New Zealand High Court: FBI Must Release Its Evidence Against Kim Dotcom

from the not-going-well dept

The US's case against Kim Dotcom and Megaupload continues to run into significant problems. While the US Justice Department (with an assist from New Zealand law enforcement) has continued to insist that extraditing Kim Dotcom halfway around the world to the US was a mere formality, and that the evidence against him need not be shown, the courts in New Zealand have taken a rather different view. They refused to rubberstamp the acquisition as the US hoped. Then, the New Zealand High Court stepped in to review the extradition issue, making a final ruling that says that the FBI needs to reveal its evidence and that the extradition request does not comply with the law as currently written.

In other words, a complete and utter failure by the FBI in this effort.

The full ruling (pdf and embedded below) is quite an interesting read, if you've got the time. Basically, the court agrees with the assertion from the US that an extradition hearing isn't meant to try the full case... but, then points out that this doesn't mean you completely ignore the basic rights of the accused. It is still a criminal case, and as such they have certain basic rights that must be observed -- and which the US was trying to deny to Dotcom. The court considers a variety of case law, including some Canadian extradition cases, and even directly notes that some past cases involved "rubber stamp" approvals of extradition (literally using that term). However, more recent cases have pushed back against that and said that the home court need not try all of the evidence, but should at least look at the evidence to see if it is defective.

The court further notes the fundamental unfairness of the argument made by the US and New Zealand: "severely restrict[ing] the ability of [one party] to file relevant evidence would not easily be characterised as 'fair.'"

The bigger question, then, was whether or not the FBI needed to release its evidence to Dotcom, and again, the Court ruled against the US's position. The Court notes that the law enforcement folks rely on obsolete and outdated caselaw to make their argument, and notes that "I do not find this line of authority particularly persuasive" because they really cover different issues, and (of course) the arguments made appear to be stretched from the original intentions. The judge seems to recognize that the FBI and the Crown are making ridiculous arguments, noting that there is "nothing incompatible" with revealing the evidence in New Zealand and then using it in the US case should extradition be granted.
In my view disclosure should be provided by the requesting state. The Act provides the person sought with a right to challenge whether the threshold for extradition has been met before he will be extradited. Consistent with the requirements of... the Bill of Rights Act to a fair hearing, the person sought should be given access to sufficient information to enable him or her to fully participate in that hearing on an equally informed basis. Without access to materials relevant to the extradition hearing phase, the person sought will be significantly constrained in his or her ability to participate in the hearing and the requesting state will have a significant advantage in terms of access to information.
The order lists out what needs to be disclosed, and it's a pretty long list. Basically "all documents" relating to each of the key charges.

Separately, the judge noted that the "Record of Case" document, which the Crown (with the FBI) used to argue for extradition wasn't up to proper legal standards in that it did not provide the necessary info to support extradition.
She also found the "Record of Case", the document which made the argument for extradition, did not currently meet the legal requirements. She said the FBI was under an "obligation of candour" to provide any evidence which could impact on the court's judgment of whether the extradition threshold had been met - and no information had been provided to support FBI claims. The document "did not comply", she said.
Basically, this is the final ruling on this issue. The New Zealand government and the FBI can't appeal it any higher and now have to actually let Dotcom and his lawyers see the evidence against him. What a concept.

Filed Under: discovery, evidence, extradition, fbi, kim dotcom, new zealand
Companies: megaupload


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  1. icon
    Chargone (profile), 16 Aug 2012 @ 4:23am

    Re:

    ... Imbecile.

    diplomatic pressure won't affect the courts much. less than internal pressure from the public in the other direction, at least.

    and they Cannot afford to be seen as puppets of the crown, as the risk of that was Exactly why the general public were Against the removal of the monarch/privy council as the highest court of appeal in favour of the internal high court. the government of the day rammed it through Anyway, (sick of loosing cases that actually got that far when they pulled stupid shit, basically.), but the High Court loses all legitimacy the moment it starts being swayed by Anything other than evidence and the law as written at the time of the event.

    and with it would fall the government which was influenceing it.

    the current government here is Already in a precarious position, being known mostly for not having a valid plan and for outright lying to the public over and over again. (whatever idiot came up with the idea of claiming that Raising GST (a consumer Sales Tax, which is a regressive tax, hits those with a lower income much harder) and Lowering Income Tax (a progressive tax, in this case lowered most for the richest people) would somehow leave the Average New Zealander better off should be shot. not least because they were using the 'average income' as a basis for that. ... the average income which is about double what at LEAST half the population makes. ... let's not even get into the nonsense that is the claims about asset sales.)

    the New Zealand population is usually pretty laid back about stuff, but when you actually get them riled up (and this case is doing it) they tend to react quite significantly... and often in strange ways. (why riot when you can drive a tractor up parliament's steps and block the door with it? how exactly do you respond to the situation of the Highschool Students getting so pissed off with the constant disruption caused by disputes between the government and teachers that large numbers of said Students walk out on the school across the country at once? they didn't just go home, either, but mostly stayed in large groups being very obvious. (catching most officials completely by surprise and sort of in support of the teachers but mostly in support of getting their Classes back onto some sort of regular schedule. ring-leaders were a mix of the more disruptive and disreputable sorts and those who are normally the most well behaved model students. hilariously, at my own school at the time, a lot of the teachers knew it was going to happen. the principle, who the students generally agreed was rubbish, either didn't have a clue or had no idea how bad it was going to be)

    then there's protest marches half the length of the country or so, and if you go back a bit actual riots and the like.

    the whole anti-nuclear thing too. seriously, do you really expect a country that was willing to give up the protection offered by a treaty with the US against the (far more real and worrying possibility at the time than the US's worries about a communist 'domino effect') possibility of a resurgent Japanese empire in the name of a Principle (one adopted, hilarious, by ACCIDENT originally, though it proved too popular to be easily abandoned after the fact) and go so far as to forbid said country's ships (specifically the nuclear armed ones) entry to it's ports as well as the use of nuclear power in the country at all and has resisted all attempts to break that stance since, is going to Accept, no matter what it's government claims, such an offence on something far more concrete and immediate?

    go back about a hundred years now and you got actual wars. it's far enough in the past that it's unlikely to happen again, but not so far that people don't remember it as an option.

    and that's before even getting INTO the legalities and the idea of a fair hearing. nevermind JUSTICE.

    Justice must be swift, fair, and precise, neither punishing the innocent nor freeing the guilty, though letting the occasional guilty man free is better than punishing an innocent. likewise, there's a distinct limit to how much precision and fairness can be set aside for swiftness, but past a point a lack of swiftness leaves justice unserved.

    there is nothing fair, just, Or Legal, about what you suggest. At All.

    it is, in fact, the sort of thing wars are fought over, were it not for the large ocean in between and massive power difference between the nations in question.

    ... ... ok, this rant got sort of out of hand. oh well.

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