Kim Dotcom challenges High Court decision that rules him eligible for extradition to US

Monday, 12 February 2018

Kim Dotcom leaving Auckland District Court after a hearing on his extradition in 2015. The District Court ruled he was eligible for extradition to the US, and was later backed by the High Court. He and his three co-accused are now appealing to the Court of Appeal.

Legal proceedings leading up to a ruling that Kim Dotcom and three others are eligible for extradition to the United States were 'absolutely, totally wrong', the Court of Appeal has been told.

The four men stand accused of more than a dozen criminal copyright charges relating to the now-defunct file-sharing website Megaupload, which it is alleged shared pirated films and other content.

Finn Batalo is one of four men connected with the Megaupload file-sharing site who face extradition. (File photo)

They face extradition to the US, which claims they were involved in a worldwide criminal organisation that led to an estimated loss to copyright holders of more than US$500 million.

Dotcom, along with Matthias Ortmann, Bram van der Kolk and Finn Batato, are continuing to fight extradition, after the High Court upheld an earlier District Court ruling that they were eligible for it.

Bram van der Kolk is another of the four co-accused. (File photo)

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In the Court of Appeal in Wellington on Monday, Grant Illingworth QC, lawyer for Ortmann and van der Kolk, said: 'In the District Court, it all went wrong. It went absolutely, totally wrong.'

'In the High Court, there were a number of errors which we say were made.'

None of the accused were in court on Monday as the hearing, which is expected to last about two weeks, got under way.

Illingworth's argument centred on a previous extradition case which was used to help make the initial ruling.

In that case - the United States v Cullinane in 2003 - the courts had taken an 'incorrect approach' by establishing grounds for extradition based only on the treaty between New Zealand and the US, Illingworth said.

However, the decision should have been considered not just under that treaty, but also under the separate extradition laws in each of the two nations, he said.

This could effectively be surmised as the 'triple criminality' principle, he argued.

The lawyers for the four men also planned to challenge the validity of a notice sent from the then Minister of Justice to the District Court judge asking for an arrest warrant to be issued.

Illingworth said that notice was based on 'misleading conduct', as information had been gathered illegally by the Government Communications Security Bureau (GCSB).

Dotcom's former rented home in Coatesville, north of Auckland, was raided by New Zealand police and the FBI just over six years ago.

The raid led to 13 charges against the four men, including engaging in a racketeering conspiracy, conspiring to commit copyright infringement and money laundering, and criminal copyright infringement.