Ortmann v District Court at North Shore
[2015] NZHC 901
•1 May 2015
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2015-404-564 [2015] NZHC 901
UNDER
BETWEEN
Judicature Amendment Act 1972
MATHIAS ORTMANN First Plaintiff
BRAM VAN DER KOLK Second Plaintiff
KIM DOTCOM Third Plaintiff
FINN BATATO Fourth Plaintiff
AND
THE DISTRICT COURT AT NORTH SHORE
First Defendant
THE UNITED STATES OF AMERICA Second Defendant
Hearing: 21 and 22 April 2015 Counsel:
G M Illingworth QC, G J Foley and A L Hyde for first and second plaintiffs
R Mansfield and S Cogan for third plaintiff
F Batato in person
J C Gordon QC, M Ruffin and F Sinclair for second defendantJudgment:
1 May 2015
JUDGMENT OF KATZ J
This judgment was delivered by me on 1 May 2015 at 3:00pm Pursuant to Rule 11.5 High Court Rules
Solicitors: Keegan Alexander, Auckland
Registrar/Deputy Registrar
Anderson Creagh Lai Ltd, Auckland
Crown Law Office, Wellington
Counsel: J C Gordon QC, Auckland
G M Illingworth QC, Auckland
M Ruffin, Auckland
R Mansfield, Auckland
G J Foley, Auckland
ORTMANN, VAN DER KOLK, DOTCOM, BATATO v THE DISTRICT COURT AT NORTH SHORE [2015] NZHC 901 [1 May 2015]
Table of Contents
Introduction ..........................................................................................................[1]
Is an extradition hearing in June 2015 consistent with the requirements
of natural justice?.................................................................................................[7]
What does natural justice require in this case? [7]
Have the plaintiffs been given reasonable notice of the case against them? [10]
Will the plaintiffs have a reasonable opportunity to prepare and present
their case if the extradition hearing takes place in June 2015? [19] Mr Dotcom’s position [22] Mr Batato’s position [36] Messrs Ortmann and van der Kolk’s position [46]
The alleged errors of law ...................................................................................[54]
The issues [54]
Did the Judge err by requiring the plaintiffs to support their applications
for oral evidence orders with briefs of proposed evidence and exhibits? [59]
Did the Judge err by failing to require that any oral evidence order
applications be determined prior to the extradition hearing? [73]
Did the Judge err by allowing the United States to adduce evidence in
reply? [79]
Did the Judge err in allowing the United States to file supplementary
ROCs? [83]
Did the Judge err by allowing the United States to adduce evidence regarding the plaintiffs’ abuse of process application by way of a
supplemental ROC? [92]
Are the challenged decisions amenable to judicial review?..........................[106] Summary and conclusion ................................................................................ [111] Result ................................................................................................................. [119]
Introduction
[1] Mathias Ortmann, Bram van der Kolk, Kim Dotcom and Finn Batato, (together, “the plaintiffs”) currently reside in New Zealand. The United States of America seeks their extradition to face charges of criminal copyright infringement, wire fraud, money laundering and racketeering. The charges relate to the plaintiffs’ involvement in the Megaupload group of companies.
[2] Since the plaintiffs arrest in January 2012 there has been extensive related litigation which has impacted (directly or indirectly) on the timing of the extradition hearing. This has included judicial review proceedings brought by the United States regarding the extent of disclosure it is required to provide (finally determined on
21 March 2014)1 and proceedings brought by the plaintiffs challenging the validity
of the search warrants granted by the District Court on 19 January 2012 (finally determined on 23 December 2014).2
[3] On 17 November 2014 Simpson Grierson, then solicitors on the record for all of the plaintiffs, were granted leave to withdraw. Counsel for Mr Dotcom was also granted leave to withdraw at that time. Mr Foley, who was separately engaged as counsel for Messrs Ortmann and van der Kolk, did not seek leave to withdraw. He remains involved in the proceedings, now as junior counsel to Mr Illingworth QC. As a result of the withdrawal of most of the plaintiffs’ legal team in November 2014, the extradition hearing was adjourned from 16 February 2015 to 2 June 2015.
[4] Mr Dotcom’s current solicitors (Anderson Creagh Lai) and counsel (Mr Mansfield) accepted instructions to act for him in about mid December 2014, subject to suitable arrangements being put in place regarding funding. They say that sufficient funding to enable them to prepare for the extradition hearing was not available until 18 April 2015. They were accordingly unable to meet timetable orders set by Judge Dawson on 19 December 2014, which were aimed at ensuring
the extradition hearing would be ready to proceed on 2 June 2015.
1 Dotcom v United States of America [2014] NZSC 24; [2014] 1 NZLR 355.
2 Dotcom v Attorney-General [2014] NZSC 199.
[5] An application to adjourn the hearing was declined by the Judge on 20 March
2015.3 The plaintiffs now seek to judicially review that decision. They say that it is simply not possible for them to be ready to proceed with an extradition hearing on
2 June 2015. In particular, they claim that:
(a) the Judge failed to act consistently with the requirements of natural justice because:
(i) they have not yet been given reasonable notice of the United
States’ case for extradition; and
(ii)in any event (regardless of whether they have been given reasonable notice or not) a fair hearing is not achievable in June 2015, for reasons primarily related to funding and representation;
(b)the Judge committed errors of law by making timetable directions that were inconsistent with the statutory regime which governs the extradition process.
[6] I will address each issue in turn.
Is an extradition hearing in June 2015 consistent with the requirements of natural justice?
What does natural justice require in this case?
[7] The purpose of an extradition hearing is not to determine whether the requested persons are guilty of the alleged crimes. Rather, the court’s role is to decide if they are eligible for surrender to face trial in the country where they have been accused. To do this the requesting country must provide evidence to establish,
in effect, that there is a prima facie case against the requested persons.
3 United States of America v Dotcom DC North Shore CRI-2012-092-001647, 20 March 2015.
[8] It was not in dispute that it is fundamental to the integrity of the extradition process that the court must act in accordance with the principles of natural justice, as enshrined in s 27(1) of the New Zealand Bill of Rights Act 1990 (“NZBORA”). In Dotcom v United States of America McGrath and Blanchard JJ outlined the requirements of natural justice in an extradition context as follows:4
[118] In 1997, Elias J (as she then was) pointed out, in an immigration case, that the principles affirmed by s 27 are those established, prior to an enactment of the Bill of Rights Act, by the common law, adding:
Fundamental to the principles of natural justice is the requirement that where the circumstances of decision making require that someone affected by it be given an opportunity to be heard, that person must have reasonable opportunity to present his case and reasonable notice of the case he has to meet. The more significant the decision the higher the standards of disclosure and fair treatment. In cases involving immigration status, high standards of fairness are required by natural justice because of the profound implications for the lives of those affected.
The final point might equally be made of the extradition process. (footnotes omitted)
[9] Accordingly the plaintiffs must, at a minimum, be given reasonable notice of the case they have to meet and be afforded a reasonable opportunity to present their case. Beyond that, the content of the right to natural justice is contextual. Although high standards are required in an extradition context, it must also be borne in mind that the purpose of an extradition hearing is not to determine whether the requested persons are guilty of the alleged crimes, but rather to decide if they are eligible for surrender to face trial in the country where they have been accused. “Natural justice
requirements reflect what is required in relation to that preliminary decision”.5
Have the plaintiffs been given reasonable notice of the case against them?
[10] There is an extradition treaty in force between the United States and New Zealand (“Treaty”). Extradition treaties are subject to the mandatory restrictions on surrender contained in the Extradition Act 1999, certain provisions of that Act
relating to determining eligibility for surrender, and any statutory provision
4 Dotcom v United States of America, above n 1, at [118] citing with approval the comments of
Elias J in Ali v Deportation Review Tribunal [1997] NZAR 208 (HC) at 220.
5 Dotcom v United States of America, above n 1, at [191] per McGrath J.
conferring a particular power on the Minister or a Court.6 Otherwise, the Extradition Act is construed to give effect to any extradition treaty.7 The stated object of the Extradition Act is to enable New Zealand to meet its extradition obligations, including in particular its obligations under extradition treaties.8
[11] Certain countries have “exempted status” under the Extradition Act. Those countries (which include the United States) are entitled to utilise the record of case (“ROC”) procedure set out in the Act. The ROC procedure applies to a fairly limited group of countries that New Zealand recognises as being committed to the protection of fundamental rights in the investigation, accusation and trial of those charged with
committing serious crimes.9 It enables the evidence in support of the extradition
application to be presented in summary form. It is not necessary to include in the ROC all the documents and exhibits relied on by the requesting state.10 Rather, if the ROC is certified by the requesting state, then the general reliability of the evidence presented is presumed, although that presumption is rebuttable.11
[12] An extradition hearing involves two key steps:
(a) First, under s 24(2)(c) of the Extradition Act the court must be satisfied that the offences for which surrender is sought are extradition offences, as defined in s 4 of the Act. This is essentially a legal question.
