Ortmann v United States of America
[2017] NZHC 1809
•2 August 2017
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2015-404-000429 [2017] NZHC 1809
UNDER Extradition Act 1999 IN THE MATTER
of an application on questions of law by way of case stated under s 68 of the Extradition Act 1999
BETWEEN
MATHIAS ORTMANN First Appellant
KIM DOTCOM Second Appellant
BRAM VAN DER KOLK Third Appellant
FINN BATATO Fourth Appellant
AND
THE UNITED STATES OF AMERICA Respondent
Hearing: 12 May 2017 Appearances:
G Illingworth QC, P J K Spring and A K Hyde for First and
Third Appellants
R M Mansfield and S L Cogan for Second Appellant
J Bioletti for Fourth Appellant
K Raftery QC and F Sinclair for RespondentJudgment:
2 August 2017
JUDGMENT OF GILBERT J
This judgment is delivered by me on 2 August 2017 at 3.00 pm pursuant to r 11.5 of the High Court Rules.
..................................................... Registrar / Deputy Registrar
ORTMANN & ORS v THE UNITED STATES OF AMERICA [2017] NZHC 1809 [2 August 2017]
Introduction
[1] All parties seek leave to appeal to the Court of Appeal against a judgment I delivered on 20 February 2017.1 Leave is required because this would be a second appeal.
[2] I dismissed appeals against a decision of the District Court finding the appellants eligible for extradition to the United States to face 13 charges arising out of their involvement with a company called Megaupload Ltd.2 The charges include conspiracy to commit copyright infringement, money laundering, racketeering and wire fraud. I also dismissed the appellants’ appeals from the District Court’s decision declining their applications for a permanent stay of the extradition proceedings.
[3] The appeals from the District Court were brought by way of case stated under s 68 of the Extradition Act 1999 and raised over 300 questions of law. Although I upheld the District Court’s determination of the stay and extradition applications, my reasoning differed in a number of material respects and I therefore answered many of these questions differently from the District Court. For example, contrary to the District Court’s conclusion, I accepted the appellants’ submission that the United States could not rely on any of the offences in s 131 of the Copyright Act
1994 as an available extradition pathway for one of the principal charges, conspiracy to commit copyright infringement (count 2).3 However, contrary to the appellants’ submissions and in agreement with the District Court, I found that the United States was able to rely on a specific provision in the Treaty on Extradition between New Zealand and the United States of America and on provisions in the Crimes Act
1961 as founding alternative extradition pathways for this charge.4
[4] This is why, even though the United States succeeded overall, it also seeks leave to appeal against those aspects of my judgment that were decided against it.
Using the example given above, the United States does not want to be exposed to a
1 Ortmann v United States of America [2017] NZHC 189 [First appeal].
2 Ortmann v United States of America DC North Shore CRI-2012-092-1647, 23 December 2015.
3 First appeal, above n 1, at [169]–[192].
4 See [77]–[133] interpreting art II.16 of sch 1 to the Extradition (United States of America) Order
1970; and [134]–[168] interpreting ss 228 and 249 of the Crimes Act 1961.
finding in the Court of Appeal that I was wrong to determine that extradition pathways were available outside the Copyright Act for count 2, but unable to argue that I was wrong to find that s 131 of the Copyright Act does not provide an alternative extradition pathway.
[5] The appellants seek to raise approximately 130 questions of law on appeal to the Court of Appeal.5 These questions are tailored to my reasoning in the first appeal and replace the more than 300 questions stated by the District Court. The proposed questions all concern issues that were raised in the District Court but a number of them were not addressed in the District Court judgment because of the approach taken in that Court.
[6] The United States originally formulated two questions in its leave application covering the issues it wishes to raise on appeal. However, after filing its application, it became concerned that there may be no jurisdiction for the Court of Appeal to consider any question that was not specifically included in the case-stated appeal from the District Court. To guard against this risk, the United States amended its application and now seeks leave to appeal on 69 questions (in the same terms formulated by the District Court) in place of the two questions for which it originally sought leave.
[7] There is no contest that the proposed appeals raise some questions of general or public importance that ought to be submitted to the Court of Appeal for its consideration.6 The disputed leave issues are whether leave can be granted to the United States to appeal to the Court of Appeal given that it succeeded overall in the High Court and whether the questions that can be submitted to the Court of Appeal can deviate from those stated by the District Court.
