Kim Dotcom and his associates have lost a key battle in their extradition fight against the United States. On two earlier occasions, including once in the High Court, Dotcom’s legal team successfully argued they were entitled to examine mountains of evidence held by U.S. authorities. But those rulings were overturned this morning when the Court of Appeal said that the U.S. would be allowed to present a summary case after all. Dotcom says he’ll take an appeal to the Supreme Court.
After Kim Dotcom and his associates were arrested in New Zealand in January 2012 it became clear that the United States government would seek their extradition on copyright, racketeering, money laundering and other charges.
To fight the allegations and indeed extradition to the U.S. effectively, Dotcom’s legal team argued that they would need full access to all of the evidence held by the United States. But early on the U.S. government said that no right to such disclosure exists.
In May 2012, however, the Dotcom defense received a boost when Judge Harvey in the North Shore District Court disagreed with the prosecution and ordered disclosure of all documents relating to the alleged crimes of the so-called Mega Conspiracy.
After Judge Harvey made some controversial comments that effectively cost him his job, U.S. authorities were back again, this time seeking a judicial review of the judge’s ruling. The outcome was another win for Dotcom.
In the High Court in August 2012, Justice Helen Winkelmann dismissed the application for a judicial review and upheld the earlier decision handed down in the North Shore District Court. Kim Dotcom and his co-accused – Mathias Ortmann, Finn Batato and Bram van der Kolk – were to be given access to the documents in order to mount a full and proper defense.
But refusing to give in the U.S. hit back again, launching an appeal against the ruling in the hope of a different outcome. Today a New Zealand appeals court handed down its ruling and it represents a huge setback for Dotcom and friends.
Overturning Justice Winkelmann’s ruling on disclosure, the Court of Appeal said that an extradition hearing is not a trial in which innocence or guilty is determined, therefore the procedures appropriate in a such a trial were not applicable in this case. Since extradition treaties effectively amount to understandings between governments to ensure those suspected of crimes are brought to account, all the U.S. has to do is prove to the court that Dotcom and his associates have a prima facie case to answer.
As per the High Court’s disclosure ruling Dotcom’s legal team had hoped to obtain masses of information from the FBI including records relating to the covert operations carried out, those that detail the evidence and complaints put forward to authorities by copyright holders, plus records that show communications between copyright holders and Megaupload including discussions and agreements on take-down notices.
But following today’s ruling the U.S. government will be allowed to submit its case for extradition in summary format, not the high level of detail demanded by Dotcom’s legal team.
This morning Kim Dotcom said that the show is not over yet and will now go to the highest court in the land.
“NZ Court rulings on discovery: 2 (yes) vs 1 (no),” he wrote. “The fight goes on. Next is the Supreme Court of New Zealand.”
If the Supreme Court accepts the case and Dotcom wins, the evidence disclosed would be hugely helpful in his ongoing legal battles. However, even in defeat the possibility remains that an extradition judge could demand to see more evidence from the United States. If that information was not forthcoming the judge could refuse to extradite.
The extradition hearing is expected to go ahead in August this year but that date could be further delayed if the Supreme Court takes up the case.