Usa v Dotcom and Others

JurisdictionNew Zealand
CourtCourt of Appeal
JudgeArnold J
Judgment Date01 March 2013
Neutral Citation[2013] NZCA 38
Docket NumberCA526/2012
Date01 March 2013

[2013] NZCA 38



Arnold, Ellen France and French JJ


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 C Pike and F Sinclair for Appellant

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

G J Foley for Messrs Batato, Ortmann and Van der Kolk

Appeal against the dismissal by the High Court (“HC”) of the appellant's application for judicial review of a District Court decision which ordered the appellant to disclose documents to the respondent in an extradition proceeding — cross-appeal by the respondent against the HC decision that an oral evidence order was required before a witness could be called at an extradition hearing — appellant sought to extradite respondents under the Extradition Act 1999 (“EA”) for alleged breach of copyright via the Megaupload website — whether s25(2)(b) EA (record of the case) meant that the record of the case had to include not simply a summary of the evidence relied on, but also the documents which provided the basis for the summary — effect of s27 New Zealand Bill of Rights Act 1990 (right to justice) and s102 EA (regulations).

Held: There was a well-established presumption of statutory interpretation that legislation should be read in a way that was consistent with NZ's international obligations, at least to the extent that its wording permitted. Section 11 EA (construction of extradition treaties) provided that if there was an extradition treaty in force, the provisions of the EA had to be construed to give effect to the treaty. However, s11(2) EA provided that no treaty could be construed to override specified provisions in the EA.

Because extradition proceedings were not concerned with issues of guilt or innocence, all the NZBORA protections that would apply in a criminal trial were not automatically applicable in an extradition hearing, however s27 NZBORA applied.

Article 12 NZ/USA extradition treaty contemplated that NZ could seek further information. An order for disclosure purported to require the requesting state to provide further information — it was not directed at information that was in the hands of the NZ authorities. Under the Act, even though courts played a vital part in the process, extradition was very much a government to government process – the request was directed to the executive, not the courts. This feature also suggested that art 12 provided the appropriate mechanism for further disclosure.

Section 25(4)(b) EA made it clear that nothing in s25 EA limited the evidence that could be admitted at any hearing to determine whether a defendant was eligible for surrender. The word “evidence” in s25(2)(a) EA covered both evidence that witnesses would give and documentary evidence. In that context, it was relevant that the accompanying affidavit referred to in s25(3)(a) EA had to state that the evidence had been preserved for use at the person's trial, a term that covered more than simply oral evidence. The words “other relevant documents” in s25(2)(b) EA had to be interpreted against that background. What was required was a “summary” of the evidence. The evidence to be summarised related to the request for surrender, not to the trial.

While the evidence referred to in the record of the case must be available for trial, the record would not necessarily contain all the evidence that was proposed to lead at trial, although it had to be sufficient to establish that a prime facie case against the suspect. The words “other relevant documents” in s25(2)(b) EA were not a roundabout way of requiring a requesting state to give disclosure of all relevant documents it held as would occur prior to a criminal trial.

Given the language of s 25(2)(b) EA, the USA was not obliged to include in the record of the case all relevant documents whether or not they were summarised or referred to in the summary of evidence prepared under s25(2)(a) EA. Section 25(2)(b) EA required the USA to include documents essential to justifying the extradition request but which could not be, or were not, summarised or referred to in the summary.

Under s102(1)(e)(i) EA the Governor-General had the power to make regulations prescribing the practice and procedure of DC's in relation to proceedings under the EA, including the pre-hearing disclosure of information. The existence of the regulation-making power suggested it was not intended that the ordinary rules relating to disclosure in domestic criminal proceedings would apply to extradition proceedings. The fact that an extradition court could require further disclosure in some contexts did not mean that it could do so in all: potentially, an extradition court had a range of matters to consider, including whether a mandatory or discretionary restriction on extradition applied. Apart from that, these provisions could not override a relevant treaty provision, such as art 12.

The use of the phrase “committal hearing” in s22(1)(a) EA (powers of Court) was significant. Standard committals occured on the papers, without committal hearings, and involved no consideration of the evidence; by contrast, committal hearings occured only after oral evidence orders had been made and were the consequence of such orders. At a committal hearing, the court had to be satisfied that the evidence adduced by the prosecutor was sufficient to put the defendant on trial, otherwise it had to discharge the defendant.

Section 22(1)(a) EA directed that there be a hearing of the nature of a committal hearing. An extradition court therefore had to consider the evidence. It might be thought that this direction rendered oral evidence orders redundant in the extradition context given that they were the trigger for committal hearings in domestic criminal proceedings. Moreover, extradition hearings where the record of the case procedure was used were essentially “on the papers” processes at least as far as the requesting state was concerned.

However, the procedure at committal hearings was dealt with in s184 Summary Proceedings Act 1957 (“SPA”) (procedure of committal hearing). Section 184A(1)(b) SPA required that at a committal hearing the prosecution call each prosecution witness who was to give oral evidence under an oral evidence order and s184A(2)(b) SPA contained a similar provision in relation to the defence. Section 184B SPA (no oral evidence without order) provided that the court could not hear oral evidence from the defendant or a witness unless an oral evidence order had been made in respect of him or her. There did not appear to be any reason why this procedure should not apply in the extradition context. Ultimately, it provided a mechanism for the extradition court to control the extent of any oral evidence, so as to ensure relevance and the like.

While the test to be applied at an extradition hearing was the same as that applicable to a committal hearing, the process to be followed had to be modified in some respects to take account of the record of the case procedure. The record of the case did not contain evidence in the traditional sense but rather a summary of the evidence available to the requesting state for trial. It was admissible as evidence in the extradition hearing only by virtue of s25 and only if accompanied by an affidavit from an investigating officer or prosecutor stating that he or she prepared, or oversaw the preparation of, the record that the evidence (that is, the evidence summarised) was preserved for use in the person's trial. A law officer or head prosecutor had to depose that the record disclosed evidence sufficient under the law of the requesting state to justify a prosecution in that state. These were important requirements, designed to protect the integrity of the process. They inevitably impacted on the nature of the extradition hearing. If a suspect was entitled to demand disclosure of all relevant documents on the basis that he or she wished to challenge not the reliability of the summarised evidence but rather the inferences that the requesting state sought to draw from it, the record of the case procedure would lose much if not most of its efficacy. Parliament could not have intended such an outcome.

A requesting state utilising the record of the case procedure had a duty of candour and good faith. Subject to that, it was for the requesting state to decide what information it wished to put before the requested state in support of its request. The record of the case procedure was an on the papers process as far as the requesting state was concerned. There was no expectation that a requesting state would have potential trial witnesses available in NZ for an extradition hearing. That affected the extent of the evaluation that the extradition court could conduct and the nature of the evidence that the suspect could reasonably expect to present. The role of the extradition court was a limited one, it was to ensure that the requesting state had presented sufficient evidence to indicate that there was a prima facie case against the suspect. The disclosure orders had been wrongly made.

Dotcom's cross-appeal was dismissed.

USA's appeal allowed. Disclosure orders quashed.


A The appeal is allowed. The order for disclosure made by Judge Harvey in the District Court is quashed.

B The cross-appeal is dismissed.

C Costs are reserved. The parties have leave to file further memoranda if necessary.


(Given by Arnold J)

Table of Contents


Para No


Allegations against Megaupload and Mr Dotcom





Extradition Act 1999


(a) The relationship between the Act and a relevant extradition treaty


(b) Protection of human rights



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