The U.S. government wants Dotcom, Mathias Ortmann, Bram van der Kolk and Finn Batato tried on multiple charges relating to their Megaupload website, including copyright infringement, conspiracy, money laundering and racketeering.
The hearing, set to take place in just 13 days time, has already been rescheduled 10 times. However, each time it has neared Dotcom and his former business partners have filed successful appeals on various grounds, collectively achieving delays which have put the hearing back by years.
Now, in a new claim to the Court of Appeals, Dotcom and his co-accused are claiming that due to the actions of the U.S. they are being denied a fair trial.
According to lawyers for the defense (Finn Batato excluded – he was present at the hearing but had no lawyer) the confiscation of their clients’ funds means that they are unable to pay for expert witnesses outside New Zealand.
Grant Illingworth QC, lawyer for van der Kolk and Ortman, said that while United States authorities have allowed some seized funds to be released for defense purposes in New Zealand, those funds are not available for use overseas.
“The issue at the heart of this appeal is primarily of natural justice. The US asserts it has confiscated property and can enforce that worldwide,” Illingworth said.
No funding outside New Zealand means the defendants don’t have the means to pay for experts in US copyright law, a vital requirement if they are to mount a robust defense.
“We can’t become instant experts in US copyright law and US criminal law,” Illingworth said. “We need help from expert witnesses and we’re being denied that opportunity.”
The funds required hardly amount to small change. According to Dotcom’s lawyer Ron Mansfield QC those legal costs could rise to $500,000 but could be easily funded by tens of millions of dollars currently seized in both New Zealand and Hong Kong.
Appearing on behalf of U.S. authorities, Christine Gordon QC countered by stating that in fact no funds are needed. She said that the New Zealand extradition court hasn’t been asked to make any findings based on U.S. law so on that basis no specialist overseas legal expertise will be required.
Nevertheless, the defense asked the Court of Appeal for a further postponement of the hearing amounting to a few months.
Justices John Wild, John Fogarty and Jillian Mallon reserved their decision, with Justice Wild noting that they had been “presented with an impossible task” given the scale of the case and the short time before the hearing is due to begin.
“We aren’t sure what we are going to do,” Justice Wild said. “But we are going to do something.”
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