(b)Second, under s 24(2)(d) the court must determine whether the requesting state’s evidence would justify the requested persons being put on trial for the alleged offending if the conduct constituting the offence had occurred in New Zealand. Where the ROC procedure is used (as in this case) this essentially involves assessing the evidence set out in the ROC that has been filed by the requesting country, to
determine whether it establishes a prima facie case.
6 Extradition Act 1999, s 11(2).
7 Extradition Act, s 11(1).
8 Extradition Act, s 12.
9 Dotcom v United States of America, above n 1, at [191] per McGrath J.
10 Dotcom v United States of America, above n 1, at [190] per McGrath J.
11 Extradition Act 1999, s 25.
[13] At its simplest, the plaintiffs’ argument on this issue was that although the United States has disclosed the evidence it relies on ([12](b) above) it has not given a sufficient outline of its legal analysis as to why the offences for which surrender is sought meet the definition of extradition offence ([12](a) above).
[14] This issue was previously raised in late 2013. The District Court ordered the provision of further particulars, which were provided by letter dated 31 October
2013. There was no suggestion by the plaintiffs at the time that the particulars provided were insufficient. It is therefore somewhat surprising that the issue was raised again before Judge Dawson in March 2015, as a ground for seeking an adjournment.
[15] Although the Judge rejected the submission that insufficient particulars had been provided, the United States voluntarily provided further details of which specific Treaty offences corresponded to the counts in the indictment, by letter dated
25 March 2015. The plaintiffs say those particulars are still insufficient. Rather, they will not be properly informed of the case they have to meet until they receive the United States’ written submissions for the extradition hearing. Only then, they say, should they have to decide whether to call evidence at the extradition hearing. On the current timetable, however, they have to file evidence before receiving those submissions.
[16] In my view the Judge was correct to reject the submission that the plaintiffs have not been given reasonable notice of the United States’ case. The Supreme Court in Dotcom v United States of America was clearly of the view that, in most cases at least, disclosure of the ROC would be sufficient to fairly put a subject person on notice of the case they had to meet. For example, McGrath J observed that:12
[190] A person the subject of extradition proceedings in New Zealand is not entitled to disclosure of the kind available in domestic criminal proceedings. The entitlement is no more than to receive, in advance of the extradition hearing, the material that the requesting state will rely on before the extradition court.
12 Dotcom v United States of America, above n 1, at [190].
[17] His Honour noted, however, that the requesting state owes a duty of candour to the extradition court and limited access to further information may be possible in exceptional circumstances.13 Young J similarly observed that “the obligation to give the requested person fair notice of the case to be advanced is discharged by the record of the case” and that:14
[234] A requesting state must also provide reasonable particulars of the charge in respect of which extradition is sought. It follows that an extradition court is entitled to direct that further particulars be given if that is necessary to ensure a fair hearing. I think it is unlikely that such a direction will be required where there is a record of the case, as the summary of the evidence relied on should obviate any need for further particulars.
[18] In this case further particulars were sought and provided in October 2013. Additional particulars were provided, voluntarily, on 25 March 2015. In my view those particulars give sufficient notice of the legislative provisions and Treaty clauses the United States relies upon. When such information is viewed together with the very detailed indictment, the ROC, and the six supplemental ROCs (comprising in total about 250 pages of summarised evidence) it cannot be seriously argued that the plaintiffs have insufficient notice of the case they have to meet.
Will the plaintiffs have a reasonable opportunity to prepare and present their case if the extradition hearing takes place in June 2015?
[19] The other key aspect of natural justice in this case is the plaintiffs’ right to be afforded a reasonable opportunity to present their case.
[20] The current timetable orders are as follows:
(a) 20 March 2015 - Plaintiffs to advise whether they agree with the section 9 Evidence Act 2006 admissions proposed by the United
States.
13 Dotcom v United States of America, above n 1, at [193].
14 Dotcom v United States of America, above n 1, at [245]. See also [233].
(b) 27 March 2015 – Plaintiffs to file and serve:
(i)oral evidence applications with briefs of proposed evidence and copies of exhibits attached for the extradition eligibility hearing; and
(ii) affidavits in support of their abuse of process application.
(c) 24 April 2015 – The United States to file and serve any evidence in reply, whether by a supplement to the record of the case or an application to bring oral evidence.
(d)1 May 2015 – The United States to file and serve extradition eligibility submissions. Plaintiffs to file abuse of process submissions.
(e) 22 May 2015 – The plaintiffs to file and serve extradition eligibility submissions in reply.
(f) 2 June 2015 – Extradition eligibility hearing to commence. Abuse of process application to be heard at the outset.
[21] None of those steps have yet occurred, as a result of breaches of the timetable by the plaintiffs. The plaintiffs say that it is not possible for them to comply with the timetable, primarily for reasons of funding and representation. I will consider in turn the position of Mr Dotcom, Mr Batato, and Messrs Ortmann and van der Kolk (who are jointly represented).
Mr Dotcom’s position
[22] Judge Dawson accepted that the plaintiffs’ legal representatives, with the exception of Mr Foley, were relatively new to the proceedings as at 20 March
2015. He expressed the view, however, that the legal issue I have identified at
[12](a) above, which is essentially a threshold jurisdictional inquiry, “is an issue of
law on which competent counsel should easily be in a position to argue by 2 June
2015”.15 I share the Judge’s assessment of that issue.
[23] Whether Mr Dotcom will have a reasonable opportunity to address the evidential sufficiency of the United States case (the issue I have identified at [12](b) above) is a more difficult issue. In Flickinger v McElrea Smellie J, judicially reviewed a decision by the District Court not to adjourn an extradition hearing.16 In setting aside the District Court’s decision, his Honour noted that:17
It is trite law but nonetheless fundamental that a party facing criminal proceedings such as this extradition application should not be forced on to trial without Counsel representing him having adequate time to prepare and consider all the relevant information.
[24] Although I find the matter to be very finely balanced, I have ultimately concluded that there is a real risk that Mr Dotcom will not have a reasonable opportunity to meet the United States case if the hearing proceeds on 2 June 2015, for the reasons I outline below.
[25] First, the relevant background events:
(a) 2012 – Potter J made various restraining orders in respect of Mr Dotcom’s (then) New Zealand assets under the Mutual Assistance in Criminal Matters Act 1992. The sum of $5.2m was released to meet Mr Dotcom’s legal and other expenses (the last payment was made in May 2013). Leave was reserved for the parties to apply for future directions and orders.
(b)17 November 2014 - Simpson Grierson were granted leave to withdraw, together with Mr Dotcom’s senior counsel. The extradition hearing was adjourned from 16 February 2015 to 2 June 2015.
(c) 25 November 2014 – Various members of the Motion Picture
Association of America (“MPAA”) obtained an interim freezing order
15 United States of America v Dotcom, above n 3, at [5].
16 Flickinger v McElrea HC Auckland M235/90, 20 February 1990.
17 At [8].
over the assets of the Trust Me Trust on the basis that it was reasonably arguable that the trust was a sham and Mr Dotcom was the beneficial owner of the assets held on trust, which largely comprised shares in Mega Limited, a new business Mr Dotcom had established in 2012 in order to support his family from assets that were not
restrained.18
(d)Approximately 19 December 2014 – Mr Dotcom engaged his new solicitors and counsel, who accepted instructions conditional on suitable funding arrangements being put in place.
(e) 23 December 2014 – Mr Dotcom’s new legal team applied to vary the restraining orders made by Potter J over Mr Dotcom’s assets, in order to meet his living expenses and ongoing legal expenses, including in particular the expenses association with the extradition hearing.
(f) 12 March 2015 - Courtney J made an interim order to allow for payment of legal and living expenses to Mr Dotcom, up to
$700,000.19 Her Honour found that Mr Dotcom did not have the
ability to meet his immediate legal and living expenses from unrestrained assets.
(g) 18 April 2015 – Courtney J released significant further funds from
restraint to meet Mr Dotcom’s ongoing legal expenses.20
Mr Mansfield accepted that those funds (assuming they are indeed available pending appeal or any other challenge) are ample to prepare for the extradition hearing.
