David Fisher: What today’s Kim Dotcom extradition judgment means


The Kim Dotcom extradition case just stretched out another year or two, possibly to 2025 or even further.

Instead of the Supreme Court ruling on whether or not the four Megaupload accused were liable for extradition, it has found Dotcom and his co-accused didn’t get a fair hearing at the Court of Appeal.

So the next step is a backwards step – the Supreme Court has found there were arguments that should have been heard at the Court of Appeal that were not.

Now, it says, the extradition process will have to wait until those arguments are heard, possibly by the Supreme Court and possibly by the Court of Appeal. Exactly which of those courts will hear those arguments has yet to be decided, so there’s a chunk of time (and a Christmas break) while all parties involved prepare their arguments on that.

For those facing extradition, this is like not winning Lotto then having Powerball pop up while also getting a bonus ticket for the next draw.

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Or, and Dotcom might like this as an avid games’ player, like getting a bonus life or scooping up a restorative health pack.

Today’s Supreme Court judgment was expected to provide a binary result – most likely that the four men were liable for extradition. That would then see the case going to Justice minister Kris Faafoi who would then face deciding whether or not to sign the extradition warrant.

The minute the ink dried from Faafoi’s signature, those facing extradition would have sought a judicial review of his decision at the High Court. And then an appeal to the Court of Appeal. And so on.

All this still lies in the future but we’re not there yet.

The Supreme Court has found 12 of the 13 reasons for the extradition of Dotcom, Mathias Ortmann, Bram van der Kolk and Finn Batato to be valid.

It also said it can’t flick the switch on that part of its judgment until the earlier judicial mis-step has been corrected.

The issue the Supreme Court identified was the Court of Appeal had got it wrong when it refused to let those facing extradition seek judicial review of aspects of the District Court’s original extradition hearing, process and decision-making.

The Court of Appeal had instead pointed to the appeals pathway taken by Dotcom and others and decided that allowing a similar judicial review avenue would be an “abuse of process”.

This was not unlike what happened at the High Court when it was asked to allow a judicial review on points highlighted by Dotcom and others. It refused, and in discussing its refusal, sitting Justice Murray Gilbert recounted the path the case had taken to reach him.

Gilbert pointed to the “comprehensive and determined defence to extradition” which had been met by “an equally determined response from the United States”.

“By the time the eligibility hearing commenced, nine judgments had been delivered by this Court on issues arising out of the extradition proceedings, seven by the Court of Appeal and two by the Supreme Court.”

Gilbert said this didn’t include all the other cases that had sprouted from the core case. It meant that the actual extradition hearing at the District Court – which took three months – was rescheduled nine times before it was heard in September 2015.

When Gilbert sat down to consider the case, the High Court had received 20,000 documents, hundreds of legal authorities and more than 3000 pages of submissions.

In amongst the paperwork were applications for judicial review of findings around extradition eligibility and dismissal by the District Court of applications to halt the process. Dotcom and others had complained of “procedural unfairness, breaches of natural justice, errors of law and unreasonableness”.

Gilbert found there was “significant overlap” between judicial review and points of appeal, and that the process allowed for one bite at the cherry, not two. The Court of Appeal rejected an appeal which would have allowed for a judicial review, finding it was an “abuse of process”.

When the Supreme Court came to consider matters, it found “we do not consider that we can accept the United States’ submission that the appeal grounds and judicial review grounds wholly overlap without having heard argument on the appellants’ judicial review claims”.

“We do not consider the Court of Appeal should have concluded they were without addressing the judicial review claims.”

The Court of Appeal, said the Supreme Court, should not have characterised the judicial review proceeding as an “abuse of process” even if there was “considerable duplication of grounds”. The Court of Appeal needed to step through the points raised, one after the other.

Dotcom’s lawyer Ron Mansfield today spoke of there being “serious procedural issues” that were never addressed.

Such talk was a feature among the accused during the extradition hearing in 2015 at the district court. There was a genuine frustration in the court and in the private rooms outside the court when Dotcom and others waited when the hearing was in recess.

Such talk was a feature during interviews with Dotcom, and during the High Court hearings, and in the waiting areas outside the Supreme Court in Wellington last year.

Those issues will now be addressed, either by the Court of Appeal or the Supreme Court.

In essence, it means these few things. Firstly, at least one knot of angst in the pit of the Megaupload accused’s gut can be released – the points they wanted argued will now be argued. It means that, should they wind up in a cell in the United States, they cannot point back at this and say they were deprived.

The second is that the case is now delayed another year and possibly two, adding to the four or five years it was going to take from this point after Faafoi most likely signed the extradition warrant.

Thirdly, it should provide impetus for Faafoi to get stuck into a reform of the Extradition Act. The Law Commission has made its recommendations. The Supreme Court finding today identified fuzzy language around the role of appeals versus judicial reviews – another bit of fuzzy language in a piece of law that has allowed this case to drag on and on.

For those accused, it means they will continue to live their lives in New Zealand rather than in a jail cell awaiting trial in the US.

For three of those men – Dotcom, van der Kolk and Batato – they get to watch their children grow up, build memories and have a role in their lives that would otherwise have been impossible.

It makes it instantly understandable why those facing extradition, and decades in a US jail, continue to fight with such vigour at every opportunity.

Two months after the raid in 2012, Dotcom’s two youngest children were born. It may well be, between this latest delay and future extensions, the car-mad entrepreneur will be able to teach them to drive and see them get their driver’s licence.

Who knows? He might even get to see them vote.

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