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 an 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, the 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.