[26] Mr Dotcom was accordingly without legal representation in these proceedings from 17 November 2014 until about 19 December 2014. It appears that
from at least 25 November 2014 (and probably well prior to that) Mr Dotcom was
18 See Commissioner of Police v Dotcom [2015] NZHC 458 at [4].
19 Commissioner of Police v Dotcom & Ors [2015] NZHC 458.
20 Commissioner of Police v Dotcom [2015] NZHC 761. Her Honour’s reasons for that decision
were delivered on 23 April 2015 in Commissioner of Police v Dotcom [2015] NZHC 820.
unable to meet his legal expenses from unrestrained assets. Interim funding was made available to him on 12 March 2015 and significant further funds were released from restraint on 18 April 2015.
[27] Mr Dotcom’s new legal team accepted instructions subject to suitable funding arrangements being put in place. While they were prepared to undertake some work in the hope of eventually being paid (including undertaking a High Court application to release further funds from restraint) they were not willing to undertake preparation for a four to five week extradition hearing “pro bono”. Further, even if Mr Dotcom’s solicitors and counsel could have been reasonably expected to undertake such significant work in the hope of future payment (which they dispute) they had no funds to engage expert witnesses.
[28] Mr Mansfield advised that Mr Dotcom intends to engage two United States academics to give expert evidence on aspects of United States copyright law, a New Zealand expert on copyright law, and Mr Dotcom’s US attorney to give factual evidence. All of those witnesses require payment and could not be formally engaged until funding was secured. Briefs of evidence were due to be filed, however, relatively shortly after Courtney J’s judgment of 12 March 2015 was delivered, ordering an interim payment of funds to cover legal expenses. By then it was simply impossible to comply with the current timetable (putting to one side the prospect that her Honour’s judgment would be appealed or otherwise challenged).
[29] Ms Gordon QC submitted, on the other hand, that the proposed scope of defence evidence was overly ambitious and unrealistic, given that an extradition hearing is in the nature of a committal hearing. Any defence evidence should be very limited in scope. The ROC is presumed to be reliable.21 If on its face it meets s 24(2)(d), it can only be challenged by showing that some part of it, essential to eligibility, should be completely rejected as unreliable. Evidence which is merely
exculpatory, which suggests only an alternative context or meaning, or which
otherwise concerns trial defences, will not be relevant.22
21 Dotcom v United States of America, above n 1, at [190]; United States of America v Dotcom
[2013] NZCA 38; [2013] 2 NZLR 139 at [105].
22 United States of America v Dotcom, above n 21, at [108] and [105]. See also United States of
America v Mach [2006] OJ No 3204, (2006) 70 WCB (2d) 318 (SCJ), at 8-9. The relevant
[30] While there appears to be considerable merit in Ms Gordon’s submissions, it is ultimately for Mr Dotcom and his legal advisers to decide on the scope of evidence they wish to seek to admit at the extradition hearing. It is not possible for me to conclude, in these proceedings, that their foreshadowed evidence will be inadmissible. That will be a matter for the extradition judge to determine.
[31] The United States also submitted that Mr Dotcom’s funding difficulties are, in essence, self-inflicted. He is said to have improperly divested himself of assets (namely his beneficial interest in the Trust Me Trust which holds shares in Mega Limited) that would otherwise likely have been available to him to fund these proceedings. The Trust Me Trust is said to be a sham and Mr Dotcom’s conduct in relation to it is said to amount to equitable fraud. If a person “by conduct creates a situation in which, on a proper balancing of the various interests, further delay in the holding the trial is not to be tolerated, there will have been no breach of the s 24
[NZBORA] rights”.23 The same applies, the United States submits (and I accept) to
the natural justice rights enshrined in s 27 of NZBORA.
[32] If the allegations that have been made regarding the Trust Me trust are true, then I have no doubt that the alleged conduct would constitute conduct of the type envisaged by the Supreme Court in Condon v R where, on a proper balancing of the various interests, further delay in the holding the trial is not to be tolerated. In that event there would be no breach of Mr Dotcom’s rights to natural justice if the extradition hearing proceeded in June.
[33] The difficulty I face, however, is that it is simply not possible to determine the truth or otherwise of the allegations regarding the Trust Me Trust in the context of these proceedings, which have been argued on the basis of untested affidavit evidence. Whether Mr Dotcom has improperly divested himself of assets is an issue that will fall for determination in the separate proceedings that have been brought
against him by the MPAA. For present purposes I must give Mr Dotcom the benefit
principles in Mach were approved in United States of America v Edwards 2011 BCCA 100; (2011); 271 CCC (3d) 471 at [31]–[35] and United States of America v Anderson 2007 ONCA
84; 85 OR (3d) 380 at [30], [43]–[46].
23 Condon v R [2006] NZSC 62; [2007] 1 NZLR 300 at [80].
of the doubt on the issue. Further, the assets of the Trust Me Trust, whoever may ultimately be entitled to them, are currently subject to freezing orders.
[34] Mr Dotcom’s present legal team was only engaged shortly before
19 December 2014 (albeit on a conditional basis) and could have only commenced serious preparation for the extradition hearing from 13 March 2015 onwards, at the earliest. Although they have no doubt received significant benefit from the work undertaken by Mr Dotcom’s previous legal team, this did not include preparation of briefs of evidence.
[35] As I have already noted, the Supreme Court observed in Dotcom v United States of America that high standards of fairness are required by natural justice in an extradition context. For the reasons I have outlined, I am not satisfied that Mr Dotcom will have a reasonable opportunity to prepare and present his case if the extradition hearing proceeds on 2 June 2015.
Mr Batato’s position
[36] At the time of the adjournment hearing in the District Court, Mr Batato’s legal aid application was extant. The Judge appears to have assumed it would likely be granted imminently, as he expressed the view that “new counsel for Mr Batato should still have over two months to prepare for the extradition hearing”.24 Since then, however, Mr Batato’s legal aid application has been refused. It seems that the Legal Services Agency may be willing to reconsider the position if further information is provided. The current position, however is that he will have to represent himself at the extradition hearing.
[37] In Dotcom v United States of America, the Supreme Court were unanimously of the view that s 27 of NZBORA (the right to natural justice) applies to extradition hearings, but were divided as to whether the rights contained in ss 24 and 25 (including in particular the right to a fair trial) were also engaged, with the majority
concluding they were not.25 Nevertheless, in my view, helpful guidance can be
24 United States of America v Dotcom, above n 3, at [35].
25 Dotcom v United States of America, above n 1, at [115] - [116] per Blanchard and McGrath JJ
and [211] and at [211] per Young J.
obtained from the case law which considers fair trial rights for defendants who are self-represented, given the Supreme Court’s observation that natural justice requires that high standards of fairness be observed in extradition proceedings.
[38] In R v Condon the Court noted that the right to a fair trial, affirmed by s 25(a), is an absolute right.26 If , because the accused had no lawyer or for any other reason, the trial is fundamentally flawed, the accused will not have had a fair trial and the conviction must be quashed.27
[39] Where an accused is “unwillingly” self-represented (in other words, he or she has not waived or forfeited his or her right to legal representation) the trial is presumed to be unfair. On appeal against conviction the onus will be on the Crown to satisfy the appellate court that the trial was, in fact, fair. This is a high threshold. On the other hand, if the accused was “willingly” self-represented there will be no presumption of unfairness. Nevertheless an appellate court will need to carefully consider all of the relevant facts to determine whether, in the particular circumstances, the right to a fair trial was compromised. One of the examples given by the Supreme Court in Condon of circumstances in which an accused can be said to be deliberately self-represented is where they have “been rightly refused
legal aid”.28
[40] The Supreme Court in Condon indicated that a trial would be unfair where “the defence could not, in the particular case, have been adequately conducted without the assistance of counsel”.29 With the exception of R v Petricevic30 (which involved a pre-trial adjournment application) the relevant authorities are mostly at appellate level. They accordingly take a “post trial” perspective on whether the defence was adequately conducted without the assistance of counsel. It is clear from these authorities that trials involving self-represented persons will not
necessarily be unfair. Each case will turn on its own facts.
26 Condon v R, above n 23, at [77].
27 Above n 23, at [77].
28 At [80].
29 At [80].
30 R v Petricevic HC Auckland CRI-2008-004-029179, 12 July 2011.
[41] Some of the factors which have been found to be relevant to the fairness of the trial process have included:
(a) The manner in which the accused came to be unrepresented.31
(b) The complexity of the factual and legal issues.32
(c) The seriousness of the charges and the likely penalty if convicted.33
(d)The personal characteristics of the accused including his experience and knowledge of the issues in the case34 as well as his verbal skills and intellectual capacity.35 This is likely to be relevant to the effectiveness of the accused in conveying the defence theory of the case.
