Supreme Court rules Kim Dotcom can be extradited - subject to judicial review

Kim Dotcom can be extradited to the United States to face 12 criminal copyright-related charges, the Supreme Court has ruled after a marathon legal wrangle.

But in a twist, the top court has granted Dotcom and his three co-accused the ability to challenge the decision through a judicial review.

The Supreme Court ruled the High Court and Court of Appeal were wrong not to consider their application for a judicial review of the original district court decision in 2015 that first ruled in favour of extradition.

German-born Dotcom had claimed the district court made a number of procedural and substantive errors but the two higher courts dismissed his call for a review as an abuse of process.

Dotcom’s New Zealand lawyer, Ron Mansfield, said he had spoken to Dotcom whose mood reflected a statement describing the Supreme Court ruling as “a mixed bag”.

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“There is no final determination he is to go to the US.

“However, the court has not accepted our important copyright argument, and in our view has made significant determinations that will have an immediate and chilling impact on the internet,” Mansfield said.

If the judicial review fails, the “final” decision on the extradition of Dotcom and his co-accused – Mathias Ortman, Finn Batato and Bram van der Kolk – will then be made by Justice Minister Kris Faafoi.

But Victoria University law professor Geoff McLay said even that might not be the end of the process.

That is because if Faafoi approved extradition, his decision could be subject to a further judicial review by Dotcom and dragged back through the courts one more time.

Dotcom was arrested in dramatic fashion in 2012 when armed police stormed his rented Auckland mansion by helicopter at dawn, at the behest of the FBI, alleging he was part of a “mega conspiracy”.

It soon unfolded that the crimes Dotcom and his co-accused were charged with were less sinister than the manner of the arrests suggested.

Nevertheless, US prosecutors alleged the Megaupload internet business facilitated widespread piracy of films and publications, costing rights holders more than US$500 million (NZ$757m).

The Supreme Court case began in June last year and hinged in part on arguments over whether Dotcom’s activities were – and needed to be – criminal offences in New Zealand at the time, for extradition.

The Supreme Court ruled that the offences would need to be punishable by at least one year in jail in both New Zealand and the US for the group to be extradited, upholding the principle of “double criminality”.

It ruled that was the case for 12 of the 13 charges brought by US prosecutors, with the exception being a money laundering conspiracy charge for which there was no matching New Zealand offence.

Speaking on the eve of the Supreme Court ruling, McLay forecast it would take Faafoi months to come to a decision, assuming the case finally reached him, especially as he was new to the justice portfolio.

“Faafoi, from my impression, has a go ‘quietly, go slowly’ methodology. He is definitely a ‘do no harm’ kind of minister.”

The Extradition Act gives the minister broad freedoms to consider “compelling or extraordinary circumstances”.

Faafoi would need to consider Dotcom’s claim that the case against him was politically motivated, McLay said.

Dotcom argued his arrest was orchestrated by then US vice-president Joe Biden to appease Hollywood interests in the wake of President Barack Obama torpedoing the Sopa anti-piracy bill, which would have introduced a maximum five-year jail term for streaming pirated content.

Faafoi might also need to consider Dotcom’s claim that the punishment he could face in the US was disproportionate, McLay said.

Six of the offences Dotcom and his co-accused are charged with carry maximum sentences of 20 years in jail in the US.

“I am not sure that we would have imprisoned him for very long, if at all,” McLay said.

“We don’t do the big ‘racketeering thing’ that the US does.”

But McLay believed the Government would be reluctant to acknowledge that as an issue, as doing so could affect extraditions more generally.

“If we get into that, it makes extradition very difficult as New Zealand has its own approach to how much time people spend in jail for various things and other countries obviously have very different approaches.”

McLay believed Dotcom would seek a judicial review of any decision by Faafoi favouring extradition, which means the case could potentially come back to the Supreme Court two more times.

That could mean the saga dragged on for years longer, he said.

As a former law commissioner, McLay contributed to a Law Commission report published in 2016 that warned “conflicting procedures” in the Extradition Act could lead to unnecessary delay.

The Dotcom case swung a wrecking ball of embarrassment through Kiwi institutions including the police, spy agencies and prison authorities.

In 2013, then prime minister John Key was forced to apologise to Dotcom after police found the Government Communications Security Bureau had illegally spied on Dotcom.

The following year, private prison operator Serco apologised to Dotcom for his treatment at Mt Eden prison after his arrest and to Stuff for initially providing incorrect information about his time in custody.

Dotcom alleged he had not received bedding, a towel, toilet paper, soap, shampoo, toothpaste or a toothbrush on the night of his incarceration, leaving him unable to wash himself after going to the toilet.

Police reached a confidential settlement with Dotcom in 2017 over his claim they used unreasonable force during his arrest, which Dotcom described as a “publicity stunt tailored to appease US authorities”.

The Human Rights Tribunal ruled in 2018 that the Crown needed to pay Dotcom $90,000 for privacy breaches by failing to release information agencies held about him.

McLay did not believe those blunders would make any difference in regard to extradition.

“I think as a matter of principle it should not,” he said.

“It should be for an American court to put all that into the basket and work out what any appropriate penalty should be.”