Thursday 5th July 2018
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The Court of Appeal has rejected Kim Dotcom and his co-accused's efforts to avoid extradition to the US and says not only do the charges qualify, but unlawful spying and other misconduct are an issue for the actual trial in Virginia.
Justices Stephen Kos, Christine French and Forrie Miller today said they were satisfied New Zealand law allowed extradition for copyright infringement in this case, and that the allegations against Dotcom, Mathias Ortmann, Finn Batato and Bram van der Kolk would establish extraditable offences if established. The judges noted an extradition hearing isn't a trial and simply established whether there was enough evidence to commit a person for trial, which the lower courts correctly found.
"A criminal offence is committed by anyone who knowingly possesses an infringing digital copy of a protected work in the course of business with a view to committing any act, such as online dissemination, that infringes the copyright," the 120-page judgment said. "That Copyright Act offence qualifies for extradition between New Zealand and the United States."
What's more, the judges said Crimes Act offences including "obtaining money by dishonestly accessing a computer system, and dishonestly taking a digital file with intent to obtain money" would also cross that threshold.
In February last year, the High Court upheld an earlier determination that Dotcom, Ortmann, Batato and van der Kolk were eligible for extradition to the US, where they're accused of using the now-defunct Megaupload file storage site in a major copyright breach by letting users share movies, costing Hollywood producers and other copyright holders more than US$500 million. Other charges include racketeering, money laundering and wire fraud.
The judges agreed with the High Court ruling that claims of misconduct by the US, including the NZ Government Communications Security Bureau's self-acknowledged unlawful spying on Dotcom and Batato, were so extreme as to not warrant a stay, or that they raised a question of law meriting an appeal. The bench took into account the fact that alternative remedies were available, including other proceedings that had been filed.
"There is nothing to prevent the appellants from raising these issues at trial which, in the circumstances of this case, is in our view where they properly belong," the judges said. "We are satisfied that even if the allegations pleaded in support of the stay applications relating to procedural misconduct are true, they do not come close to satisfying the high threshold for staying the extradition proceeding."
The judges firmed up the issue of whether extradition required double criminality, where an offence is a crime in both countries with a minimum punishment of 12 months' imprisonment in New Zealand, saying it's a central feature of international extradition law, justifying reciprocal cross-border arrangements.
"We are satisfied that as a matter of interpretation double criminality is required under the Extradition Act and the New Zealand – United States Treaty," the judgment said. "Its omission is undesirable for both reasons of both policy, since it supplies the policy justification for the person’s arrest and extradition, and practicality, since it also supplies a familiar and relatively straightforward test of eligibility for extradition courts."
The judges said if Parliament chooses it "may exclude double criminality for the United States by amending the Extradition Act" or add the US by an order in council to simplify eligibility determination.
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