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Usa v Dotcom-1

Usa v Dotcom-1

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Published by: eriq_gardner6833 on Mar 01, 2013
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USA V DOTCOM & ORS COA CA526/2012 [1 March 2013]
NOTE: THE SUPPRESSION ORDER MADE IN THE DISTRICT COURT INRELATION TO THE CONTENTS OF THE UNITED STATES' RECORD OFTHE CASE REMAINS IN EFFECTIN THE COURT OF APPEAL OF NEW ZEALANDCA526/2012[2013] NZCA 38
BETWEEN THE UNITED STATES OF AMERICAAppellantAND KIM DOTCOM, FINN BATATO,MATHIAS ORTMANN AND BRAM VANDER KOLKFirst RespondentsAND THE DISTRICT COURT AT NORTHSHORESecond RespondentHearing: 20 September 2012Court: Arnold, Ellen France and French JJCounsel: J C Pike and F Sinclair for AppellantP J Davison QC, W Akel and R C Woods for Mr DotcomG J Foley for Messrs Batato, Ortmann and Van der Kolk Judgment: 1 March 2013 at 3 pm
JUDGMENT OF THE COURTA The appeal is allowed. The order for disclosure made by Judge Harveyin 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.
____________________________________________________________________
 
REASONS OF THE COURT
(Given by Arnold J)
Table of ContentsPara NoIntroduction
 [1]
Allegations against Megaupload and Mr Dotcom
 [6]
Extradition
 Background 
 [12]
 Extradition Act 1999
 [16]
(a)
 
The relationship between the Act and a relevant extraditiontreaty
 [19]
(b)
 
Protection of human rights
 [22]
(c)
 
 Different extradition processes
 [27]
(i) Endorsed warrant process: Part 4
 [28]
(ii) Commonwealth and treaty countries: Part 3
 [30]
(iii) Non-Commonwealth, non-treaty countries: Part 5
 [36]
 Background to record of the case procedure
 [37]
 Nature of extradition proceedings
 [40]
The judgments below
 [46]
(a)
 
 District Court 
 (b)
 
 High Court 
Evaluation
 [49]
The NZ/US Treaty
 [50]
The Act 
 [65]
(a) Section 25
 [82]
(b) Section 24
 [97]
 Drawing the
 
threads together 
 Relief 
Decision
Introduction
[1]
 
This case raises an important point concerning the extent of disclosure that acourt may order a requesting state to provide in advance of a particular form of extradition hearing. The background is that the appellant, the United States of America, seeks to extradite Mr Dotcom and the remaining first respondents (whomwe will refer to simply as Mr Dotcom for ease of reference) to face charges arisingout of their involvement in a group of companies known as the Megauploadcompanies (Megaupload). The essential allegation is that Megaupload, for thepurpose of commercial advantage or private financial gain, provided internet-basedstorage facilities to users and allowed them to use those facilities to share files in
 
breach of copyright. Megaupload and Mr Dotcom are alleged to have committedcriminal breaches of copyright in respect of films, television shows, music,electronic books, video games and other computer software. They are also alleged tohave been involved in money laundering, racketeering and wire fraud, although theseoffences flow from the copyright charges.[2]
 
Prior to the extradition hearing, which is yet to be held, Mr Dotcom soughtdisclosure of various categories of documents from the United States prosecutingauthorities. Judge Harvey ordered disclosure.
1
(For ease of reference, the orders areset out in Appendix A to this judgment.) As can be seen, the orders are structured interms of the ingredients of the offences alleged and are widely drawn. For example,
order 1(b)(i) refers to documents “connected to, related to or evidencing allegedinfringement of the copyright interests”.
[3]
 
The United States brought an application for judicial review of Judge
Harvey’s decision
, which Winkelmann J dismissed.
2
The United States now appeals
from Winkelmann J’s decision.
Although Mr Dotcom generally supports
Winkelmann J’s reasoning,
he has filed a cross-appeal in relation to her finding thatan oral evidence order is required before a witness may be called at an extraditionhearing and seeks to support her judgment on other grounds.[4]
 
The Extradition Act 1999 (the Act) recognises different categories of  jurisdiction, each with different requirements for extradition. The United States is a jurisdiction to which pt 3 of the Act applies. It is an exempted country, whichenables it to follow an extradition process that is simpler than that which must befollowed by non-exempted jurisdictions. Where it brings an extradition application,the United States is entitled to present a record of the case to the court hearing theapplication (the extradition court). In essence, the record of the case is a summary of the evidence against the person sought to be extradited.[5]
 
We have concluded, contrary to the views of the Courts below, that theexempted country regime under the Act does not contemplate disclosure on the basis
1
 
 Dotcom v United States of America
[2012] DCR 661.
2
 
United States of America v Dotcom
[2012] NZHC 2076.

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