Court of Appeal rules against Dotcom

The Court of Appeal has dismissed the appeal by Dotcom et al against their extradition. This is no surprise.

The District Court found the extradition request was valid. The High Court found the same, as has now the Court of Appeal. No doubt Dotcom will appeal to the Supreme Court but he will need leave (as he also needed for the Court of Appeal).

A summary of the issues is below:

Issue: is double criminality required in extradition between New Zealand and the United States?
Held: yes.  Legislative history, English and Canadian authority and principles of extradition law all suggest that the conduct with which a person is charged must be criminal under both United States and New Zealand law before they can be extradited.   Cullinane v United States of America [2003] 2 NZLR 1 (CA) is overruled.

Issue: was the High Court Judge correct in his findings on the extradition pathways available to the United States?
Held: yes, though for somewhat different reasons.  Section 131 of the Copyright Act 1994 could be relied on by the United States and did criminalise copyright infringement.  Accordingly, all of the pathways relied on by the United States were open.

Issue: was there sufficient evidence to make out a prima facie case of the conduct alleged against the appellants?
Held: yes.  The evidence clearly establishes a prima facie case.  The record of case relied on by the United States is admissible and sufficient; an extradition hearing is not a trial on the merits.

Issue: should leave be granted on the additional questions of law?
Held: no.  The misconduct the appellants allege against the United States, rejected by the High Court, does not warrant a further appeal.  The evidence the appellants sought to call, that the United States allegedly prevented, is an issue for trial. 

Issue: was judicial review correctly refused by the High Court?
Held: yes.  The judicial review almost entirely overlapped with the appeal, and arguably judicial review should not have been available to the appellants.  In any event it was correctly refused.

It is worth noting that this is not about whether Dotcom is guilty or not of the US charges. It is about whether there is enough substance to them, that he should face trial. When he is eventually extradited, he may win at trial. I’m not a Dotcom fan, but US copyright interests do sometimes get over zealous. Having said that, there is a difference between non commercial file sharing, and making millions by encouraging people to file share infringing content.

Unless Dotcom gets leave to appeal to the Supreme Court, a decision will soon have to be made by Justice Minister Andrew Little. The Court of Appeal said:

We direct that the District Court should now proceed without further
delay to complete its duties under s 26 of the Extradition Act in accordance with the determination.

Without further delay is direct.