Kim Dotcom, United States & NZ Supreme Court All Agree to Court of Appeal Referral

Following a rare moment of agreement, requests from Kim Dotcom and the United States government to refer the extradition case back to the Court of Appeal have been approved by the Supreme Court. The decision marks a split among the Megaupload defendants, after a request from Mathias Ortmann, Finn Batato, and Bram van der Kolk to have the matter heard by a faster route was denied.
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Ever since the Megaupload raids in 2012, the US Government has been trying to extradite Megaupload founder Kim Dotcom and former colleagues Mathias Ortmann, Bram van der Kolk, and Finn Batato to face a laundry list of offenses underpinned by allegations of mass copyright infringement.
Under New Zealand’s Extradition Act 1999, the US needed to show that the alleged crimes would result in a trial in New Zealand if those offenses had been committed there – i.e they are offenses in both countries. Several lower courts in New Zealand found that to be the case but the matter ultimately ended up at the Supreme Court.
Supreme Court Agrees – With Caveats

Last November, the Supreme Court agreed with the lower courts that the quartet could indeed be shipped to the United States. However, a significant technicality needed to be resolved first. In 2015, the District Court found that Dotcom and his former colleagues could be extradited but according to the Megaupload founder’s legal team, the Court made errors in its judgment.
In response, the lawyers demanded a judicial review but both the High Court and Court of Appeal denied that request. In last year’s extradition ruling the Supreme Court held that both lower courts were wrong to determine that Dotcom’s application for a judicial review was an abuse of process. A review should go ahead before extradition can take place, the Supreme Court ruled.
Supreme Court To Handle – or Back to the Court of Appeal?

Following the Supreme Court ruling last year, Dotcom’s lawyer Ron Mansfield noted that there must now be further argument at either the Supreme Court or Court of Appeal, but exactly where that discussion would take place was yet to be determined.
This morning a new Supreme Court judgment answered that question, revealing a split in the Megaupload camp and a rare moment of agreement between Dotcom and the US Government.
Penned by judges Winkelmann CJ, Glazebrook, O’Regan, Ellen France and Williams JJ, the judgment notes that following the conclusion that a judicial review is required, the Supreme Court sought submissions from all parties to determine whether the unresolved issues should be addressed at the Supreme Court or the Court of Appeal.
The US Government and Kim Dotcom told the Supreme Court that they would like the matter to be returned to the Court of Appeal, with Dotcom’s reasoning as follows:
“[A referral to the Court of Appeal] will ensure that, when the matter ultimately comes before [the Supreme Court], this Court will have the benefit of a reasoned appellate decision in the usual way. Otherwise, the Appellant is denied a right of appeal and the Court is denied the benefit of the issues on appeal having been appropriately considered and refined. This will also be a better utilization of this Court’s resources,” Dotcom’s submission reads.
According to the Supreme Court judges, the United States Government supported Dotcom’s submission for “largely the same reasons.” However, Mathias Ortmann, Bram van der Kolk, and Finn Batato asked for the process to take a different path.
With a request for the matter to be handled by the Supreme Court, the trio argued that since the Supreme Court has the most recent experience of the case, it would be best placed to deal with the outstanding issues. They also pointed out that whatever the decision by the Court of Appeal, one side or the other would seek to appeal that decision to the Supreme Court, putting the matter back to where it is now.
Case Going Back to the Court of Appeal

“We are reluctant to override the preference of Mr Dotcom and the United States, given that both attach importance to the potential for an appeal against the decision resolving outstanding issues,” today’s judgment reads.
“While we acknowledge the position of the other appellants, particularly their argument that remission to the Court of Appeal, with the possibility of a further appeal to this Court, could cause further delay, we consider it would not be appropriate for this Court to deal with the issues directly in the face of opposition from both Mr Dotcom as the other appellant and the United States as the respondent.”
In short, the case will now go back to the Court of Appeal, in line with the requests of Dotcom and the US. However, while the parties agree on location, the Supreme Court acknowledges that there is “substantial division” over which issues remain unresolved, so that will be something the Court of Appeal will have to preside over.
Even More Delay, More Hours Billed By Lawyers

As reported last week, New Zealand tax payers are already in the hole for at least 40,500 hours of time spent by government lawyers fighting Dotcom and his former colleagues. The decision by the Supreme Court means that tally will rise further still, with the case first going to the Court of Appeal then back to the Supreme Court. And that won’t be the end of the matter either.
When an extradition is approved, New Zealand’s Justice Minister is required to sign the warrant. In this case, however, his or her decision (who knows who will be in the role at the time) could be sent to the High Court for a review, on to the Court of Appeal in the event of a further dispute, and even back to the Supreme Court.
The judgment can be found here (pdf)