High Court of New Zealand

20 February 2017

MEDIA RELEASE - FOR IMMEDIATE PUBLICATION

Ortmann & Ors v United States of America

[2017] NZHC 1889

MEDIA RELEASE

This summary is provided to assist in the understanding of the Court’s judgment. It does not comprise part of the reasons for that judgment. The full judgment with reasons is the only authoritative document. The full text of the judgment and reasons can be found at www.courtsofnz.govt.nz

Result

In a judgment released today the High Court has confirmed that Mathias Ortmann, Bram van der Kolk, Kim Dotcom, Finn Batato (the appellants) are eligible for extradition under section 24 of the Extradition Act 1999.

The United States Government has been seeking the appellants’ extradition to face trial on 13 counts including allegations of conspiracy to commit racketeering; copyright infringement; money laundering and wire fraud since 2012.

The High Court has found that the District Court decision in December 2015 finding that the appellants are eligible for extradition was flawed but that the errors in the judgment were immaterial because there are available pathways for extradition on each count.

The key legal questions

In extradition proceedings the primary role of the Court is to determine whether the requested persons are eligible for surrender in relation to the offences for which surrender is sought.

Broadly speaking, this requires the Court to follow a two-step approach.

First, the Court must be satisfied that the alleged conduct constituting the essence of the offence for which surrender is sought correlates to an “extradition offence”. In this case, because there is an extradition treaty, this will depend on whether the conduct correlates to an offence listed in the NZ-US Treaty or deemed to be listed in it by the Extradition Act.

Second, if the Court is satisfied that the offences for which surrender is sought are extradition offences, it must then determine whether the evidence relied on by the requesting State (the US) is sufficient to justify a trial if the offence had been committed in New Zealand. This is what is commonly referred to as a prima facie case – is there sufficient evidence for a properly directed to jury to convict?

Contents of the judgment

The essence of the United States’ case is that the appellants, as officers of Megaupload, were party to a conspiracy to profit from copyright infringement by users of Megaupload’s services.

One of the central issues in the case is whether copyright infringement by digital online communication of copyright protected works to members of the public is a criminal offence in New Zealand under the Copyright Act. The High Court has held that it is not, contrary to the conclusion reached in the District Court. The appellants have therefore succeeded with one of the main planks of their case.

However, the High Court has found that a conspiracy to commit copyright infringement amounts to a conspiracy to defraud and is therefore an extradition offence listed in the US- NZ Treaty. Further, other extradition pathways are available for all counts because of their correlation to a number of serious crimes in the Crimes Act. These offences are deemed to be listed in the Treaty by a provision in the Extradition Act, subject to various criteria being met.

The High Court has confirmed the conclusion reached by the District Court that the evidence relied on by the United States for the purposes of extradition does satisfy the prima facie case test against each appellant on each count.

The High Court has also confirmed that the District Court was correct to dismiss the appellants’ applications for a permanent stay of the extradition proceedings for alleged abuse of process.

Decision The District Court judgment finding that the appellants are eligible for surrender to the United States on all counts in the indictment is confirmed.

Scoop copy of judgment: Ortmann__Ors_v_United_States_of_America.pdf

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