[8] The issues I must now determine are:
(a) Can leave to appeal be granted to the United States?
5 This number excludes the 80 questions on which leave to appeal is sought by Mr Batato because these are largely modelled on the questions proposed by Messrs Ortmann and van der Kolk.
6 Summary Proceedings Act 1957, s 144(2).
(b)Can the questions for which leave may be granted deviate from those stated by the District Court?
(c) Do the proposed questions meet the leave criteria?
Can leave to appeal be granted to the United States?
[9] These proceedings commenced in January 2012 and are accordingly governed by ss 68 and 69 of the Extradition Act. Those provisions were replaced by s 413 of the Criminal Procedure Act 2011 with effect from 1 July 2013 but s 397 of that Act provides that any proceeding not finally determined before the commencement date must continue in accordance with the law as it was before that date.
[10] At the relevant time s 69(1)(p) of the Extradition Act incorporated s 144 of the Summary Proceedings Act 1957. This provision continues to govern the present applications for leave to bring a second appeal and relevantly reads:
144 Appeal to the Court of Appeal
(1) Either party may, with the leave of the High Court, appeal to the Court of Appeal against any determination of the High Court on any case stated for the opinion of the High Court under section 107 of this Act or against any determination of the High Court on a question of law arising in any general appeal:
provided that, if the High Court refuses to grant leave to appeal to the Court of Appeal, the Court of Appeal may grant special leave to appeal.
(2) A party desiring to appeal to the Court of Appeal under this section shall, within 21 days after the determination of the High Court, or within such further time as that Court may allow, give notice of his application for leave to appeal in such manner as may be directed by the rules of that Court, and the High Court may grant leave accordingly if in the opinion of that Court the question of law involved in the appeal is one which, by reason of its general or public importance or for any other reason, ought to be submitted to the Court of Appeal for decision.
…
[11] The question as to whether the United States can be given leave to appeal
turns on the proper interpretation of the words “any determination of the High Court
on any case stated for the opinion of the High Court” in s 144. The appellants contend that the determination of the High Court was the decision to confirm the District Court judgment; in other words, to confirm that the appellants are eligible for extradition on each of the counts. The United States contends that the relevant determination also includes the High Court’s answers to the questions of law in the case stated by the District Court. For the reasons that follow, I consider that the appellants’ interpretation is correct.
[12] Section 68 of the Extradition Act provides for appeals to the High Court by way of case stated on questions of law against a determination of the District Court that a person is or is not eligible for surrender in relation to any offences for which surrender is sought:
68 Appeal on question of law only
(1) This section applies if the District Court determines under section 24 or 45 that a person is or is not eligible for surrender in relation to any offence or offences for which surrender is sought, and either party considers the determination erroneous in point of law.
(2) If this section applies, the party may appeal against the determination to the High Court on a question of law only.
…
[13] The “determination” in s 68 refers to the District Court’s determination of eligibility. The appeal to the High Court is against that determination and it would ordinarily be expected that any further appeal to the Court of Appeal would also be against the determination of eligibility. After all, it is the outcome that matters for appeal purposes, not the process of reasoning that led to it.
[14] This is supported by s 72(1) of the Extradition Act, which provides that the High Court hearing a case-stated appeal against an eligibility determination made by the District Court must exercise one or more of the stipulated powers in relation to that eligibility determination:
72 Powers of court on appeal
(1) The High Court must hear and determine the question or questions of law arising on any case transmitted to it, and do 1 or more of the following things:
(a) reverse, confirm, or amend the determination in respect of which the case has been stated:
(b) remit the determination to the District Court for reconsideration together with the opinion of the High Court on the determination:
(c) remit the determination to the District Court with a direction that the proceedings to determine whether the person is eligible for surrender be reheard:
(d) make any other order in relation to the determination that it thinks fit.
…
[15] The “determination in respect of which the case has been stated” in s 72(1)(a) is rendered in the short form from (b) to (d) but all refer to the District Court’s determination of eligibility. While the questions of law have to be answered, the High Court must then decide, in view of those answers, whether to “reverse, confirm or amend” the eligibility determination or “remit” it back to the District Court for reconsideration in the light of the High Court’s opinion, direction or any other order. The High Court must exercise one or more of these powers. I consider that the High Court’s “determination” for the purposes of any further appeal under s 144 of the Summary Proceedings Act refers to the outcome of the appeal — in this case, the decision to confirm the District Court’s determination of eligibility — not the answers to the specific questions. Those answers are merely steps in the reasoning process leading to the decision to confirm the District Court’s determination of eligibility on each count.
