Kim Dotcom case finally under way

Kim Dotcom brought his own chair to court for his extradition hearing, saying he had back issues.
LAURA WALTERS/FAIRFAX NZ

Kim Dotcom brought his own chair to court for his extradition hearing, saying he had back issues.

Internet entrepreneur Kim Dotcom's long-awaited extradition hearing finally got underway on Monday but if things go his way the trial could be thrown out all together.

Monday's hearing immediately got bogged down in technical, legal argument.

However, Dotcom did secure one early victory, being allowed to bring his own chair to the hearing, saying he needed it because he had back problems.

The United States is seeking extradition of Dotcom and his co-accused - Mathias Ortmann, Fin Batato and Bram van der Kolk - for alleged copyright and piracy offences.

While the first day's business of the hearing was mainly procedural, with lawyers for the United States and those representing Dotcom and his co-accused arguing over what order different parts of the case should be heard, the outcome could impact on whether the extradition hearing was delayed again or possibly put off altogether.

Judge Nevin Dawson on Monday afternoon reserved his decision on what order the proceedings would be heard by the court.

READ MORE:
Dotcom's extradition battle comes to a head but it's not over yet

Attempts by the US to extradite the group began in 2012, following a raid on Dotcom's Coatesville mansion.

Crown lawyer Christine Gordon QC said Dotcom had filed three stay applications in relation to the trial but they should not be dealt with before the main trial.

Meanwhile, the defence says the applications deal with issues that are fundamental to the case and to proceed with the main trial would be a breach of natural justice.

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Dotcom's lawyer Ron Mansfield brought a new issue to the table on Monday afternoon when he claimed that, based on New Zealand copyright law, no criminal copyright offences had been committed by Dotcom through his Megaupload site .

Section 92B of the Copyright Act stated internet service providers could not be prosecuted if users breached copyright laws - a type of safe harbour section.

Mansfield said Megaupload was an internet service provider.

It was the first time Dotcom and his legal team had drawn on this section of the 1994 Copyright Act.

If the court determined this was correct it would be the end of the extradition trial, Mansfield said.

However, Judge Dawson said the extradition application related to Dotcom breaking US law, not New Zealand law.

But Mansfield said the issue needed to be argued before the extradition trial went ahead.

He also said statements by Gordon on behalf of the US that Dotcom's applications were "disruptive tactics" were an attempt to prejudice the court against Dotcom and the other defendants.

Dotcom was not attempting to stall the case.

There were "solid and strong" grounds to have the applications heard before the extradition trial, Mansfield said.

"I simply cannot accept that the grounds are speculative or without foundation as promoted by the US this morning."

The lack of access to funding needed for the trial was grounds for the extradition hearing to be put off either temporarily or permanently, he said.



Batato stood briefly to say he wanted to join the position set out by his co-accused.

"You're commended for being so brief," Judge Dawson said.

Batato's amicus curiae said Batato was never a shareholder or director of Megaupload.

He was employed as the chief marketing officer and was in a "more vulnerable" and "weaker" position as he relied upon the resources of his co-accused to get expert witnesses.

Judge Dawson repeatedly reminded Mansfield the point of the day was to determine the order of proceedings.

"I'm not interested in the parties blaming each other for various things."

Speaking outside court, Mansfield said if the stay application was successful the hearing could either be put off to give the US the opportunity to free up funds Dotcom needed to get experts for the hearing or the extradition trial could be thrown out.

Dotcom's attempt to delay the hearing to bring in expert witnesses from the US failed earlier this month.

The Court of Appeal decision delivered on September 14 said the application should be dealt with during the main trial. 

Gordon said another one of the three applications related to what Dotcom claimed revealed an abuse of process.

The alleged abuses related to the intercepting of communications, the search and seizure of assets and police behaviour. 

However, the allegations mostly did not concern the US, Gordon said.

"Those that do are speculative and lack an air of reality."

The application was based on "conspiracy theories" and did not need to be dealt with before the main trial began, she said.

The latest stay application was filed on September 16 and was 81 pages long.

Gordon said the allegations in the third application related to issues from the first two submissions, along with "new and wide-ranging allegations".

Dealing with the applications before the extradition hearing could potentially waste court time and resources, and the court may not have jurisdiction to deal with the applications.

Gordon said Ortmann and van der Kolk had also filed an application in an attempt to remove the Crown's lawyers from the case due to what the co-accused called a conflict of interest.

"This tactic...by the respondents falls a long way short of the mark."

However, the defence is working to have the extradition hearing put off again while the applications are dealt with. 

Grant Illingworth QC, lawyer for Ortmann and van der Kolk said the applications had to be heard first if natural justice was to prevail.

The US had stopped the defendants from accessing legal and other expertise that would properly allow them to defend themselves against the extradition hearing, he said. 

Restrained funds needed to access US legal and technical expertise needed for the extradition trial had not been made available.

The overall case had involved "large sums of money", Illingworth said.

The restrained funds were "a very large source".

"The amounts that are being sourced to brief the US expertise are modest in comparison."

It was a "deliberate tactical decision" by the US to stop the accused from accessing the expertise they needed to defend themselves in the extradition hearing. 

Illingworth said continuing with the hearing before hearing the application would be unfair and a breach of natural justice.

Dealing with the applications after the extradition hearing would be "putting the cart before the horse".

"My rhetorical question is by what form of logic?"

It was "illogical and unprincipled" not to hear the applications, which dealt with fundamental issues, first. 

The US proposal for the order of events was "irrational", Illingworth said.

If the applications were successful it would mean there had been abuses of process and the extradition hearing itself would be flawed, he said. 

"Where the preliminary hearing would be flawed  it should not be embarked upon."

At the least the application in relation to access to experts needed to be heard first, he said. 

Adjournments were not desirable but were inevitable if the trial interfered with natural justice. 

This is the tenth attempt at hearing the extradition trial. Nine previous fixtures have been put off.

Monday's proceedings were heard by Auckland District Court Judge Nevin Dawson.

The German-born mogul greeted supporters in the courtroom with hugs and handshakes.

Fin Batato is representing himself during the trial. 

The arguments by both sides were continuing throughout the day. 

 - Stuff

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