Extradition
to the United States requires prima facie
evidence that the suspect has committed a crime. New Zealand judges are proving to be no pushover
in attempts by US authorities to extradite entrepreneur Kim Dotcom for trial on
charges of breach of copyright, conspiracy and money laundering.
US authorities allege
Kim Dotcom and others illegally distributed copyrighted material through their
Megaupload website. In a screenplay
worthy of a Hollywood production, helicopters and armed police swooped on Mr
Dotcom at his rented Coatesville mansion, bringing him before the courts for
extradition to the United States.
Procedures on
extradition differ depending on the country seeking extradition. The simplest procedure is for extradition to
Australia and the United Kingdom. A
fast-track abbreviated procedure is justified given the shared legal tradition
in these countries. For countries such
as the United States, it is necessary to establish that the accused is
“eligible” for surrender: this means proof that the accused would have faced
trial in New Zealand if the conduct in question had occurred in New Zealand. An extradition hearing proceeds as if it were
a committal hearing before trial in New Zealand. It is not for the New Zealand court to
decide guilt; merely that there is enough evidence to proceed to a trial.
US authorities seeking
extradition are required to produce a “record of the case”: a summary of the
evidence against the accused. Kim Dotcom
complained that the “record of the case” against him was too brief. It was not clear how he may have transgressed. US authorities told the court: “trust us”; Kim
Dotcom will get a fair trial in the US with all the safeguards of the US legal
system and in any event US legal procedure does not allow us to release all the
file without court approval.
In the High Court,
Justice Winkelmann emphasised that New Zealand courts and New Zealand lawyers
have their own legal rules which they are bound to follow. At issue was the extent of disclosure required
by the Extradition Act before extradition to the United States. She ruled that Kim Dotcom was entitled to all
the benefits of the Bill of Rights that a New Zealand accused would have to
ensure a fair trial if facing a committal hearing in New Zealand.
US authorities were
ordered to disclose all evidence held to support the charges of breach of
copyright and money laundering. The
amount to be disclosed might be substantial, but as Justice Winkelmann
observed, that reflected the complexity of the case.
United
States v. Kim Dotcom – High Court (16.08.12)
12.030