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.

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