(e) The amount of work done prior to withdrawal of counsel and whether the accused had the benefit of legal advice in the pre-trial stages of the proceedings. Appellate courts will “carefully consider what occurred at the trial and during the earlier period when the accused was preparing to conduct the defence”.36
(f) The manner in which the Judge presided over the trial, including whether the Judge explained the court procedures and trial processes to the accused.37 There is a heavy burden on the Judge to ensure
that a self-represented accused receives a fair trial.38
31 Condon v R, above n 23, at [81].
32 Smith v R HC Invercargill AP28/93, 25 November 1993 at 5, per Williamson J; see also R v Hill
[2004] 2 NZLR 145 (CA) at [79]; cf R v McKinnon CA240/04, 4 May 2005 at [48].
33 Condon v R, above n 23, at [73].
34 See for example R v Petricevic, above n 30, at [51] - [53].
35 In Misiuk v R it was noted that Mr Misiuk had the necessary intellectual capacity and verbal
skills to conduct his case. The trial Judge referred to him as “a man of exceptional intelligence”.
36 Condon v R, above n 23, at [81].].
37 Condon v R, above n 23, at [82]; the assistance of the Court was also noted in Misuik v R, above n 35 at [37].
38 R v Redhead [2009] NZCA 497 at [35]; see also Condon v R, above n 23, at [82]; R v McFarland [2007] NZCA 449 at [56] and R v Cumming [2006] 2 NZLR 597 (CA) at [51]-[52] (overturned on appeal on an unrelated issue).
(g)Whether the trial involved legally represented co-accused, particularly where there is a common defence or some commonality of interest between co-defendants.39
(h)The appointment of an amicus to assist a self-represented accused and the role played by that person.40
[42] Taking these factors into account, by analogy, I have concluded that there is a real risk that Mr Batato will not be able to adequately prepare for and meet the case against him by 2 June 2015. My key concerns are the factual and legal complexity of the issues and the fact that Mr Batato has only just been informed (on 21 April 2015) that his legal aid application has been declined. This was less than six weeks before the extradition hearing, and after the date for filing evidence had passed.
[43] With additional time to prepare, however, there is no reason to believe that it will not be possible for Mr Batato to adequately represent himself at the extradition hearing, although it is obviously not the ideal scenario.
[44] Mr Batato will be able to derive significant benefit from the work undertaken by his former legal team prior to their withdrawal. He will also derive significant benefit from the fact that the other three plaintiffs are legally represented. In that respect this case is similar to Bridgecorp, where the Court of Appeal saw it was significant that there were “substantial commonalities of interest amongst the accused”, who “could be expected to benefit from the combined strengths of all
counsel”.41 Given the combined strength of the plaintiffs’ legal teams, Mr Batato
should be able to focus primarily on the specific factual issues relating to his personal involvement in the Megaupload business.
39 In R v Petricevic, above n 30, the Court noted at [34] that if it was necessary for the defence to present expert accounting evidence it was “almost inevitable” that one of the other accused, who were represented, would do so.
40 In Misiuk v R, above n 35, the Court of Appeal found that Mr Misiuk had been given considerable assistance (at [37]). An amicus was also appointed in R v Redhead, above n 36. The Supreme Court in Condon (at [22]) noted that in assessing the fairness of the trial of an unrepresented accused, regard must be had to whether the accused had the benefit of guidance from a lawyer or an amicus at any time prior to or during the trial
41 Roest v R [2013] NZCA 547, [2014] 2 NZLR 296, at [42].
[45] In this context I note that there was some suggestion of a further application for legal aid. For the avoidance of doubt, Mr Batato should not further delay his own preparations for the extradition hearing in the hope that he will eventually secure legal representation. He is currently unrepresented and must act accordingly.
Messrs Ortmann and van der Kolk’s position
[46] Messrs Ortmann and van der Kolk each have funds in Hong Kong, which include proceeds from Megaupload. Those funds have been restrained by the Hong Kong courts. Messrs Ortmann and van der Kolk’s reasonable legal costs in New Zealand can, however, be met from the restrained funds.
[47] Mr Ortmann expressed concern that the United States has now issued in rem civil forfeiture proceedings in Virginia, with a view to enforcing such orders in Hong Kong and New Zealand. In his affidavit of 23 February 2015 (sworn in support of his adjournment application in the District Court) he deposed that:
If such enforcement is successful, this would trump the relief orders and cut
off my and Mr van der Kolk’s funding stream for our legal team.
I note further that the relief orders mandate a process of approval of legal costs by senior New Zealand counsel…This process takes a considerable amount of time to implement…I am greatly concerned that if the forfeiture orders are recognised in Hong Kong, this is likely to result in costs already incurred not being paid and no further bills of costs being paid either.
…
The result of this strategy on the part of the United States government is that we cannot give our legal team any assurance that the costs of the extradition defence will be met from the Hong Kong funds. The uncertainty created by the United States application has therefore caused our case preparation to be stalled.
[48] Mr Ortmann’s second affidavit in these proceedings (sworn 10 April 2015) annexed various documents relating to the Virginia proceedings. No explanation is provided regarding those documents by either Mr Ortmann or (ideally) a US and/or Hong Kong qualified lawyer. It appears from my own perusal of those documents that the Virginia Court has now ordered worldwide forfeiture of the plaintiffs’ assets, but that the plaintiffs have appealed against that decision. The timetable orders in
relation to that appeal appear to run through until about early July 2015. It is not clear when the appeal will be heard.
[49] A copy of an application to register the US Order in New Zealand is annexed to Mr Ortmann’s affidavit, but no similar application to register the US Order in Hong Kong appears to have been provided. There is also no evidence as to whether it is possible to register and enforce a foreign forfeiture order in Hong Kong in circumstances where that order is under appeal and is accordingly not yet final. Nor do I have any information as to the likely timeframe for registration of such orders in Hong Kong, in the event that any application is opposed. Further, there is no evidence as to whether the Hong Kong courts, if the worldwide restraining order was registered in that jurisdiction, would be likely to continue the current arrangements whereby Messrs Ortmann and van der Kolk can access restrained fund to meet legal expenses.
[50] There is therefore no evidence before me that Messrs Ortmann and van der Kolk cannot currently fund the extradition proceedings. Rather, they are concerned that their current funding stream may be at risk as a result of future enforcement action by the United States. Such concerns do not, in my view, justify Messrs Ortmann and van der Kolk’s “case preparation to be stalled,” as they claim. Unless and until their funding stream is cut off, preparation for the extradition hearing should have continued as normal. Messrs Ortmann and van der Kolk’s position is far removed from that of Mr Batato (who cannot fund a lawyer at all) or Mr Dotcom (who Courtney J found was unable to fund his legal team from his unrestrained resources prior to 12 March 2015).
[51] Messrs Ortmann and van der Kolk also argued, however, that they have been significantly impacted by Mr Dotcom’s funding issues, due to the collaborative approach that the plaintiffs have taken to the litigation to date. For example, Mr Ortmann deposes that Mr Ira Rothken and the law firm Quinn Emanuel have been retained by Mr Dotcom and Megaupload in respect of related proceedings in the United States. Mr Rothken and Quinn Emanuel are said to have been an important resource for all of the plaintiffs “given their expertise in the subject matter of this case, including advice as to US law and process”. Mr Dotcom is said to have
previously met most of their expenses. Substantial sums are owing to Mr Rothken and Quinn Emanuel and they have accordingly refused to work substantively on the New Zealand proceedings “until earlier accumulated costs are met”.42
[52] Mr Ortmann deposes that he has instructed his solicitors to seek the release of his restrained funds in Hong Kong “to retain US counsel to assist my New Zealand solicitors and counsel with preparation for hearing”. He notes that that application may be unnecessary should Mr Dotcom’s funds be released (as they now have been).
[53] The submission that Messrs Ortmann and van der Kolk will not have a reasonable opportunity to prepare and present their case if the extradition hearing proceeds on 2 June 2015 is not a particularly compelling one on the evidence they have presented. I have ultimately concluded, however, that although they have had access to funds to meet their legal expenses, they have likely not had access to sufficient resources to prepare the foreshadowed evidence. It appears to have been envisaged that Mr Dotcom and his team would take the lead on evidence issues, and preside the necessary funding (or most of it). In this respect Messrs Ortmann and van der Kolk’s preparation has been detrimentally impacted by Mr Dotcom’s funding issues.
The alleged errors of law
The issues
[54] It seems likely that the timetable set for any new hearing date will broadly follow the sequence and structure of the current timetable orders. The plaintiffs allege in their second cause of action, however, that those timetable orders are unlawful, as they breach the relevant statutory provisions.
[55] Section 22 of the Extradition Act provides that the District Court must conduct the extradition proceeding in the same manner as if it was a committal hearing in respect of an indictable offence alleged to have been committed in
New Zealand. Part 5 of the Summary Proceedings Act 1957 (“SPA”) applied to such
42 I do note, however, that Mr Rothken was in Court in Auckland (as an observer) during the course of the two day hearing before me.
offending, until that legislation was repealed by the Criminal Procedure Act 2011. Section 22 of the Extradition Act requires, however, that Part 5 of the SPA continue to be applied in an extradition context “so far as applicable and with necessary modifications”.
