Kim Dotcom's extradition case opens in the Court of Appeal

Kim Dotcom has been a permanent resident in NZ since 2010. (Photo: Chris Keall)

Internet entrepreneur Kim Dotcom's extradition case reached the Court of Appeal this morning, as Dotcom and his three co-accused continue to fight attempts to remove them to the United States.

Last February, High Court Justice Murray Gilbert upheld a decision by the District Court that there were grounds for Dotcom, Mathias Ortmann, Bram van der Kolk and Finn Batato to be extradited.

The US claims Ortmann, van der Kolk, Dotcom and Batato and others were members of a worldwide criminal organisation that engaged in criminal copyright infringement and money laundering on a massive scale with estimated loss to copyright holders well in excess of US$500 million. The case has been touted as one of the largest criminal copyright cases ever brought by the US.

It is seeking to extradite the four on 13 charges, including allegations of conspiracy to commit racketeering, copyright infringement, money laundering and wire fraud, among others relating to his now-defunct file-sharing business Megaupload.

In the appeal court this morning, Grant Illingworth QC, lawyer for Ortmann and van der Kolk, stressed the argument that there must be double criminality for an extradition to be ordered – that is, that the alleged conduct must be a crime in both New Zealand and the country which is seeking to extradite.

Illingworth argued that "in a sense" there is a triple criminality condition on extradition, in that the conduct must be covered by the treaty between the two countries. The courts had taken an incorrect approach in the 2003 extradition case of the United States v Cullinane, before which he said the Extradition Act had been interpreted as requiring a three-stage test to establish grounds for extradition.

"In Cullinane, that became one single issue – 'is it covered by the treaty' – and we say that's an incorrect approach."

Illingworth said the lawyers for the four men would challenge the validity of the notice sent from the Minister of Justice to the District Court judge to notify the judge of the extradition request and ask the judge to issue an arrest warrant.

"If that notice is not valid, if it has been procured by misleading conduct, for example a breach of the obligations of the ex parte application, that can call into question the jurisdiction of the court as a whole," Illingworth said.

Justice Forrest Miller told the QC that even if that argument is successful, the High Court judgment had found that there was a prima facie case "with bells on".

"The difficulty that you face here ultimately is whether the judicial process that has been followed in both of the courts below was meaningful, to use the Canadian standard," Miller said. "You're going to have to persuade us that what Justice Gilbert ended up with, even assuming your interpretation of the legislation is correct, was wrong."

Illingworth said the lawyers accept that challenge, and the US started by relying on a "host of different articles" to argue for extradition, so they must deal with the various pathways to extradition one set at a time.

The Court of Appeal judges also confirmed with Illingworth that, due to the doctrine of specialty, the court can order the extradition based on some of the charges but not all, and the US courts would only be able to try the men on those allowed charges – for example, extradition could be allowed for copyright infringement but not for racketeering.

Dotcom has had permanent residence in New Zealand since 2010 after moving from Hong Kong. In early 2012, his rented mansion in Coatesville, Auckland was the subject of a dramatic raid by New Zealand police, executing warrants issued by the US Federal Bureau of Investigation. Numerous court actions proceeded from there as Dotcom and his co-accused fought extradition.

In 2014, Dotcom formed the Internet Party to contest the New Zealand general election that year, forming a coalition with the left-wing Mana Party in a marriage of political convenience that backfired on both parties, neither of which gained parliamentary representation. His marriage subsequently dissolved, he left the mansion for a central city apartment and has kept a lower profile since.

The case is set down to run for two-and-a-half weeks.

(BusinessDesk)


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29 Comments & Questions

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A Tall Poppy cut down in his prime. Typical New Zealand approach to success to cut down and destroy.

Landlords have been beaten up and abused causing New Zealand's worse Rental housing shortage ever seen in history!

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wtf does this story have to do with landlords ?

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Bon Voyage Kim. Hope you look better in Orange than you do black.

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With the *Deputy PM* coming out over the weekend and saying, "The public has yet to be told everything it should have been told about the Kim Dotcom case", you would have to think that irrespective of the outcome in the Court of Appeal, this case still has a loooong way to go.

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DPM will enter the Pike River mine first, remember? So much for his utterances.

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Hell, I'll even pay for his ticket to get there.

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Everything about this case is distasteful - but when it's governments abusing process against individuals for corporate gain, I root for the individuals. Hope Dotcom & co get all this dropped & a couple hundred million dollar payout for the loss of their business.

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Kim Dotcom set out to profit by encouraging others to infringe copyright thus gaining by depriving others. Commonly called fraud in this country. He appears to possess a common lack of ethical boundaries, which started with his hacking.

A modern day Ronald Biggs.

