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