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Supreme Court denies Dotcom full access to files in extradition proceedings

The Supreme Court this morning dismissed an appeal by Kim Dotcom to access FBI files before his extradition hearing.

Lawyers for Mr Dotcom and his entourage — Finn Batato, Mathias Ortmann and Bram van der Kolk — were asking for the disclosure of all relevant evidence collected in the case, citing the need for a fair hearing.

The Crown, acting on behalf of the US, has argued Mr Dotcom should only be allowed to access a summary, or “record of case,” in accordance with the Extradition Act. 

The District Court allowed Mr Dotcom the documents, and that decision was upheld in the High Court after a judicial review hearing. However, that decision was reversed by the Court of Appeal.

This morning in Wellington the Supreme Court dismissed his appeal in a majority decision with Chief Justice Sian Elias dissenting.

Mr Dotcom and his co-defendants are charged in the US with copyright infringement, money laundering, racketeering, and wire fraud arising from the operations of the Megaupload group.

The US claims the storage sites have been used for massive sharing of files, in evasion of copyright. 

Today the justices released their 120-page judgment.

The judgment explores laws, agreements and procedures of two documents, the “Treaty on Extradition between New Zealand and the United States,” which was signed in 1970, and the Extradition Act.

The Extradition Act says a requesting country needs to provide “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.”

In reasons delivered by Justice John McGrath, he says: “It need not be a summary of all evidence that will be used at trial. It is for the requesting state to decide what material to place before the extradition court. Its request stands or falls on that material alone.”

Lawyers for Mr Dotcom argued the District Court, under section 22 of the Extradition Act, has the power to require a requesting state to provide or disclose information.

Justice McGrath disagreed, saying Parliament would have taken this into account. After the bill was introduced in the House, the Foreign Affairs, Defence and Trade committee changed wording to the law from requiring a "recital" of the evidence to support the request for the surrender of the person to "summary."

Justice McGrath says: “We are satisfied that a judge determining whether a requested person is eligible for surrender has no power under legislation to order disclosure of information by a requesting state.”

Before 10am this morning, the tweets began to roll in.

"Being defeated is often a temporary condition. Giving up is what makes it permanent," Mr Dotcom tweeted.

RAW DATA: Read the judgment (PDF)755 KB

Comments and questions

How is it fair justice to not allow someone full disclosure of the evidence against them to mount an adequate defense? As an outsider, one can only speculate that the evidence is either flimsy, illegally gained or there is a high degree of corruption within the powers wishing to prosecute.

My personal pick is that its all three.

Something smells really bad and makes me very uncomfortable about all of this.

We need to apply NZ laws to this case and not just trust what the Americans say otherwise if American laws apply in NZ we just become another state of America.
If America can extradite anyone they like on flimsy evidence then NZ laws are no longer paramount and we should all just become American citizens.

"....we should all just become American citizens" ??! Actually our de facto status is somewhat worse than that. We are not only NOT Americans (i.e. enjoys the protection of their Constitution, for whatever that's worth), we as de facto, are subjects of American colonization. Now we really need God to defend New Zealand because we get all the liabilities and few of the benefits from the US.

NZ Laws and Courts are becoming subordinate to USA Law. In a silent backdoor way which has seen surveillance, GCSB and Police assets/warrants being used illegally. Then John Key and Party change legislation in Parliament and backdate it to make it legal. The fact that Supreme Court Head Judge dissented means that there is divided opinion. NZ is its own sovereign nation having fought in World Wars to hold our own. My grandfather said US Forces were useless in Europe and caused problems as they were too gung ho, shot at shit like cowboys. The US Marines only came to defend NZ because another gutless NZ Prime Minister Peter Fraser caved into Winston Churchill and would not let the NZ Division come home from Europe to defend NZ unlike the Aussies who came back to fight in Pacific. I have similar opinion having served alongside US troops. Too much Hollywood.

Popular Western history like to depicts the Americans as the saviours of Western Europe. In reality it was the Soviets that ground Hitler down and beat his forces back to Berlin. Without the Ruskys relentlessly onslaught from the East (and all the German resources this consumed), the Western Forces would have never made it past a few beaches on the French coast.

I don't know of any serious modern historian who claims otherwise - popular or not, US or not. Between 60 & 80% of German manpower (depending upon the year) was devoted to the Eastern front and naturally that's also where the casualties occurred.

What did happen in the western front was that the US supplied 75% of the man power and did 75% of the fighting while the British forces mostly drank tea and made excuses for why things were taking so long. Even the French fought harder.

If American law applied to this then Dotcon would have full discovery.

If only the Crown showed this much prosecutorial enthusiasm in matters of donations to political parties and passports for sale.

Who said anything about "fair" or "justice". This is the US government Dotcom has stood up to, he should have known better, you don't poke a stick at the judge jury and executioner and expect no response.

As my dear ol' granma used to say, "it's useless to clash with a politician or the establishment, you can never beat city hall".....just thought that might be worth sharing with Mr Dotcom as well.

So each of the above are lawyers of some repute I guess, so knowledgeable (not) in your suggestion of how the Supreme Court arrived at its decision. Just for one moment did you ever think this may be the actual law working as it was designed, rather than looking for a conspiracy that does not exist. Goodness are you all trying to take Campbell & Gowers jobs on TV3. I guess you could not do any worse than them with your ideas.
If Mr Dotcom is innocent, he can jump on the plane to the USA and have his day in court. Frankly like many other NZ’ers I am tired of him and the drama he wishes to be surrounded by.

>"If Mr Dotcom is innocent, he can jump on the plane to the USA and have his day in court. "

The US justice system (so to speak) is not trustworthy in this instance, any more than it was in the case of the innocent German citizen Khalid El-Masri, when the US kidnapped and tortured him, then denied him justice because "national security".

