Tuesday 30th July 2013
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Web-based file storage entrepreneur Kim Dotcom has taken his fight for documents supporting his extradition to the country's top court in the latest episode of his attempt to head off a legal battle with the US Federal government.
Dotcom and his co-accused Finn Batato, Mathias Ortmann and Bram van der Kolk are seeking evidence in the US government's case to extradite them to face charges of conspiracy to operate websites used to illegally distribute copyrighted content. The District and High Courts upheld their request for a trimmed down disclosure, though that was overturned in the Court of Appeal earlier this year.
Paul Davison QC, counsel for Dotcom, told a full Supreme Court bench the Crown has got ahead of itself in saying his client can wait until trial in the US for the evidence against them.
"If matters proceed the way Mr Dotcom would have them, there will not be a US phase," Davison said.
Davison told Chief Justice Dame Sian Elias and Justices John McGrath, William Young, Susan Glazebrook and Terence Arnold that New Zealand law obliges Dotcom to a fair hearing, and that was undermined by their reliance on the US government's record of case - a summary of evidence used to speed up the extradition process among nations deemed as having trustworthy legal systems.
He told the court the extradition treaty between New Zealand and the US didn't prevent the courts from making disclosure orders, saying the legislature had kept a regulation-making ability for that very issue.
Davison said the summary of evidence would be more burdensome and onerous than handing over much of the full documentation, which in digital form was available simply by pushing a button.
Though not directly relevant to today's hearing about accessing the evidence, Davison said he will be questioning the double-criminality of the allegations at the extradition hearing.
Guyon Foley, counsel for Dotcom's co-accused, adopted Davison's claims and told the court they needed access to the emails to see how the US claims there was an intentional conspiracy to commit these crimes.
He singled out one of the emails referred to in the record of claim between his clients as a joke, saying "the US in their application are relying on a joke."
The hearing is set down for one day, and is continuing.
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