[56] The United States denied that the Judge made any errors of law when setting the timetable. It submitted that, to the extent any modifications have been made to the procedures set out in Part 5 of the SPA, such modifications are necessary. The United States further notes that the current timetable reflects the same sequence that the court has adopted since timetabling orders began to be imposed and that the plaintiffs’ counsel have never previously challenged the appropriateness of the timetable directions made, or their sequence.
[57] The second cause of action gives rise to the following key issues:
(a) Did the Judge err in requiring the plaintiffs to support their applications for oral evidence orders with briefs of proposed evidence and exhibits?
(b)Did the Judge err by making no provision for the determination of the oral evidence order applications prior to the filing of submissions, or indeed the hearing itself?
(c) Did the Judge err by allowing the United States to adduce evidence in reply?
(d)Did the Judge err in allowing the United States to file and serve supplementary ROCs?
(e) Did the Judge err by allowing the United States to adduce evidence in relation to the plaintiffs’ abuse of process application by way of a supplemental ROC rather than by affidavit?
[58] I will consider each issue in turn.
Did the Judge err by requiring the plaintiffs to support their applications for oral evidence orders with briefs of proposed evidence and exhibits?
[59] The first error of law alleged by the plaintiffs is that the Judge required the plaintiffs to support their applications for oral evidence orders with briefs of proposed evidence and exhibits. This was said to be contrary to the procedure set out in Part 5 of the SPA.
[60] The purpose of a committal hearing under the previous regime was to determine whether sufficient evidence existed to proceed to trial. In other words, is there a prima facie case? The SPA provided for two forms of committal. A standard committal took place on the papers and was the norm under the SPA. The SPA provided, however, for an oral committal hearing to take place in certain circumstances. Such a hearing was triggered by a party applying for an oral evidence order and the District Court making such an order.
[61] Applying Part 5 of the SPA in the extradition context is, unfortunately, somewhat challenging. That is because the relevant provisions, including in particular those relating to oral evidence orders, do not neatly interface with the Extradition Act in cases where the ROC procedure is used. Where the ROC procedure is used, the filing of the ROC itself triggers an oral committal hearing. It is therefore not necessary to apply for an oral evidence order to trigger a hearing.
[62] The Court of Appeal held in Dotcom, however, that although oral evidence orders are not necessary to trigger a hearing in an extradition context, they nevertheless perform a useful role in enabling the extradition court to control the extent of any oral evidence at a committal hearing:43
[99] Section 22(1)(a) [of the Extradition Act] directs that there be a hearing of the nature of a committal hearing. An extradition court must, therefore, consider the evidence. It might be thought that this direction renders oral evidence orders redundant in the extradition context given that they are the trigger for committal hearings in domestic criminal proceedings. Moreover, extradition hearings where the record of the case procedure is used are essentially “on the papers” processes at least as far as the requesting state is concerned.
43 United States of America v Dotcom, above n 21.
[100] However, the procedure at committal hearings is dealt with in s 184 and following of the Summary Proceedings Act. Section 184A(1)(b) requires that at a committal hearing the prosecution call “each prosecution witness who is to give oral evidence under an oral evidence order” and s
184A(2)(b) contains a similar provision in relation to the defence. Section
184B provides that the court must not hear oral evidence from the defendant or a witness unless an oral evidence order has been made in respect of him or
her. There does not appear to be any reason why this procedure should not apply in the extradition context. Ultimately, it provides a mechanism for the
extradition court to control the extent of any oral evidence, so as to ensure relevance and the like. In this respect, we agree with Winkelmann J.
(footnotes omitted)
[63] Oral evidence orders under the SPA accordingly had two functions in the domestic criminal context. First, the granting of an application for an oral evidence order triggered the requirement for a committal hearing. Second, the making of such orders defined the scope of the evidence to be heard at such a hearing. Only the second function is relevant in the extradition context. The provisions of the SPA have to be applied in such a way as to reflect that reality.
[64] Before deciding what modifications to the SPA are necessary in the present context, it is helpful to first consider how the relevant provisions would likely have operated in a domestic criminal context, in circumstances where the defence wished to both challenge prosecution evidence and also call its own evidence at the committal hearing. That provides the necessary benchmark against which any “necessary modifications” can be assessed.
[65] In my view, the most likely procedure adopted in such circumstances would have been as follows:
(a) Section 168: Prosecutor files formal written statements within
42 days of defendant’s election or, if the information is laid indictably, his or her first court appearance.
(b)Section 178(2): Within 14 days of the prosecution witness statements being provided, defence applies to the District Court for an oral evidence order in respect of one or more of the prosecution witnesses (this can include a person who has not provided a formal witness
statement, such as a hostile witness if it is intended that that person give evidence).44
(c) Section 180: Judge determines oral evidence order application:
(i)Section 180(1)(a): If the witness has provided a formal written statement the Judge must be satisfied either that it is necessary to hear the witness in order to determine whether there is sufficient evidence to commit the defendant for trial, or that it is otherwise in the interests of justice to hear the witness; or
(ii)Section 180(1)(b): If the person has not provided a formal written statement (for example, because they are hostile) the Judge must be satisfied that the anticipated evidence of that person is relevant to the charge specified in the information and either:
(1) the person has failed or refused to give a formal written statement; or
(2) that is it otherwise in the interests of justice to hear the witness.
(iii)Section 180(3): The Judge must determine the oral evidence order application on the basis of the witness’s formal written statement (if any), any other written evidence, and any written and oral submissions.
(d)Section 183: If an application for an oral evidence order is granted, then a committal hearing is triggered.
44 I note that in some, relatively rare, cases the prosecution may wish to trigger an oral committal hearing by seeking an oral evidence order in relation to one of its own witnesses. Section 178(2) provides for this possibility.
(e) Section 176: The defendant then has 14 days to disclose to the prosecutor any evidence he or she intends to rely on at the committal hearing.
(f) Section 178(3): Either party can then apply (with leave) to the District Court for an oral evidence order. In the domestic criminal context an oral evidence order in relation to any defence evidence that has been disclosed would most likely be made at this stage. The application would then be determined in accordance with s 180 (as outlined at (c) above).
(g) Section 184A: Committal hearing:
(i)With leave, the prosecutor provides to the court any formal written statements or exhibits not previously filed under s 168, then calls each prosecution witness who is to give evidence under an oral evidence order, following which they are cross-examined and re-examined;
(ii)If the defendant intends to provide evidence, the defendant must provide to the court any formal written statements or exhibits not already provided, then call each defence witness who is to give evidence under an oral evidence order, following which they are cross-examined and re-examined.
[66] The plaintiffs took a different view of the likely process and submitted that the SPA required an application for an oral evidence order in relation to a defence witness to be determined before that witness is required to provide his or her brief of evidence pursuant to s 176. That submission was predicated on the assumption that under the SPA it is mandatory for both parties to apply for oral evidence orders under s 178(2) within 14 days of the filing of the prosecution witness statements. Such a submission overlooks, however, the Court’s discretion under s 178(3) to consider an application for oral evidence orders at other appropriate times. In relation to defence witnesses that would usually be after the defence has disclosed to the prosecutor any
evidence he or she intends to rely on at the committal hearing. In my view the procedure advocated by the plaintiffs (provision of defence evidence only after an oral evidence order in respect of the relevant defence witness had been made) is both cumbersome and contrary to common sense.
[67] Appropriate regard must be had to the fact that where the ROC procedure is used in the extradition context, the filing of the ROC effectively takes the place of the steps I have outlined at [65](a) to [65](g) above. It is the filing of the ROC, not the obtaining of oral evidence orders, that triggers an extradition hearing. As the Court of Appeal observed in Dotcom, extradition hearings where the ROC procedure is used are essentially “on the papers” processes, at least as far as the requesting state
is concerned.45 It is not possible to seek an oral evidence order in respect of the
ROC, but the filing of the ROC in itself triggers an oral extradition hearing.
[68] The plaintiffs relied heavily on s 176 of the SPA, which provides that:
176 Defendant must disclose evidence to be provided at committal hearing
(1) If an oral evidence order is made under section 180 or 181, the defendant must, no later than 14 days after the date on which that order is made, disclose to the prosecutor any evidence that the defendant intends to provide to the court at the committal hearing.
(2) Sections 10 and 11 of the Criminal Disclosure Act 2008 apply to the disclosure of evidence under this section.
