Dotcom et al lose bid to further delay extradition hearing

Monday 14th September 2015

Kim Dotcom and his fellow Megaupload co-accused have failed in a bid to delay next week's extradition hearing, with the Appeal Court deciding it was an "impossible decision" for its bench to make.

The Court of Appeal ruling by Justices John Wild, John Fogarty and Jillian Mallon dismissed an application by Dotcom, Mathias Ortmann, Bram van der Kolk and Finn Batato to delay their extradition hearing due to begin on Sept. 21. Last week the Megaupload accused claimed they could not pay for expert witnesses or legal advice outside of New Zealand because US authorities confiscated their funds, and that denied them the right to a fair hearing.

The appeal was the latest in a long-running court battle between Dotcom and his co-accused with the Crown and the US federal government, which has been seeking to extradite them where they face charges of conspiracy to operate websites used to illegally distribute copyrighted material via Megaupload. Dotcom, van der Kolk, Ortmann and Batato were charged by the US in 2012, with their assets, mostly in Hong Kong and New Zealand, confiscated by US authorities.

Today's judgment said given the timing of the appeal, which included 3,231 pages of submissions, came less than two weeks before the extradition hearing was due to start, the judges would not be able to reach a decision.

"The court cannot resolve this argument with the speed it aims to accord fast track matters, let alone in a judgment that, in the circumstances of this case, must be given urgently," the judges said. "That implies no criticism of the parties. It is simply that this court does not have the resources urgently to resolve a dispute which is not straightforward and involves fundamental disagreement between the parties.

"Each party may consider the issue is open to an obvious answer – their answer. But the sheer length of the parties’ submissions and the amount of case law to which they referred belies that. "

However, they were "satisfied there is no risk of any breach of the appellant’s right to a fair extradition hearing going unremedied".

At the appeal hearing last week, legal counsel for van der Kolk and Ortman, Grant Illingworth QC, and Dotcom's counsel, Ron Mansfield QC, said their clients were unable to defend themselves fully in the extradition hearing because they can't pay for legal help or expert witnesses in the US due to the confiscation of their funds.

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.

The bench order the appellants to pay the US costs.

The extradition hearing is the tenth fixture for the Megaupload accused.

BusinessDesk.co.nz

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