in which an application for oral evidence order would be granted. The essential test in the extradition context was whether it was in the interests of justice to hear the witness. If the Court was satisfied that the evidence was relevant to the issue that it had to determine, there was no reason why it would not allow the evidence to be called.

There was nothing in the EA which suggested that where the ROC procedure was adopted the person sought was limited to filing evidence relevant only to the issue of “manifest unreliability' of the ROC. The EA had preserved to persons sought the right to a hearing on the s 24(2)(d)(i) EA issue, and they could file evidence relevant to it. The applicant's suggested interpretation would be inconsistent with s27 NZBORA and would create a lopsided hearing. The DC Judge had not erred in his characterisation of the process surrounding the extradition hearing.

The proper starting point for any analysis of the first respondents' rights to disclosure was the EA. Section 22 EA incorporated the committal procedures for indictable offences and applied provisions of the SPA to extradition proceedings. Neither those provisions, nor the Acts more generally, indicated an intention to exclude a right to disclosure. The DC had an inherent power to order disclosure as part of the powers it had to enable it to regulate its own proceedings.

While 25(2) EA was not intended to create a disclosure regime, the country seeking extradition had an obligation of candour, which required it to disclose to the extradition court in the ROC any evidence gathered which could materially affect the extradition court's assessment of whether the threshold had been met.

The ROC as presently comprised did not comply with the requirements of s 25(2) EA as it did not addend the documents referred to directly or indirectly in the ROC in support of the request for surrender. Section 25(2) EA imposed on the requesting state an obligation to include within the ROC both a document summarising the evidence acquired to support the request for surrender of the person and also other relevant documents that supported that request. That suggested a ROC would be comprised of an overview of the case for extradition, a summary of the evidence of witnesses of fact and that it would also addend documents which provided the basis for the summary or were referred to in it. Without disclosure the person sought would be significantly constrained in his or her ability to participate in the hearing, and the requesting state would have a significant advantage in terms of access to information.

The proper extent of the disclosure was that which was relevant to the extradition hearing. By structuring the orders around the elements of the offence, the Judge appropriately limited the scope of the disclosure to that which was relevant to the s24(2)(d)(i) question. In respect of the size of the burden imposed on the United States, on the evidence, much of this material was already in electronic format. The size of the task also reflected the complexity of the case. It could not, however, be permitted to shape the general principle to be applied.

Application for review dismissed.

JUDGMENT OF Winkelmann J



A. Introduction


B. The Background to these proceedings


1. Extradition pursuant to the Extradition Act 1999


2. Decision the subject of the review application


3. Grounds of review


C. Analysis


1. Approach to construction of the Extradition Act and application of the Bill of Rights Act 1990


Nature of the extradition process


Application of the Bill of Rights Act


2. The issue for the extradition court under s 24(2)(d)(i) of the Extradition Act


The same as the issue on committal?


Does the use of the Record of Case procedure affect the nature of the issue?


Do the oral evidence provisions of the Summary Proceedings Act affect the nature of the issue?


3. Disclosure rights


Overseas authorities


The New Zealand context


D Conclusion




A. Introduction

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...

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3 cases
  • Dotcom, Batato, Ortmann and Van Der Kolk v The United States of America
    • New Zealand
    • Supreme Court
    • 21 March 2014
    ...Dotcom (CA)]. 5 Dotcom v United States of America [2012] DCR 661 (Judge DJ Harvey) [ Dotcom (DC)]. 6 United States of America v Dotcom [2012] NZHC 2076 (Winkelmann J) [ Dotcom 7 Dotcom (CA), above n 4, at [89]. 8 At [107]. 9 At [108]. 10 At [108]. 11 Dotcom (DC), above n 5, at [232]. 12 Se......
  • McGrath v The Minister of Justice
    • New Zealand
    • High Court
    • 17 December 2014
    ...Overseas Territory of the Pitcairn, Henderson, Ducie and Oeno Islands”. 2 Extradition Act 1999, s 41 ; United States of America v Dotcom [2012] NZHC 2076 at 3 The Commonwealth of Australia v McGrath DC Christchurch CRI–2012–009–13556, 12 June 2013 [Surrender decision]. 4 McGrath v The Commo......
  • Usa v Dotcom and Others
    • New Zealand
    • Court of Appeal
    • 1 March 2013
    ...on it of a person described in subsection (3A). 1Dotcom v United States of America [2012] DCR 661. 2United States of America v Dotcom [2012] NZHC 2076. 3 17 USC § 512. For a helpful discussion, see Raphael Gutierrez “Save the Slip for the Service Providers: Courts Should Not Give Short Shri......

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