Thursday 20th September 2012
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New Zealand court-ordered discovery of evidence held by the US Federal government is a step too far, as the nation only has to prove internet tycoon Kim Dotcom has a case to answer, the Court of Appeal heard today.
Counsel for the US government, John Pike, told Justices Terence Arnold, Ellen France and Christine French in Wellington that two decisions in lower courts granting Dotcom access to evidence including millions of emails went too far, as the country seeking the extradition order only has to prove a prima facie case.
The only time a person facing extradition can seek disclosure is if the case brought before the courts is "manifestly deficient," for example by making assertions without any supplementary evidence, he said.
The US government is appealing last month's decision by Chief High Court Judge Helen Winkelmann which granted Dotcom and his co-accused Finn Batato, Mathias Ortmann and Bram van der Kolk access to the evidence to ensure they get a fair hearing.
The group faces extradition to the US amid claims their Megaupload file sharing service was part of a conspiracy to operate websites used to illegally distribute copyrighted content. The US government also alleges they conspired to launder the proceeds of that offending.
Paul Davison QC, counsel for Dotcom, told the court the extradition treaty between New Zealand and the US says an accused is subject to local law, and as such should be protected by natural justice requirements set down in the Bill of Rights Act.
"Natural justice doesn't exist in a vacuum, it exists in the real world to provide real protections for people in front of state power," Davison said.
The US government's money laundering and racketeering claims rely on Megaupload being found to have intentionally breached copyright, and the extradition hearing would have to fail if that wasn't the case, Davison said.
Speaking before the hearing, Dotcom told reporters outside the courthouse he was the victim of US bullying.
"It's a very political attack on our business that I don't think has any legal grounds," he said.
The hearing is set down for one day and is proceeding.
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