[69] Given, however, that oral evidence orders were required under the SPA to trigger a committal hearing, what s 176 is essentially saying is that if a committal hearing has been triggered by the making of an oral evidence order, then the defendant must disclose to the prosecutor any evidence he or she intends to rely on at the hearing within 14 days. In the present context, however, it is not the making of an oral evidence order that triggers a hearing, but the filing of the ROC. Accordingly, to make sense of s 176 in the present context the words “if an oral evidence order is made under s 180 or s 181” should arguably be replaced with the
words “if the requesting state files a ROC”.
45 United States of America v Dotcom, above n 21, at [108].
[70] It makes sense for the filing of the ROC to be the trigger for the obligation on the defence to disclose the evidence on which it seeks to rely at the committal hearing. Following the filing of such material the evidence of both parties will normally be complete. That would then be the appropriate time to consider any oral evidence order applications, which can be made at that stage under s 178(3).
[71] On this analysis, the defence evidence should have been filed within 14 days of the filing of the ROC, or within such further period as the Judge permitted. Any oral evidence applications could be made pursuant to s 178(3) either contemporaneously with that evidence or subsequently. It necessarily follows that the Judge did not err in requiring the plaintiffs to provide briefs of proposed evidence at the same time as any oral evidence order applications in respect of that evidence. That was clearly an efficient course in the circumstances and was consistent with both the letter and the spirit of Part 5 of the SPA, as necessarily modified in the extradition context.
[72] This conclusion is further supported by an analysis of s 180 (entitled “Determination of application for oral evidence order”) which makes it clear that applications for oral evidence orders should ordinarily be accompanied by a “formal written statement,” as defined in s 162. In some cases that may not be possible (for example where a witness is hostile) and s 180 makes provision for that scenario. In the normal case, however, it is clear that s 180 envisages the provision of formal witness statements prior to the hearing of an application for an oral evidence order.
Did the Judge err by failing to require that any oral evidence order applications be determined prior to the extradition hearing?
[73] The plaintiffs submitted that the Judge erred in law by failing to require that any oral evidence order applications be determined prior to the filing of submissions for the extradition hearing. The plaintiffs submitted that such a course is contrary to Part 5 of the SPA, as s 180(4) provides for the plaintiffs to have the right to make oral submissions in support of their oral evidence order application(s), but the timetable does not include a date for a hearing at which those submissions can be made. There is therefore the likelihood, on the current timetable, that the parties will
be required to file and serve their substantive extradition submissions without knowing what evidence will be admissible at the hearing.
[74] The United States submitted that the SPA does not require any oral evidence order applications to be determined in advance of the extradition hearing. It was open to the Judge to conclude that the most appropriate course was to deal with the applications at the outset of the eligibility hearing in June 2015.
[75] In my view the Judge did not make an error of law by failing to require that the oral evidence order applications be determined prior to the extradition hearing. The timing of the determination of any applications is, in my view, a matter within the Judge’s discretion. Although the SPA envisages that oral evidence order applications will be determined in advance of a committal hearing, that is simply because, in the committal context, such a hearing will only be triggered if an oral evidence order application is granted. It is therefore not possible for them to be determined at the hearing itself. In the extradition context, however, the oral evidence order applications play no role in triggering a hearing. Their sole role is to determine the scope of the evidence to be called at that hearing.
[76] The present situation is accordingly no different to a criminal or civil trial, where issues of admissibility of evidence are sometimes determined in advance of trial and sometimes deferred to the trial itself, for determination by the trial Judge. Indeed it is not unusual for disputed evidence to be admitted by the trial Judge on a provisional basis, with issues of relevance and admissibility being determined by the Judge during the course of writing his or her judgment. What is appropriate will vary from case to case.
[77] The Crown submitted that, in this case, the most efficient course would be for the oral evidence order applications to be determined at the extradition hearing itself, because evidence from the plaintiffs must be capable of destroying the presumed reliability of some material portion of the ROC. Their applications will need to be accompanied by an explanation of how the evidence may accomplish that. It therefore makes sense for the question of oral evidence orders to be considered in the broader context of the submissions that will be made by the plaintiffs at the
extradition hearing. The two issues are inextricably linked and will be most efficiently dealt with together.
[78] In my view the Judge did not err in failing to require that the oral evidence applications be heard and determined prior to the extradition hearing. The question of whether the plaintiffs’ evidence is relevant to the eligibility test (and therefore admissible) and the ultimate issue of whether the plaintiffs are eligible for extradition may well merge into the same inquiry. Ultimately, however, whether that is so is a matter for the extradition Judge to decide. It is open to either party, after the plaintiffs’ evidence has been filed, to raise the matter with the Judge for further direction, in light of the actual evidence that has been filed.
Did the Judge err by allowing the United States to adduce evidence in reply?
[79] The timetable I have set out at [19] above provides for the United States to adduce evidence in reply by way of a supplementary ROC. The plaintiffs submitted that this constitutes an error of law, as the procedure for the committal hearing set out in Part 5 of the SPA demonstrates that the intent of Part 5 of the SPA is that the prosecution complete its case before the defendant gives evidence. No reference is made to the prosecution having a right of reply.
[80] Again, it is my view the Judge did not make an error of law by making provision for reply evidence. This was a matter within the discretion of the Judge.
[81] In a domestic criminal context any committal hearing would most likely have been triggered by the making of an oral evidence order in relation to one or more prosecution witnesses. In such circumstances the defence would have been required to disclose any evidence it wished to call, prior to the committal hearing. The prosecutor would therefore normally have been able to adduce evidence from the relevant prosecution witnesses in reply to that evidence during the course of oral questioning. Further, under s 184A there is express provision for the prosecutor to adduce further witness statements or exhibits at the outset of the committal hearing, with leave of the court. It is therefore clear that where the interests of justice require it, the prosecution would have been able to provide reply evidence in the domestic criminal context.
[82] In the extradition context, however, it would not be appropriate to defer the provision of any prosecution reply evidence to the outset of the hearing, as s 184A envisages. It is clearly in the interests of justice that any reply evidence is served in advance of the hearing. The Judge’s direction achieves this objective.
Did the Judge err in allowing the United States to file supplementary ROCs?
[83] Section 25 of the Extradition Act provides that, for the purposes of an extradition hearing under s 24 of that Act, a ROC may be submitted by or on behalf of an exempted country. In terms of timing, s 168 of the SPA prescribes a default period for filing written statements (and arguably therefore the ROC) within 42 days of a first appearance. The Treaty, however, requires a request for surrender
(including supporting documents) to be made within 45 days of provisional arrest.46
[84] The plaintiffs were first brought before the court on 20 January 2012. The 42 day period expired on 2 March 2015 and the 45 day period expired on 5 March 2015. The initial ROC appears to have been filed and served at about this time.47
Supplements to the ROC were subsequently filed and served on 3 July 2013,
18 October 2013, 13 March 2013 (two supplements), 9 October 2014 and
19 February 2015. The sixth supplemental ROC was filed on 20 February 2015. It is a relatively brief document containing material not previously available to the United States. In particular, following the adjournment in November 2014, Mr Nomm, an alleged co-conspirator, voluntarily surrendered to United States authorities and agreed to provide evidence.
[85] The plaintiffs submitted that the Judge erred in law by fixing a timetable that “did not allow for a crucial step”, namely the determination of the admissibility and status of the six supplemental ROCs. The plaintiffs’ position appears to be that neither the Extradition Act nor the SPA expressly authorise additions and alterations
to the initial ROC and that the absence of express words permitting supplements
46 Treaty on Extradition between New Zealand and the United States of America, United States of
America – New Zealand [1970] NZTS 7 (signed 12 January 1970, entered into force
8 December 1970) at Article XI.
47 It appears that the ROC and all six supplemental ROCs were initially filed in Court
“informally”. Original certified documents were not formally filed until early 2015.
indicates a parliamentary intention to prohibit evidence from the requesting state beyond that contained in the initial ROC. The requesting state, in effect, has “one shot” to get it right.
[86] Further, in the event the supplemental ROCs are permissible, the plaintiffs submitted that leave is required to file them after the 42 day period provided for in s 168 for the filing of prosecution witness statements. The United States failed to apply for leave. Accordingly it is now necessary to have a hearing, prior to the extradition hearing, at which the admissibility and status of the supplemental ROCs can be argued and determined (potentially generating further judicial review proceedings or appeals).
[87] I do not accept that the Judge erred in law in failing to schedule a hearing at which the admissibility and status of the supplemental ROCs could be heard and determined. The fundamental purpose of the ROC procedure is to enable certain trusted countries to provide their evidence in a more convenient form than traditional depositions. The implication of the one shot theory is contrary to this purpose of assisting a friendly country. Further, the one shot theory is inconsistent with s
25(4)(b) of the Extradition Act, which provides that nothing in s 25 limits the evidence that may be admitted at any hearing to determine whether the defendant is eligible for surrender.
