Will the Supreme Court hear the Dotcom appeal?

March 2nd, 2013 at 10:00 am by David Farrar

Stuff reports:

’s fight against extradition to the United States looks set to go to the after losing his latest legal battle.

The Court of Appeal has overturned a High Court decision that ordered the disclosure of the documents that are the basis of the case against Dotcom.

The court said extradition hearings were not trials and the full protections and procedures for criminal trials did not apply.

US authorities want to extradite the German-born internet entrepreneur to stand trial on criminal charges alleging piracy and racketeering.

Dotcom’s lawyer, Paul Davison, QC, said his legal team would seek to appeal to the Supreme Court.

The Supreme Court will need to give leave to appeal, as this would be the third appeal. The original ruling was in the District Court.  The first appeal was to the High Court and the second appeal to the Court of Appeal.

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22 Responses to “Will the Supreme Court hear the Dotcom appeal?”

  1. metcalph (1,430 comments) says:

    I doubt it.

    The original decisions seemed to me to be unwise in using the BORA to impose additional obligations for extradition. Since extraditions are governed by treaty, for a court to retroactively change the terms of a treaty is going to be a red flag to the country on the receiving end and will provide a precedent for them to welsh on their treaty obligations with us. It was bad enough when Paul Keating did it, we don’t need a reputation that this behaviour is okay.

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  2. Whaleoil (767 comments) says:

    Rendition seems appropriate all of a sudden

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  3. RF (1,399 comments) says:

    I guess 3 strikes and he is out. The Supreme Court should not go near it.

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  4. bringbackdemocracy (427 comments) says:

    Nice little earner for Davison.

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  5. peterwn (3,273 comments) says:

    I think the Supreme Court will give leave to appeal, but only on specific points of law which it will specify as part of the leave. The Court of Appeal judgment traversed extradition law fairly thoroughly and made various rulings that set a precedent for future extradition cases. It is quite proper for the Supreme Court to review them if asked – this is precisely why we have a Supreme Court. The Supreme Court however is very unlikely to consider matters peculiar to the Dotcom case, it would ‘lay down the law’ and leave it to the District Court to apply that ‘law’ to the Dotcom case.

    See:
    http://www.legislation.govt.nz/act/public/2003/0053/latest/DLM214074.html s13 Supreme Court Act 2003.
    s13(2)(a) would tend to indicate that it should give leave – “matter of general or public importance” and general interpretation of extradition law fulfils this.

    Dotcom’s lawyers would no doubt argue that it should consider Dotcom’s situation to avoid a ‘substantial miscarriage of justice’ s13(2)(b) but I doubt the Supreme Court would give leave for this.

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  6. CharlieBrown (1,012 comments) says:

    I hope it goes to the supreme court. The fact that different courts have came to different conclusions makes me think this isn’t black and white. And for the good of freedom I hope the court says F U to the Government and FBI.

    I may be wrong but isn’t this guy being extradited for money laundering not copyright infringement? As copyright infringement isn’t a charge that he cannot be extradited on it because of NZ’s extradition rules. If that is the case what charge do you think he is most likely to be found guilty on? It would be disgusting if KDC gets sent to prison for a long period in the USA for flakey copyright charges and the money laundering gets dropped, that would make a mockery of extradition in NZ.

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  7. metcalph (1,430 comments) says:

    As copyright infringement isn’t a charge that he cannot be extradited on it because of NZ’s extradition rules.

    False. Copyright piracy is a crime which he can be extradited for. If he was extradited only for racketeering, then he couldn’t be tried in the states for copyright-piracy.

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  8. peterwn (3,273 comments) says:

    Just to clarify – copyright breach for commercial purposes (as distinct from ‘private’ copying or file sharing) is a crime punishable by 5 years imprisonment in NZ so falls well within the criteria for extradition. This covers anything from selling pirated CD’s at a flea market, repeated sales of pirated software on Trademe and the types of activities that Megaupload is allegedly involved in.

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  9. Elaycee (4,392 comments) says:

    I won’t be sad to see his ample arse disappear down the air bridge as he is escorted back to the USA to face his accusers.

    He is totally over rated / over opinionated / over-hyped by a fawning media / and, worst of all he is still over here.

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  10. CharlieBrown (1,012 comments) says:

    metcalph and peterwn- thanks for the clarification – i stand corrected.

    Elaycee – you talking about john key or dot com?

    The reason i want dot com cleared is because of the principal of this whole farce. The whole idea that someone can be extradited to the usa for a crime committed when he wasn’t even in the states isn’t right. The whole idea that john key bent over backwards and pulled his pants down for the fbi isn’t right.

    The movie and tv industry is trying to regulate the internet which is scary.

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  11. metcalph (1,430 comments) says:

    The whole idea that someone can be extradited to the usa for a crime committed when he wasn’t even in the states isn’t right.

    So if I were to screw a yank out of a million dollars over email, I should not be extradicted to the states because I wasn’t in the states when I committed the crime? Or if a Nigerian screws you out of money, she should not face charges here because he did not commit his crime here?

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  12. barry (1,317 comments) says:

    Elaycee (3,340) Says:
    March 2nd, 2013 at 11:42 am

    get real. Its not him thats the issue – its the US forcing itself on the rest of the world. If the US win here – then you will be subject to US laws under the TPP – and that means you will lose the right to do lots and lots of things you take for granted now.

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  13. Silly Will Bunions (143 comments) says:

    Charlie Brown, your anti-US sentiments disqualify you from having an objective view on this legal issue. Your anti-US sentiments like most New Zealanders’ anti-US sentiments are rank anyway, but particularly so in this discussion.

