USA v DOTCOM - disclosure orders wrongly made
COURT OF APPEAL OF NEW ZEALAND
UNITED STATES OF AMERICA V KIM DOTCOM & ORS
(CA526/2012)  NZCA 38
This summary is provided to assist in the understanding of the Court’s judgment. It does not comprise part of the reasons for that judgment. The full judgment with reasons is the only authoritative document. The full text of the judgment and reasons can be found at www.courtsofnz.govt.nz.
The United States of America (the United States) has requested the extradition of Kim Dotcom, Finn Batato, Mathias Ortmann and Bram Van Der Kolk from New Zealand to face charges in the United States arising out of their involvement in a group of companies known as Megaupload. The United States alleges that Megaupload provided internet-based storage facilities to users to share files in criminal breach of copyright, amongst other offences.
The District Court ordered the United States prosecuting authorities to provide extensive disclosure of documents to Mr Dotcom and his associates prior to the extradition hearing, which has yet to occur. In the High Court, Winkelmann J upheld this decision.
On appeal to the Court of Appeal, the Court (Arnold, Ellen France and French JJ) has allowed the appeal and found that the disclosure orders were wrongly made.
By way of background, the Court of Appeal outlined that extradition is an important feature of international relationships. It provides a mechanism to enable the return of a suspect to the requesting state to stand trial for alleged criminal offending while at the same time seeking to ensure that the extradition process is not abused and the legitimate rights of suspects are protected. While extradition proceedings are part of the criminal justice system, they are not criminal trials, so that the full range of protections and procedures applicable to criminal trials do not apply.
Under the Extradition Act 1999 the United States must, among other things, satisfy the District Court that there is a prima facie case against Mr Dotcom and his associates – that they have a case to answer. The United States is entitled to do this by summarising the evidence against Mr Dotcom in what is called the record of the case. The question for the Court was whether the record of the case procedure contemplated disclosure on the basis ordered by the District Court. The Court decided that it did not.
The Court of Appeal observed that the record of the case procedure was originally introduced to harmonise, modernise and improve the utility of the extradition process to the international community. Although it provides a more streamlined process, it does contain several important safeguards, such as certification requirements. Moreover, a state requesting extradition owes a duty of candour and good faith in making its request.
If suspects were entitled to extensive disclosure of documents on the basis that they wished to challenge the evidence at the extradition hearing, the procedure would lose much if not most of its efficacy. The Court stated that Parliament did not intend that to be the case. In the absence of cogent evidence to the contrary, an extradition court is entitled to expect that a requesting state will have met its obligations of candour and good faith when compiling the record of the case.
The more streamlined process does not mean that when considering the factual and legal background to an extradition application, an extradition court must accept everything said by the requesting state at face value, however. A suspect is entitled to challenge the reliability of the record of the case through evidence or argument. But, given the nature of extradition hearings, the role of the extradition court is a limited one. If further documents are required, the proper process in most cases is that the court request the Minister of Justice to seek them from the United States in accordance with the extradition treaty between the two countries.