It seemed the Kim Dotcom case would forever be a part of New Zealand. Photo / File
It seemed the Kim Dotcom case would forever be a part of New Zealand. Photo / File
COMMENT: Sometimes there seems no end to the case of Kim Dotcom.
In the Supreme Court this week, his lawyers began speaking of German income tax legislation.
It was one of those moments in which time froze to a glacial crawl and it seemed the Dotcom case would forever bea part of New Zealand.
And it might yet, because of another Kim.
As the Supreme Court hears arguments for and against extradition, the Court of Appeal - only a short walk up the road - has issued a decision in the case of Kyung Yup Kim.
According to the process of extradition, the Minister of Justice must sign the extradition order. National's Amy Adams did so for Kyung Yup Kim. Since then, the courts have twice found she failed to make the proper considerations when signing the order.
Kim Dotcom's lawyers arrive at the Supreme Court this morning - his wife, Liz Dotcom, with barrister Ron Mansfield. Photo / Mark Mitchell
In essence, the Court of Appeal has ruled China was not a country in which we could safely extradite someone and have confidence they would have a fair trial, or even be safe waiting for trial. And this, even though China promised everything would be fine.
Interestingly, the decision was, in part, written by now-Chief Justice Helen Winkelmann and now-Supreme Court Justice Joe Williams. They are currently hearing the Megaupload appeal.
Today, they will hear the United States unfurl its case for the extradition of Dotcom, along with Mathias Ortmann, Bram van der Kolk and Finn Batato.
The lawyer for the US, Kieran Raftery, QC, of Auckland, made his first appearance before the court yesterday.
He's late, although no fault of his own. Lawyers for those facing extradition consumed more time than they should.
Dotcom's lawyer Ron Mansfield pushed timing boundaries so significantly he was told he would be made to sit down and be quiet at 3.30pm.
He finally stopped at 3.29. Justice Williams jokes, saying Mansfield had stopped "a minute early".
Then Mansfield flourished a sheet of paper and said: "There's one more thing I should mention."
It was funny until the justices realised he wasn't joking.
Then it was 3.33pm and Justice Mark O'Regan realised Mansfield was outrageously pushing a strand of the case which the courts had previously refused to hear.
It all served to push Raftery back. An hour was tacked to the end of the Supreme Court's sitting day and, as lawyer for the US, he set out to remind the justices of the FBI case against Megaupload.
There's only so much an hour can offer but Raftery surfaced the FBI's indictment and the allegation the four men facing extradition were behind an alleged heist of US$500m worth of copyrighted material.
Megaupload accused Bram van der Kolk arriving at the Supreme Court. Photo / Getty Images
"When you look at the evidence, particularly all the email traffic between them, the whole purpose of their existence was to get on to their site that copyright infringing material.
"They are doing this in order to monetise this for themselves to get financial gain."
There is much before the Supreme Court. It includes an email exchange in which van der Kolk said to Ortmann: "We have a funny business . . . modern days pirates :)", to which Ortmann replied: "We're not pirates, we're just providing shipping services to pirates :)".
It's evidence like this which has helped make the US case so compelling to the courthouses which have already confirmed the eligibility of Dotcom and the others for extradition.
If the Supreme Court agrees, the extradition order goes across the road to the Beehive, where Minister of Justice Andrew Little will have to decide whether or not to sign. He will have to make the same sort of considerations Adams did in the case of the other Kim.
Megaupload accused Mathias Ortmann arriving at the Supreme Court. Photo / Getty Images
If Little signs, Dotcom and the others will head straight to the High Court. They will likely ask whether the US justice system is one in which our government can have faith. Or whether it is somewhere that accords with our international agreements and domestic laws for people waiting on a trial.
Dotcom looks to Chelsea Manning and Julian Assange as fellow travellers.
US jails are not Chinese jails, but Manning's time in jail is exactly what Assange and Dotcom fear.
