Kim Dotcom’s extradition – why the Court of Appeal and Supreme Court got it wrong

The Supreme Court has ruled on the latest round in Kim Dotcom’s fight to receive disclosure of the documents held by the US government which make up the evidence they’ll use against him, should the US successfully extradite Dotcom. In fact, it’s the final round in that fight, as Dotcom has now run out of Courts to appeal to. (A copy of the Supreme Court’s judgment is here, or if that’s too voluminous, here’s a copy of the Press Summary.)

The Supreme Court has upheld the Court of Appeal ruling that the US government does not have to provide copies of the documents it relies upon as part of its prosecution – the existing Record of Case provide by the US is enough. The judgment was a majority decision, with Chief Justice Elias dissenting. I’m of the opinion that Elias CJ was correct, but first, some background.

Kim Dotcom sought disclosure in the District Court of documents held by the US in relation to the criminal charges filed against him in that country. The District Court ordered disclosure (the disclosure orders made are attached as a Schedule to Elias CJs portion of the Supreme Court judgment). The Crown appealed, which was declined by the High Court. A further appeal was mounted to the Court of Appeal, who overruled the High Court. Dotcom then appealed to the Supreme Court, who have now upheld the Court of Appeal’s decision.

One can easily see why Dotcom wants those documents now, and why the US doesn’t want to give them to him. The number of documents which help form the prima facie case against Dotcom would run into the hundreds of thousands, possibly even millions. It would take months, years, before Dotcom’s legal team would be able to finish working their way through them, and the substantive extradition hearing simply wouldn’t be able to take place until that disclosure process was complete. It’s certainly in Dotcom’s interests to drag proceedings out as long as possible, while that’s the last thing the US wants.

Regardless of what Dotcom would have wished, that hope has now been dashed. The formal extradition hearing will now occur rather sooner than it might otherwise have done.

Is that the right decision though? To my mind, Elias CJs dissenting judgment was correct – that the District Court disclosure orders should be reinstated. For me, the whole issue hinges on s 25 of the Extradition Act 1999, the relevant parts of which follow below:

Record of case may be submitted by exempted country at hearing
(1) For the purposes of any determination under section 24(2)(d)(i), a record of the case may be submitted by or on behalf of an exempted country.
(2) A record of the case must be prepared by an investigating authority or a prosecutor in an exempted country and must contain—
(a) a summary of the evidence acquired to support the request for the surrender of the person; and
(b) other relevant documents, including photographs and copies of documents
(3) The record of the case is admissible as evidence if it is accompanied by—
(a) an affidavit of an officer of the investigating authority, or of the prosecutor, as the case may be, stating that the record of the case was prepared by, or under the direction of, that officer or that prosecutor and that the evidence has been preserved for use in the person’s trial; and
(b) a certificate by a person described in subsection (3A) stating that, in his or her opinion, the record of the case discloses the existence of evidence that is sufficient under the law of the exempted country to justify a prosecution in that country.

In order for an extradition order to be made, the Court must be satisfied (pursuant to s 24(2)(d)(i) of the Act that:

“… the evidence produced or given at the hearing would, according to the law of New Zealand, but subject to this Act, … justify the person’s trial if the conduct constituting the offence had occurred within the jurisdiction of New Zealand”.

That means that the US must produce evidence to show that it has a prima facie case against Dotcom. Section 25(1) of the Act says that the evidence “may” be presented by way of a Record of Case, while s 25(2) sets out what a Record of Case “must contain”. Section 25(3) essentially gets around the problem of admissibility by setting out a procedure to be followed which will provide admissibility.

So, the US has provided a Record of Case, and have complied with s 25(3), meaning that the Record is admissible. Nonetheless, Dotcom’s legal team have argued that the Record does not comply with s 25(2), as “other relevant documents” have not been included.

The obvious question therefore becomes, What is meant by “other relevant documents”? The Chief Justice sums up the answer admirability at paras 42 to 43 of her dissenting judgment:

[42] While the record of the case must contain “a summary of the evidence acquired to support the request for the surrender of the person”, it must also contain “other relevant documents, including photographs and copies of documents”.  If all “relevant documents” can be summarised under s 25(2)(a), it is difficult to see what the record “must” additionally contain under s 25(2)(b).  Perhaps because of this difficulty, counsel for the respondent, in the High Court, suggested that the “relevant documents” required to be included were “critical documents such as photographs supporting identification”.  As Winkelmann J said, it is hard to see on what basis s 25(2)(b) can be so read down.  Such interpretation sets up a criterion (what is “critical”) which is not based on anything in the statute and which would require assessment of degree in every case, a circumstance hardly compatible with a statutory specification of what must comprise the record.

[43] If “other relevant documents” are not restricted by the limiting description in paragraph (a) (in relation to the summary of evidence) to those “acquired to support the request for the surrender of the person”, they would potentially cover any documents relevant to determination of a prima facie case, rather than simply the documents relied upon by the requesting state to establish its case.  Since she considered that s 25(2)(a) required only the evidence relied on by the requesting state to be summarised, Winkelmann J considered that the most sensible reading of s 25(2) was that paragraphs (a) and (b) are linked. On that basis, the “summary” is one “document” to which “other documents” “acquired to support the request for surrender of the person” must be added to comprise the record of the case:

By its language s 25(2) imposes upon the requesting state an obligation to include within the [record of the case] both a document summarising the evidence acquired to support the request for surrender of the person and also other relevant documents that support that request.  This suggests a [record of the case] will typically be comprised of an overview of the case for extradition, a summary of the evidence of witnesses of fact.   It will also addend documents which provide the basis for the summary or are referred to in it, those documents thereby becoming admissible without the requirement that their authenticity be proved in accordance with the usual rules of evidence.

I agree with this analysis.

Essentially, Elias CJ states that documents relied on by the US to prove their prima facie case must be attached to the Record of Case. There’s no obligation to provide every document ever looked at by the US in their search for evidence, but the evidence relied upon must be disclosed. To my mind, that’s the correct reading of s 25.

Unfortunately, McGrath, Blanchard, William Young and Glazebrook JJ did not agree. Their respective portions of the judgment basically run the line that Dotcom and his defence team already have access to enough information in order to defend the extradition application. Section 25(2) is dispensed with thanks to the argument that parliament did not intend  the section to be read in such a way as occurred in the District and High Courts.

With respect, this appears to be an argument of convenience over principle and statutory interpretation. It would appear that matters of policy may have shaped the thinking of the majority, with the Court perhaps worrying that making disclosure orders will provide a burdensome precedent for future extradition cases.

A further argument appears to be that the NZ Courts have no power to order the US to provide further information. Certainly, I agree that a foreign power is not “compellable” to provide documentation, but the Supreme Court majority are in my opinion confusing what can be enforced with what can be ordered. The US needs to prove a prima facie case. NZ law sets out how an extradition hearing will occur and the steps that must be taken for an extradition order to be made. If the US is directed by the NZ Courts to provide certain documentation in order to comply with NZ law, and the US refuses to do so, then the consequence will be that their extradition application will fail. Sure, there’ll be no contempt penalties exacted by the NZ Courts against the US, but extradition case launched in the NZ Courts will be over.

This all leaves the substantive issue of whether the US is likely to succeed in its extradition attempt, but that’s a post for another time.

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