IN THE COURT OF APPEAL OF NEW ZEALAND
I TE KŌTI PĪRA O AOTEAROA

CA302/2015
CA127/2017
CA128/2017
CA493/2017
CA494/2017
CA495/2017
CA511/2017
[2018] NZCA 233

BETWEEN
MATHIAS ORTMANN
First Appellant
BRAM VAN DER KOLK
Second Appellant
FINN HABIB BATATO
Third Appellant
KIM DOTCOM
Fourth Appellant

AND

UNITED STATES OF AMERICA
First Respondent
DISTRICT COURT AT NORTH SHORE
Second Respondent
Hearing: 12–15 and 19–23 February 2018 (further material received
20 April 2018)

[...]

JUDGMENT OF THE COURT

A Mr Dotcom’s, and Messrs Ortmann and van der Kolk’s, applications for leave to adduce further evidence on appeal are declined.

B Leave to file the submissions referred to in the memorandum of Mr Illingworth QC dated 24 April 2018 is declined.

C The questions of law on which Gilbert J granted leave are answered as follows:

(a) Question 1: Was the High Court Judge correct to find that the essential conduct with which the appellants are charged in each count constitutes an extradition offence for the purposes of s 24(2)(c) of the Extradition Act 1999?
Answer: Yes, though for somewhat different reasons.

(b) Question 2: Was the High Court Judge correct to conclude that copyright in a particular work does not form part of the accused person’s conduct constituting the extradition offences correlating to counts 4 to 8; and to conclude that proof of this is not required for the purposes of s 24(2)(d) of the Extradition Act 1999?
Answer: Yes. Copyright in a particular work was not part of the appellants’ conduct constituting the extradition offences alleged in counts 4–8 of the superseding indictment and it need not be proved for the purposes of s 24(2)(d) of the Extradition Act. Rather, it is a circumstance transposed when determining whether the offence is an extradition offence.

D The remaining applications for leave to appeal on the questions of law raised by the appellants are declined.

E The application for leave to appeal on the questions of law raised by the United States is declined.

F The eligibility determination made by the District Court is confirmed. The District Court should now proceed without further delay to complete its duties under s 26 of the Extradition Act in accordance with the determination.

G The appeal against Gilbert J’s decision to decline judicial review is dismissed. H The appeal in CA302/2015 is dismissed. I The parties are granted leave to file memoranda of no more than two pages in length, excluding the cover page, in relation to costs within 10 working days of the delivery of this judgment. The appellants are encouraged to file a joint memorandum.

Full Judgment: COAOrtmannvUSA.pdf

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