[88] I also note that in the only previous New Zealand case where the ROC procedure was used, a supplement was filed without objection.48 Supplementary evidence has been permitted in other, non-ROC extraditions under Part 3.49
[89] Part 5 of the SPA clearly allows for considerable flexibility in the provision of evidence. Section 168(1)(b) allows evidence to be filed at such later date (than 42 days) as “specified” by the Judge (there is no mention of any leave requirement). In addition s 168(2) provides that the prosecutor may file a written statement later than 42 days “with the leave of a District Court Judge”
although the inter-relationship of s 168(1)(b) and s 168(2) is not entirely clear.
48 United States of America v Jiang [2012] DCR 724.
49 Poland v Bujak DC Christchurch CRI-2005-009-1703, 15 August 2006, at [27]–[31].
Further, s 184A envisages the prospect of prosecution evidence being provided as late as the outset of the committal hearing. Applying these provisions, with necessary modifications, to the extradition context, it is clear that the procedure for giving notice of the evidential case against the persons sought is ultimately under the control of the extradition Judge.
[90] This conclusion is consistent, in my view, with a number of observations made by the Supreme Court in their decision on foreign disclosure requirement.50
In particular:
(a) McGrath and Blanchard JJ contemplated that a ROC could be supplemented. This was one way in which a requesting state might respond to any suggestion that it had failed in its “duty of candour”.51
(b)William Young J observed that evidence can be the subject of judicial direction.52 The same applied to the provision of requested particulars and His Honour apparently saw the ROC as being the format in which those could be provided.53 The key thing was that evidence was provided in a way that did not prejudice the person sought through insufficient notice.
[91] Ultimately the court must have the ability to ensure that the persons sought are fairly advised of the requesting country’s case. Provided that essential condition is observed, it is appropriate for the extradition judge to make timetable orders from time to time (as Judge Dawson did, without objection) regarding the provision of
supplementary evidence.54 In cases such as this, where there has been a very lengthy
delay in the period between arrest and extradition hearing, there will likely be a need for significant updating evidence. Indeed, the failure to provide such evidence
50 Dotcom v United States of America, above n 1.
51 Dotcom v United States of America, above n 1, at [152], especially in the context of the passages at [148]-[152] and [170]-[180].
52 At [235].
53 At [234]–[235].
54 The first supplementary ROC was served on the plaintiffs on 3 July 2013 and no issue was taken with its admissibility at that time. It was before the High Court, Court of Appeal and Supreme Court in the foreign disclosure proceedings. No concerns were expressed in any of those Courts regarding its admissibility.
may well breach the requesting State’s duty of candour. I accept Ms Gordon’s submission that it cannot be consistent with the interests of justice, or New Zealand’s international obligations, to hold that the assessment of eligibility for extradition must proceed in some blinkered manner, with such evidence excluded from the court’s consideration.
Did the Judge err by allowing the United States to adduce evidence regarding the plaintiffs’ abuse of process application by way of a supplemental ROC?
[92] On 30 October 2014 the plaintiffs filed an abuse of process application, seeking to stay the extradition proceedings on the basis of an alleged abuse of process by the United States and New Zealand authorities.
[93] That application was not supported by any affidavit evidence, as would normally be the case. The plaintiffs say that that is because they “needed to investigate the extent to which illegal conduct by the New Zealand and United States governments has been used to the second defendant’s advantage in a manner that could be said to taint the extradition process”. The plaintiffs give, as examples of the illegal conduct at issue, the unlawful interception of their communications by the GCSB and the unlawful removal, by the FBI, of computer clones to the Unites States.
[94] The plaintiffs submitted that their abuse of process application is a standard interlocutory application which should be dealt with in the normal manner. Both parties should provide their evidence by way of affidavit. The plaintiffs relied on particular on s 25(1) of the Extradition Act, which provides that:
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.
(Emphasis added)
[95] The plaintiffs submitted that ss 24 and 25, read in combination, clearly limit the use of evidence in ROC form to the issue of whether there is sufficient evidence
to justify committal for trial in New Zealand. They relied in particular on the
Canadian case of United States of America v Tollman, in which it is stated that:55
Sections 32 and 33 of the Extradition Act permit the filing of a Record of the Case in unsworn form ‘summarizing the evidence available to the extradition partner for use in the prosecution.’ Evidence seeking to rebut allegations of misconduct or abuse of process, which has nothing to do with the merits of the case against the person sought, is not evidence ‘for use in the prosecution’. It is completely irrelevant to the prosecution of the person sought for the crimes alleged. It follows, in my view, that it is not open to the requesting state, in response to allegations of abuse of process, to file responding material in the form of a ROC setting out evidence that is relevant only to the abuse of process allegation and not to the charges against the person sought.
[96] The plaintiffs submitted that the Canadian statutory wording “for use in the prosecution”56 is broadly analogous to New Zealand requirement that the case only be used for the purposes of a determination under s 24(2)(d)(i) (namely, establishing whether there is a prima facie case).
[97] The United States made three general submissions in response:
(a) The issue is academic at this stage, as it is not clear what the nature of the abuse of argument will be, or even whether it will ever materialise.
(b)In particular, various attempts to date to implicate the United States in some kind of misconduct have failed.57 There is at present no reason to think that there will be anything to suggest improper conduct by the requesting state, which might in any way require its response.
(c) So far as the abuse argument is based on evidential criticisms, it may well be appropriate to respond by way of a supplemental ROC.
[98] The United States further submitted that the basis for the abuse of process is not adequately articulated or explained in the plaintiffs’ submissions. Rather, the
plaintiffs simply assert that:
55 United States of America v Tollman [2006] OJ No 5588; 2006 CarwellOnt 6831 (SCJ) at [35].
56 Extradition Act SC 1999 c 18, s 33(1)
57 See United States of America v Dotcom [2014] DCR 345; Dotcom v United States of America
[2014] NZHC 2550.
A key aspect… will be… to establish that certain evidence to be used against them has been tainted by the conduct of the [United States] and the New Zealand authorities…
[99] The United States expressed concern that what the relevant evidence is, and why it is “tainted”, is not explained. It is not satisfactory for the point to be raised on judicial review in such a nebulous way, with no clear evidence as to what evidence in the ROC (or supplemental ROCs) is to be attacked. The United States also noted that the plaintiffs have previously suggested that it has in some manner failed in its
‘duty of candour’. If so, this is an evidential criticism. Any failure to meet the duty of candour, which may well be an abuse of process, clearly can (and should) be dealt with by way of a supplement to the ROC.58
[100] The United States further submitted that a ROC may be submitted for “the purposes of any determination under section 24(2)(d)(i).59 The court is not confined to only one kind of determination, for instance whether the evidence is sufficient to make out a prima facie case. Section 24 provides in part:
(2)… the person is eligible for surrender… if
(d) the court is satisfied that the evidence produced or given at the hearing would, according to the law of New Zealand, but subject to this Act, -
(i) … justify the person’s trial if the conduct constituting the offence had
occurred within the jurisdiction of New Zealand…
[101] With due allowance for the extradition context, the broad question for the court is whether the person sought should face trial. That determination will be based on all “the evidence produced or given at the hearing”. The United States submitted that this phrase must comprehend evidence concerning stay of the extradition for abuse of process. The trial of the person sought cannot be “justified” if the evidence produced at the hearing is tainted on abuse of process grounds, notwithstanding that the evidence of the “conduct constituting the offence” would otherwise have been deemed sufficient.
[102] Finally, the United States noted that, in a similar legislative setting, Canadian courts may conduct a “blended hearing”, in which a stay application and
58 Dotcom v United States of America, above n 1, at [152] per McGrath and Blanchard JJ.
59 Extradition Act 1999, s 25(1).
sufficiency of evidence are considered at the same time.60 Ms Gordon submitted that this Court should not follow Tollman, as more recent Canadian authority confirms that abuse of process allegations may be responded to by a supplement to the ROC.61
[103] The issue is a difficult one. I have concluded that an assessment of whether it is appropriate for the United States to respond to evidence regarding an alleged abuse of process by way of a supplementary ROC cannot be made in the abstract. It is necessary to answer the question with reference to the actual evidence that is being replied to.
[104] In some circumstances, filing reply evidence by way of ROC may not be appropriate, for the reasons outlined in Tollman. In other cases, the relevant evidence may be so inextricably linked with evidence relating to eligibility issues that the ROC procedure would be appropriate. Indeed, in such a case any requirement for affidavit evidence could fundamentally undermine the entire purpose of the ROC process. Further, if the core allegation is a breach of the duty of candour then it may well be appropriate for any response to be by way of provision of a supplemental ROC.
