Dotcom, Mathias Ortmann, Bram van der Kolk and Finn Batato are wanted in the U.S. to face multiple charges relating to their Megaupload website, including copyright infringement, conspiracy, money laundering and racketeering.
The hearing has already been rescheduled 10 times but that didn’t stop Dotcom and his former business partners seeking a further delay. Last week in a claim to the Court of Appeal, Dotcom et al asked for more time in order to seek funding for expert witnesses outside New Zealand.
“Today we’ll find out if I get a fair extradition hearing or if the New Zealand judiciary will transform itself into a US owned dancing bear,” Dotcom said on Twitter earlier today.
In a judgment handed down shortly after, the Court of Appeal outlined the arguments of both parties.
On the one hand, lawyers for Dotcom had argued that there must be a prima facie case that an extradition offense has been committed. The Megaupload defendants are charged with conspiracy to breach copyright – does that come under the umbrella of conspiracy to defraud as contained in the Extradition Treaty?
Furthermore, if United States law is an issue (Dotcom’s lawyers argue it is since it is referenced in the prosecutor’s affidavit filed in support of the extradition), then “natural justice requires that the appellants be able to call
evidence from an American expert to challenge the prosecutor’s evidence.”
Unsurprisingly, U.S. authorities see things rather differently. They argue that if Dotcom wants to argue those points he can do so during the extradition hearing. But in any event, the U.S. argues that they only need to show a prima facie case
that the defendants have committed an offense under New Zealand law or the Extradition Treaty, not United States law.
Faced with what it previously described as an “impossible task” given the need for a swift response to around 177 pages of submissions, the Court of Appeal explained its dilemma.
“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,” this morning’s judgment reads.
“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.”
In dismissing the appeal and ordering the extradition hearing to go ahead next week as scheduled, the Court of Appeal said that it was satisfied that Dotcom and his associates would receive a fair hearing.
“If [Judge Dawson] decides the actions of the United States have deprived the appellants of American expertise they need properly to defend the extradition application, then inevitably he will have to adjourn the extradition hearing,” the Court of Appeals writes.
“If the Judge decides such expertise is not needed, and holds the appellants are
eligible for extradition, then the combination of judicial review and the right of
appeal in the Extradition Act will provide the appellants with ample remedies
should they not accept the outcome.”
After ordering Dotcom and his associates to pay the costs of the U.S. authorities, the Court of Appeal ordered next Monday’s extradition hearing to go ahead as planned.
“As expected… Dancing bear.” a disappointed Dotcom commented on the ruling.
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