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  14. peterwn (3,273 comments) says:

    These discussions raise an important issue – can A commit a crime against nation B’s laws when not actually in B? There would need to be some nexus between A and B eg citizenship or residency. Possibly, A would need to have asserted citizenship eg applying for a B passport, or asserted residency by normally living in B. For example see:
    http://www.legislation.govt.nz/act/public/1961/0043/latest/DLM329264.html
    This defines certain sexual acts involving young people committed overseas as crimes under NZ law.

    USA probably imposes obligations of a similar sort on its citizens and green card holders. I do not know whether Dotcom falls into this category.

    Also, can A commit a crime against nation B when not physically present in B. For instance A transacts with someone in B or utilises facilities or resources in B in circumstances where A commits a crime against B’s laws. If A subsequently visits B can A be arrested and charged. If so is it not reasonable for A to be susceptible to extradition to B.

    The area of concern is if A somehow breaches B’s laws when neither present in B or had no intentional interaction with B. For example clicking on a web site that happened to be hosted in B should not make you susceptible to B’s laws especially if it is a .nz site for example.

    Comity between nations supports extradition, mutual enforcement of judgments (eg an Australian, UK, etc court will enforce a NZ student loan debt), etc. Because of the ease of international travel and communications nowadays, courts in most nations are not going to let criminals, fraudsters, etc fall between the cracks.

    So simplistc assumptions that for example A needs to be in B to commit a crime against B’s laws do not cut it in the modern world.

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  15. OneTrack (3,107 comments) says:

    Honour the treaty.

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  16. CharlieBrown (1,012 comments) says:

    Silly Will Bunions – I’m not anti-US you fool. I have alot of respect for the US. If it wasn’t for them who knows what the communists would have done to the rest of the world after WW2. We have the US military to thankfor the internet.

    I just hate the influence the movie\tv studios have over the governments when it comes to IP. I believe in free-markets and liberty and the movie studios and FBI are trying to get in the way of both things, especially with the Kim Dot Com case.

    peterwn “So simplistc assumptions that for example A needs to be in B to commit a crime against B’s laws do not cut it in the modern world.”

    If example A (KDC) is committing a crime in example C (NZ), but the crime effects example B(USA) then shouldn’t example C do the prosecuting under example C’s laws?

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  17. CharlieBrown (1,012 comments) says:

    “The whole idea that someone can be extradited to the usa for a crime committed when he wasn’t even in the states isn’t right.

    So if I were to screw a yank out of a million dollars over email, I should not be extradicted to the states because I wasn’t in the states when I committed the crime? Or if a Nigerian screws you out of money, she should not face charges here because he did not commit his crime here?”

    He should be prosecuted in NZ, he was in NZ when he supposedly committed some of those crimes. The fact that we have an extradition treaty with the US should mean they have faith in our own rule of law.

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  18. Reid (16,471 comments) says:

    If the US win here – then you will be subject to US laws under the TPP – and that means you will lose the right to do lots and lots of things you take for granted now.

    We already are, barry, we don’t need to wait for the TPP, or the outcome of this case.

    Under the US NDAA (National Defense Authorisation Act) you, me and everyone else in the entire world is subject to rendition, torture and life imprisonment without trial.

    Look it up.

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  19. Nostalgia-NZ (5,211 comments) says:

    I think the Supreme Court have to give leave to appeal. It’s hardly clear cut. 2 decisions for and 1 against the disclosure and not withstanding the ‘trust us’ obligation on the search has already been ruled as illegal. It’s the job of Supreme Court to put such things in order.

    Metcalph says that the BORA aspect shouldn’t impose additional conditions to the extradition Treaty. Letting such a treaty extend over the BORA is an extreme denial of rights. I’d be interested if there are any such Treaties that are imposed above the American Constitution on it’s citizens. Maybe there are.

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  20. Viking2 (11,471 comments) says:

    Under our own laws someone charged with a crime is entitled to see the evidence before going to court.. As KDC is a NZ resdient then it surely is a simple extrapolation of the principle. That’s what they are asking for. Show us the evidence so we can defend ourselves.

    Unfortunately the USA is becoming more communist than Russia ever was. Examples this morning of the pressure being applied to anyone that disagree’s with the Obama or Democrat institution.

    Amazing the we see the USA becoming so totalitarian that its is becoming a worse place to live than a communist state.
    Worst part is that their population voted for shitheads of this nature.
    America used to be known as the land of the free.
    IT IS NO MORE

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  21. Paul Marsden (998 comments) says:

    So far we have the opinion of five judges in this matter todate. Two have opposing views to the other three. Regardless of whether they are District or, High Court judges or Appeal Court judges, they should all be familiar with a fundamental tenet of law called ‘natural justice, and a defendant’s right to know of the evidence against him. The political pressure upon the Supreme Court to find in favour of the Crown in this matter will be intense and if I were a betting man, they will dismiss any appeal by Dotcom in the matter

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  22. Nostalgia-NZ (5,211 comments) says:

    I repeat my earlier point that a ‘treaty’ between 2 countries shouldn’t be able to be ‘imposed’ above a BOR or Constitutional Rights, otherwise a persons right’s are effectively removed in some situations.

    There is the second point on the ‘trust me’ we have the proof to the required standard as being absolute when illegalities have already been found by a Court as to procedure. In this case the search, the role of various agencies and so on.

    Paul Marsden is probably right about the ‘political pressure’ yet on the other hand nzers, if the appeal goes ahead, will get to see the importance or lack of importance the Supreme Court place on the rights of nz citizens and residents. The country apparently wanted to stand alone and place faith in our own judiciary when the right of appeals to the Privy Council were abolished, these are the very tests that give credibility or lack of credibility to that decision.

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