Claims of a "cut-and-paste" judgment were freshly laid before the Supreme Court justices hearing the Kim Dotcom extradition case this morning.

Copies of the 271-page judgment which consigned Dotcom and three others to the United States for trial were handed to the five justices hearing the appeal, with more than 150 pages highlighted.

Grant Illingworth QC said the yellow highlighted sections were simply copied from the US submissions presented during the 2015 extradition hearing against Dotcom, his clients Mathias Ortmann and Bram van der Kolk, and Finn Batato.

He said it showed Judge Nevin Dawson had not delved into the actual US case against the former Megaupload shareholders and executives.


Instead, Illingworth said the judgment relied on "inferences" drawn in the US submissions rather than diving into the background document to see if there was evidence supporting the claims.

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The Supreme Court is hearing the final appeal in the long-running extradition case, which began with the arrest in Auckland of the four men in 2012 after an FBI investigation.

Illingworth said the acceptance of the case through the US submissions showed the court's error in its approach to deciding the accused were eligible for evidence.

Extradition law required those seeking to extradite an accused person for trial in a foreign state had to show there was sufficient evidence to warrant a trial, he said.

Instead, he said it appeared the district court judge had considered the evidence presented by the US to be reliable.

Megaupload accused in 2012 - Bram van der Kolk, Kim Dotcom, Mathias Ortmann and Finn Batato. Photo /File
Megaupload accused in 2012 - Bram van der Kolk, Kim Dotcom, Mathias Ortmann and Finn Batato. Photo /File

It meant it was not - and should have been - tested by matching evidence against the offences which the US seeks to try the accused.

Illingworth said the judgment reflected the judge had found "inferences" to be drawn from the US case that showed there was a case for the accused to answer in the US.


Those "inferences" were not sufficient, he said, as testing those claims against evidence in what was a circumstantial case might have revealed they had no substance.

As an example, he pointed to evidence given by Professor Phillip Sallis, an expert in software engineering, who testified at the district court extradition hearing.

Sallis offered testimony about the "de-duplication" process, by which computer systems recognised when duplicate files were being stored and - rather than save multiple copies - issued each a unique signifying number. That number could be incorporated into a link, so different users could access the file linked to a specific individual, even if the content at the end of the link was the same.

It was described as a standard process used across internet architecture because it saved bandwidth and storage space creating multiple copies of identical files.

It was a process which the FBI described as an example of dishonesty in the way Megaupload handled requests to take down copyrighted material. When Megaupload received a notification about a link, the FBI said its decision to delete the link but not the file it led to showed it was not genuinely trying to remove infringing material.

Megaupload accused in 2012 - Bram van der Kolk, Kim Dotcom, Mathias Ortmann and Finn Batato. Photo /File
Megaupload accused in 2012 - Bram van der Kolk, Kim Dotcom, Mathias Ortmann and Finn Batato. Photo /File

If, for example, the identical file was a movie, it would allow multiple people owning a copy of the movie to have access to their own versions without the storage service creating multiple identical files.

Dawson's district court judgment said Sallis' evidence was useful to "putting the operations of the internet and cloud storage into an overall understandable context", ruling it was not an issue to be addressed at the extradition stage but one to be decided at trial.

Illingworth said the district court should have considered whether Sallis' evidence undermined the US case by showing a clear explanation for the "de-duplication" process.

He said the judge "should have done a fair analysis of the evidence and weighed it for himself".

"This is a rubber stamp. It is submissions that have been taken at face value."

Illingworth's criticism was challenged by Justice Susan Glazebrook, who asked if it mattered if the district court judge had referred to those parts of US submissions which came from the documents filed seeking the extradition.

He maintained the point, saying the case was one which would send the accused to the US to face trial. "The person is not just going before a local court."

The argument is one of multiple strands of legal challenge against judgments from the North Shore District Court, the High Court, Court of Appeal and the Supreme Court.