Ultimately this is Hollywood / RIAA lobbyists "donating" enough to American politicians to make this ridiculous charade happen. They've taken down a business without anyone being proven guilty, and there's no way Dotcom will get a fair trial in the USA - given the miscarriages .

One can just as easily download a copyrighted file from a Google search link (or from YouTube) as from the old Megaupload site, and Google profits from its popularity with users.

KDC is not to be extradited on secondary copyright infringement charges, because this would not be an extraditable offence. Which is exactly why the US tacked on money laundering charges...

I'm tired of him and his dramas as well, but he is a NZ citizen and should be protected as such. His "day in court" may end up 10 yrs in Gitmo, evidence withheld, etc, before charges are finally dropped. And that would NOT be setting a precedent. If I was him I would be very worried, and as a Kiwi I'm very worried what this means for our future.

[Dotcom has NZ resident status. He is not a citizen - Editor]

Supreme Court was set-up under a political pretext, and that is exactly what it has provided.

What are the FBI hiding that is so sensitive to public scrutiny that they have to defend it through 4 levels of court hearings, at great expense to the tax-payer no less?

Another bad, sad, day for the fair and just New Zealand our troopers and diggers spilled precious blood for ... even if you don't care for Dotcom, everyone deserves a fair hearing, this is plain, unadulterated BS.

The 120-page judgment can now be accessed at the link above. The justices go in-depth about New Zealand law and how they applied this case to the NZ Extradition Act. One justice dissented and those reasons are also explained.

It's not the New Zealand courts role to be trying Dotcom on the serious criminal charges he is facing in the US which is what his lawyers here appear to be trying to do. That is a matter for the US and the sooner he goes to there to answer those charges the better off he'll be. And no doubt when he's there he can read all the FBI files he likes.

It seems most of these posts actually want NZ to dictate to the US.
NZ has to decide whether it will extradite or not.
Its for the US to try the allegations against Dotcom.
Its inappropriate for NZ to interfere with that trial process.

The conspiracy theorists won’t want to read the report, it will only confirm that Mr Dotcom is being treated correctly and fairly by the judicial system. Having one judge dissent again shows that the system does work. Go Go, Go, Dotcom be gone from our shores, have your day in the USA court and when your found not guilty sue them for your costs and you will be welcome back.

Why do we do anything for the US administration ? they are war criminals that dont respect any other countries sovereign rights.... let alone individual rights

Why have a parliment making NZ laws if they don't apply to everyone living in NZ?
If the US can extradite anyone with hardly any evidence then its US law that matters not NZ law.
Any businessman wanting to set up business in NZ will understand this, that they have no copywrite protection in NZ against US/Hollywood interests.

Hardly any evidence? I take it you have not read the 192 page summary of the evidence freely available on the internet?

The evidence is so bad they had to invent charges like money laundering.
Apparently you can't get extradited for copyright infrigement so they had to dream up other stuff. Its called contract prosecution.

look at it another way. People like James Cameron can come make films like Avatar sequels in NZ knowing they have copyright protection.


Imagine if South Korea rolled over and accepted everything that American Courts threw at them. Samsung would get crushed.
I think our Courts need to stand up for themselves . Other Countries have their own laws which they enforce and we should do the same.

It was never going to look good for the big Boy when John Key went all Goo-Goo, Gah-Gah when the Warner Bros. honchos came down here to put the squeeze on him, over Peter Jackson's ugly critters' movies.

It's basically shocking and quite wrong, that Dotcom should not have right of access to all that will be used in charging him.

Those of us who believed in democracy should have well and truly learned that it's naive to any longer do so. Certainly, nobody has much faith left in the judiciary, or believes the courts are about delivering justice.

The US has loss the trust of those who formerly believed in it as the champion of freedom/

Our politicians are cosying up to corporatee interests, crony capitalism seems to have very much dug in- and John Key is out to destroy our links with Britain and is cuddling up to a brutalized Communist country which imprisons and tortures those of its citizens who protest against its excesses and the loss if their rights and freedom.

Our politicians are no longer trusted, with good reason. No minister with the bit between his teeth can be impeached and so held to account. Unelected List MPs are running the country, Key's yes-men.

We need to be afraid of what's happening to New Zealand. NZers have basically no control of all over all this. Its serves those right who don't protest.

Whether Dotcom did or did not break US law, is immaterial. He could be innocent or it may just be a beat up by industry in the US.

As far as I can see, Dotcom is only "guilty" of allowing clandestine breaches of copyright by users of his service, something that Youtube does right out in the open.

The fact that Dotcom is suffering a beatup and Youtube is not, to me indicates double standards. What Dotcom has done is a drop in the bucket compared to Youtube, but Youtube is "acceptable". But then Google does want all the world's information under one roof, and Youtube is part of that. The NSA and CIA would no doubt share Google's goals. So I suppose that Dotcom is a fly in the ointment as far as Google and the NSA are concerned.

Aside from that, denying access to any evidence prior to a trial, places the accused at a disadvantage. It does not allow time for the evidence to be investigated. In this case, it opens the door for removal of anyone from a country without proper due process. It is another way of silencing someone and perhaps removing them from a country that is neutral and back to a country that may be corrupt.

Would we have not cried foul if during the second world war Jews were extradited back to Germany to face punishment for their "crimes"?

Whether is is one man, a whole section of society, or a particular ethnic group; Whether it is in times of war or peace; Due process of law which includes full discovery of evidence, should prevail in all matters including extradition otherwise we are aiding and abetting possible criminal activity carried out by those govts who have abandoned due process, and rule not on law, but who has the largest chequebook.

Our government should be upholding the rights of the population, not tramping all over them in jackboots.

Get him out of the country!!!