[105] Ultimately the issue is likely to depend on the precise nature of the abuse alleged, and how it is said to have impacted on the evidence before the Court, as contained in the ROC. Sections 24 and 25 of the Extradition Act do not permit only one correct answer, regardless of circumstance.
Are the challenged decisions amenable to judicial review?
[106] Although I have addressed each of the alleged “errors of law” raised by the plaintiffs, given that they were fully argued before me, I have not overlooked Ms Gordon’s submission that none of the alleged errors of law identified by the
plaintiffs are amenable to judicial review.
60 See for example Unites States of America v Wilson 2013 BCSC 2423; [2013] BCJ No 2873 at 10; United States of America v Khadr 2011 ONCA 358; 106 OR (3d) 449 at [20].
61 United States of America v Wilson, above n 60 at [81].
[107] Several of the alleged errors could potentially fall within the category of decisions that are “simply procedural or administrative and will therefore not affect rights or privileges so as to amount to the exercise of a ‘statutory power of decision’ within the Judicature Amendment Act 1972”.62 Overall, though, I see the issue as one of discretion, rather than jurisdiction. I note that it is overwhelmingly clear from the case law that the power to review procedural decisions of inferior courts exercising their criminal jurisdiction is to be sparingly exercised.63 This court will generally not recognise a right of review from interlocutory decisions when these can be dealt with by post-trial appeal.64
[108] The extradition process mirrors (with any necessary modifications) the previous committal process under the SPA in respect of indictable offences. Higher courts may intervene in committal proceedings, but will do so in a restrained manner.65 British case law has similarly held that committal proceedings should only be judicially reviewed in cases of “really substantial error leading to demonstrable injustice”.66 Exceptional circumstances will be needed before the court will intervene where it is claimed that committal proceedings have been wrongly continued by errors of law, procedure or evidence.67 This approach reflects in part that, at the committal stage, a person is not at risk of conviction. Rather, committal is an initial screening process aimed at establishing if there is sufficient evidence to proceed to trial.
[109] There are strong policy reasons weighing against constant disruption of pre-trial processes by applications to a higher court and then, potentially, further appeals from that decision. Micro-management of pre-trial procedure by higher
courts risks delaying and fragmenting the criminal process. Policy factors militate
62 Kersten v Stack (1992) 6 PRNZ 300 at 307.
63 Auckland District Court v Attorney-General [1993] 2 NZLR 129 (CA) which set out the general
proposition that the decisions of the District Court in criminal procedure were reviewable, stated that on the facts in relation to reviews of the s 347 procedure, the jurisdiction to review should be sparing and rare at 351.
64 URS New Zealand Ltd v District Court at Auckland [2009] NZRMA 529 (HC) at [22]–[33].
Gill v Attorney-General [2010] NZCA 468, at [16]–[29].
65 C v Wellington District Court [1995] 2 NZLR 395 (CA).
66 Neill v North Antrim Magistrates Court [1992] 1 WLR 1220.
67 Graham Taylor Judicial Review: A New Zealand Perspective (LexisNexis, Wellington, 2014)
at 59.
toward only allowing review (or only granting relief) if the error is blatant, or will potentially lead to serious injustice that cannot be corrected on appeal.
[110] An example falling within that category is the judicial review proceedings brought by the United States regarding the appropriate scope of disclosure by the requesting state, an issue that was ultimately determined by the Supreme Court. There is nothing of that nature here, however. Almost all the errors of law raised by the plaintiffs fall into the category of requests to this Court to micro-manage procedural aspects of the extradition process adopted by the extradition Judge.
Summary and conclusion
[111] An application to adjourn the plaintiffs’ extradition hearing (currently scheduled for 2 June 2015) was declined in the District Court at Auckland on
20 March 2015.68 The plaintiffs now seek to judicially review that decision. They
say that it is simply not possible for them to be ready to proceed with an extradition hearing on 2 June 2015 because:
(a) they have not been given full and proper notice of the case against them;
(b)they and their lawyers have been unable to properly prepare for the hearing due to recent changes in legal representation and insufficient funding; and
(c) the District Court Judge committed a number of errors of law by making timetable directions that were inconsistent with the statutory regime which governs the extradition process.
[112] I have found that the plaintiffs have been given proper notice of the case against them, for the reasons I outline at [10] to [18] above. Further, the plaintiffs have failed to establish that the District Court Judge made any of the errors of law
they allege, for the reasons I outline at [59] to [105] above.
68 United States of America v Dotcom, above n 3.
[113] The plaintiffs have succeeded in establishing, however, that there is a real prospect that they will be unable to properly meet the case against them by 2 June
2015, due to issues of representation and funding. A person’s right to have a reasonable opportunity to present their case is a key requirement of nature justice. The Supreme Court has held that high standards of fairness are required by natural justice in an extradition context, because of the profound implications for the lives of those affected.69
[114] I have found that Mr Dotcom is unable to properly prepare for an extradition hearing on 2 June 2015 for the reasons outlined at [22] to [35] above. In summary, his former legal team were given leave to withdraw on 17 November 2014. His new legal team accepted instructions to act in this matter in mid December 2014, subject to suitable funding arrangements being put in place. That required an application to this Court to release funds from restraint. That application was opposed. Interim funds were, however, released to Mr Dotcom on 12 March 2015 and further funds (sufficient to fully fund his defence of the extradition proceedings) were released from restraint on 18 April 2015. Unfortunately, 12 March 2015 was shortly before Mr Dotcom’s evidence in opposition to the extradition hearing was due to be filed. Mr Dotcom had insufficient funding prior to that date to engage the various witnesses he intends to call at the hearing (including at least two overseas experts).
[115] Mr Batato is unable to properly prepare for an extradition hearing on 2 June
2015 for the reasons outlined at [36] to [45] above. In summary, following the withdrawal of his former legal advisers he applied for legal aid. While awaiting that decision, the date for filing evidence in opposition to the extradition application has passed. He has now been informed (on 21 April 2015) that his legal aid application has been refused. He will accordingly now have to represent himself at the extradition hearing. The hearing is one month away.
[116] With additional time to prepare, however, there is no reason to believe that it will not be possible for Mr Batato to adequately represent himself at the extradition
hearing. Mr Batato will be able to derive significant benefit from the work
69 See comments of Elias J in Ali v Deportation Review Tribunal [1997] NZAR 208 (HC) at 220, cited with approval in Dotcom v United States of America, above n 1, at [118] per McGrath J.
undertaken by his former legal team prior to their withdrawal. He will also derive significant benefit from the fact that the other three plaintiffs are legally represented and the plaintiffs are taking a collaborative approach to extradition issues.
[117] The issue as to whether Messrs Ortmann and van der Kolk can sufficiently prepare for an extradition hearing on 2 June 2015 is much more finely balanced, as I have set out at [46] to [53] above. I have ultimately concluded, however, that Messrs Ortmann and van der Kolk’s preparation for the extradition hearing has been impacted by Mr Dotcom’s funding issues, given the collaborative approach taken by the plaintiffs to date. In particular, this has caused particular difficulties in relation to preparation of evidence for the hearing.
[118] I have therefore concluded, with some reluctance (given the time that has elapsed since the plaintiffs were first brought before the Courts) that the interests of natural justice require an adjournment of the 2 June 2015 extradition hearing date. This should not be taken by the plaintiffs, however, as a signal that any ongoing funding or representation difficulties (if they arise) would be likely to justify further adjournments. On the contrary, the plaintiffs must take full responsibility for preparing for their extradition hearing on whatever new date is allocated, with whatever level of legal support they are able to secure. For the reasons I have outlined in relation to Mr Batato, even if all of the plaintiffs were to be self- represented, it would not automatically follow that the requirements of natural justice could not be met at a future hearing.
Result
[119] The plaintiffs’ application for judicial review of the District Court decision dated 20 March 2015 is granted, in part. The decision not to adjourn the extradition hearing date of 2 June 2015 is quashed. The matter is remitted to the District Court to set a new extradition hearing date, not earlier than 1 September 2015, and to make associated timetable orders.
[120] I note that each party has had some measure of success, and also some measure of failure. In particular, although the plaintiffs ultimately succeeded in obtaining the adjournment they sought, they failed to establish that the Judge had
erred in law in any of the numerous ways alleged. The plaintiffs also failed to establish that the United States had failed to give them reasonable notice of the case against them.
[121] It may accordingly be appropriate for costs to lie where they fall. As I have not heard argument on costs issues, however, costs are reserved. If they cannot be resolved between counsel then any memorandum from the plaintiffs is to be filed by
15 May 2015, with any response from the United States to be filed by 29 May 2015.
Katz J
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