UPDATE: Kim Dotcom et al seek further delay to extradition hearing
(Updates with Judges' comments and US counsel Christine Gordon QC argument)
By Suze Metherell
Sept. 8 (BusinessDesk) - Kim Dotcom and his fellow Megaupload co-accused have again sought to delay their extradition fight with the US, claiming natural justice has been denied as they're unable to pay for expert witnesses outside New Zealand.
In the Court of Appeal Justices John Wild, John Fogarty and Jillian Mallon reserved their decision, while Justice Wild said they were "presented with an impossible task" given the size of the submissions and the impending trial set down for Sept. 21.
The appeal is the latest in a long-running court battle between Dotcom and his co-accused with the Crown and US federal government, which have been seeking to extradite them to the US, where they face charges of conspiracy to operate websites used to illegally distribute copyrighted material via Megaupload. Dotcom, Mathias Ortmann, Bram van der Kolk and Finn Batato were charged by the US in 2012, with their assets, mostly in Hong Kong and New Zealand, confiscated by US authorities.
The legal counsel for van der Kolk and Ortman, Grant Illingworth QC, and Dotcom's counsel, Ron Mansfield QC, argued because the accused can't pay for legal help or expert witnesses in the US, due to the confiscation of their funds, they're unable to defend themselves fully in the extradition hearing. Mansfield said they estimated legal costs would be up to $500,000, "peanuts" compared to the $10 million in retained assets in New Zealand and the between HK$200 million and HK$300 million retained in Hong Kong.
Appearing for the US authorities, Christine Gordon QC said the extradition court judge won't determine aspects of the law, nor did the US ask the extradition judge to make findings on US law, so there was no need for the legal expertise. New Zealand has a 1970 extradition treaty with the US.
In May, Justice Sarah Katz granted in part an application for a judicial review of a North Shore District Court decision in March that would have seen the four face extradition hearings on June 2. The judge sent the matter back to the District Court to set a new hearing date no earlier than Sept. 1, according to her May judgment in the High Court in Auckland.
However, since that decision, legal action brought by the US to restrict Dotcom's funding has denied his legal counsel the five months allowed in the decision to prepare on the issues, Mansfield argued. Furthermore, Dotcom's original legal counsel, Paul Davison QC, and Simpson Grierson partner William Akel stepped down in November, meaning the incoming legal team had a lot to catch up on.
Mansfield said the case may be the largest criminal copyright fraud case ever, making it complex to defend.
The nature of the secondary copyright claims against the Megaupload operators, which ran a cloud-storage site used by some members to store and share copyrighted content illegally, are complex and there isn't an expert witness in New Zealand. The US couldn't say it was such a large scale fraud or breach of copyright, while not allowing international legal advice, Mansfield said.
Illingworth said while the US allowed the confiscated funds to pay for New Zealand legal resources, they could not spend it on expert witnesses outside the country.
"The issue at heart of this appeal is primarily of natural justice," Illingworth said. "The US asserts it has confiscated property and can enforce that worldwide", effectively preventing the Megaupload accused to defend themselves with expert witnesses from outside New Zealand.
Because the copyright charges are US-based, expert legal advice is needed from the US, which differs from New Zealand law, Illingworth said.
"We can't become instant experts in US copyright law and US criminal law," Illingworth said. "We need help from expert witnesses and we're being denied that opportunity."
The appellants have never been US citizens or residents but have been made fugitives because they chose to defend extradition, he said.