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Kim Dotcom extradition hearing begins shortly in Supreme Court

06 June 2019

The Supreme Court will shortly start hearing appeals in the United States' efforts to extradite Kim Dotcom and three others to face trial for alleged criminal infringements of copyright in the US.

Hearing dates of 10 to 14 June have been set for proceedings which will be followed with much interest around the country. The Supreme Court has taken the unusual step of releasing a case history synopsis of the issues involved.

The Supreme Court decided in December 2018 that it had jurisdiction to hear the appeals by Kim Dotcom, Mathias Ortman, Finn Batato and Bram van der Kolk.

It then granted the applications for leave to appeal from the Court of Appeal's decision Ortmann v United States of America [2018] NZCA 233, [2018] 3 NZLR 475.

The Registrar was instructed to set the appeals down for hearing in the first week of April 2019. That didn't work, but the Supreme Court hearing and resulting decision(s) will possibly be the final courtroom chapter in a sequence of court proceedings which began with a District Court decision on 23 December 2015.

If the Supreme Court should find that some or all of the four appellants are eligible for extradition to the United States, another decision will still have to be made. Justice Minister Andrew Little will be required to decide if they will be extradited, pursuant to the Extradition Act 1999.

The main issues that fall to be determined in the Supreme Court are:

  • Whether the Court of Appeal was correct to overrule its decision in United States of America v Cullinane [2003] 2 NZLR 1 and reinstate the double criminality requirement;
  • If Cullinane was correctly overruled, whether the Court of Appeal was correct to find that copyright infringement of the kind alleged to have been done by the appellants amounted to a criminal offence in New Zealand (under the Copyright Act and the Crimes Act) and thus an extradition offence for the purposes of the Act;
  • Whether the Court of Appeal was correct to hold that the copyright status of the works is non-essential and therefore can be assumed for the purposes of the eligibility proceeding;
  • Whether the Court of Appeal was correct to find that there is sufficient evidence to establish the appellants’ eligibility for extradition on the facts; and
  • Whether the Court of Appeal was correct to dismiss the appeal against the High Court’s decision to decline judicial review.

Last updated on the 16th September 2019