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Copyright infringement now classed as fraud in this country? Really?

Besides which, secondary copyright infringement at that. No one has charged them with uploading copyrighted content themselves, rather than providing a file-sharing site through which others could upload and share files of any type.

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Read the Crimes Act.

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Kim Schmitz is a fraudster from way back. He defrauded a whole bunch of his countrymen out of quite a sum while still a teenager in a pump and dump scheme. I couldn't help but cringe as NZ"s pathetic excuse for a media and various weak minded New Zealanders fawned over this crook and feted him as a Robin Hood type folk hero and made him into a celebrity. Truly embarrassing and harbouring this fugitive all this time is a massive black eye for NZ's reputation, judiciary, and relationship with US law enforcement agencies.

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What about governments taking a hands off approach to corporate fraud? As in the billions of dollars lost via the finance companies scams?

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Yes, they should deal with that as well. The police won’t touch most fraud cases unless they are guaranteed a slam dunk win. Part of deterrence relies upon the threat of public exposure of the crime, not just a win in court.

And look at the Christchurch CTV collapse costing substantial lives.?Despite experts finding breaches of criminal negligence in the design by ignoring professional building standards, no-one has been prosecuted. Yet cut down a certain tree on your own property and you are a law breaker. What is the point of building codes and council consents if no-one is held accountable (architects, builders, or council inspectors) when a breach takes lives?

Our Justice system needs a lot of work. But it does not make Dotcom innocent of his crimes.

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PLEASE SEND THIS IDIOT AND HIS NEW WIFE HOME TO AMERICA.

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The quicker Dotcom (what a silly name) is out of this country, the better

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'Bourke ' kind of makes me smile.

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Kim dotcom should never have been granted a residence visa based on prior criminal convictions overseas and should then have had it revoked for failing to declare a drink driving conviction. Successive governments have put their head in the sand fearing negative publicity. Lets hope he finally gets extradited and we can move on without seeing and hearing about him further.

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Don't forget that it was key National figures who overruled Immigration NZ and granted Kim Dotcom his residence visa.

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As Kim believes his actions are lawful, why doesnt he just get some balls and go to the US to face the music instead of prolonging a verdict by endless court proceedings and appeals.

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Ha spoken like a real keyboard warrior - would you??

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This seems a particularly silly question. The USA doesn't do justice so well when it doesn't suit it:

https://en.wikipedia.org/wiki/Khalid_El-Masri

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Of course you quote a sight that has been peer reviewed and proven? No of course not but if it help inflames the rhetoric about the USA system then by all means lets put it out there. Dotcom and his mates have cost NZ taxpayer a considerable amount of money, its time he & his mates were put on a plane and sent to face the ‘music’. If, as they say they are innocent then what do they have to fear? The common trend that they will not get a fair hearing is nothing but poppycock and drivel. It is said only to muddy the waters and gain sympathy, those that believe such nonsense should be out buying the harbour bridge

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By the manner in which KD was arrested, he should be granted Restorative Justice, by meeting with the Hollywood moguls.They come here, of course.

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We have a tall poppy syndrome in this country where genuinely successful people get cut down by envy.

We also have a culture of greed where people take it upon themselves to steal from corporates, employers and the wealthy in general, under the misguided belief that stealing from the rich is Ok because they have plenty. It is evident from Kim’s behaviour that he is Ok with stealing from Hollywood.

Kim Dotcom belongs firmly in the second group. He is on record as saying that copying Intellectual Property or original works is not a crime because the original is still intact. With that mentality you could justify selling black market copies of the Mona Lisa. I’m sure Kim Dotcom would be up in arms if someone sold copies of explicit nude photos of his wife all over the internet, after all the originals would be intact.

His crime is far more than breaching copyright. Anyone who thinks he is innocent plainly haven’t read and/or don’t understand the fundamental principles at stake here regarding ownership as we move further into the digital age.

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What a travesty of justice. None, absolutely none of this should have been allowed to proceed until a full open enquiry is conducted into the raid.

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You must be a Labour/Greens supporter. Nothing can proceed without an enquiry. So waste more time? I suggest you again read the comments above paying attention to Samuel Foster & #8

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gee DnS I did read #8 - completely irrelevant here. Many's the case where things are thrown out of court due to improper / illegal process by police and others. (btw not a labour/greens supporter)

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At 6'6 and at least 70kgs overweight I'd be fighting extradition with everything I had as well. Lets face it, if he gets a jail term over there it would probably mean a death sentence for the guy. At the very least let them have the cost of treating his on coming diabetes.

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We need a Trump PM to stop this "Tall poppy" problem in New Zealand.

Anyone successful is cut down!

Anyone that makes a dollar without working in a factory at 6am is arrested in New Zealand.

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