[16] This conclusion is reinforced by s 144B(a) of the Summary Proceedings Act, which gives the Court of Appeal “the same power to adjudicate on the proceeding that the High Court had”; and s 144B(b), which requires the Court of Appeal’s judgment to be entered in the High Court as if it had been given in that Court. The relevant “judgment” is not the answers to the particular questions, but rather the orders made in consequence regarding eligibility for extradition. Those orders are made in exercise of the powers the Court of Appeal has to adjudicate on the extradition proceeding.
[17] The appeal pathways are clear and logical. The right of appeal to the High Court under s 68 of the Extradition Act is against the District Court’s determination of eligibility. Any appeal to the Court of Appeal under s 144 of the Summary Proceedings Act is similarly against the determination of eligibility as reversed, confirmed or amended by the High Court in exercise of its powers under s 72 of the Extradition Act. The Court of Appeal in turn exercises the same power under s 72(1)(a) to reverse, confirm or amend the eligibility determination made by the High Court. The fact these appeals are restricted to questions of law cannot alter this logical progression.
[18] This analysis is supported by the Supreme Court’s decision in Colman v Police.7 Mr Colman was convicted in the District Court but the conviction was quashed on appeal to the High Court and replaced by an order that Mr Colman be discharged without conviction. A discharge without conviction is deemed to be an acquittal in terms of s 106(2) of the Sentencing Act 2002. Because no other adverse order was made against him, Mr Colman would have had no general right of appeal under s 115 of the Summary Proceedings Act if the order substituted by the High Court had been made by the District Court in the first place. Rights of appeal
under that section are conferred only on persons convicted of any information or complaint or against whom some other adverse order is made, such as an order for costs. The Supreme Court considered that it would be anomalous if ss 144 and 144A nevertheless provided for the possibility of an appeal to either the Court of Appeal or the Supreme Court:
[8] If the applicant had been discharged without conviction in the District Court and there had been no other relevant adverse decision, he would not have had a right of appeal to the High Court under s 115. Given that this is effectively what happened in the High Court, it would be rather odd if ss 144 and 144A provided him with the possibility of an appeal to either the Court of Appeal or this Court.
[9] … It follows that if there is a right of appeal in this case, there will likewise be a right of appeal to any person who was completely successful in the High Court (in terms of result) but claims that the High Court erroneously rejected an alternative argument as to why he or she should have won in that Court. Such a broad and free-standing right of appeal would conform neither to the approach generally taken in relation to the word “determination” where it appears in the Summary Proceedings Act nor to
7 Colman v Police [2010] NZSC 147, [2011] 2 NZLR 59.
general appellate principles under which rights of appeal relate to the orders
made by the courts and not to a judge’s intermediate reasoning steps.
[10] We are in no doubt that s 144A contemplates an appeal only in relation to determinations on questions of law which are material to a judgment which is, in its result, adverse to the proposed appellant. Accordingly, where that person was successful in the High Court in terms of result (as the applicant was), there is no right of further appeal.
(Footnotes omitted.)
[19] The Court of Appeal’s decision in the Department of Corrections v Hall similarly confirms that the determination against which an appeal may be brought pursuant to s 144 of the Summary Proceedings Act is the outcome of the appeal in the High Court, not its answers to the questions of law:8
[30] … In particular, we consider that the word “determination” in the context of the [Summary Proceedings Act] is generally taken to refer to the outcome of the court process in the form of a conviction, sentence or order. Secondly, despite the rather general terms of s 144(1), to interpret a determination as referring to the outcome is more consistent with the general appellate principle identified by the Supreme Court [in Colman], namely that rights of appeal generally relate to the orders of the court rather than the intermediate steps in the judge’s reasoning leading to those orders.
[20] The United States succeeded at first instance because the District Court determined that the appellants were all eligible for extradition to the United States on all counts. It again succeeded in the High Court because the District Court’s eligibility determination against all appellants on all counts was confirmed. The United States would not be seeking leave to appeal to the Court of Appeal if the appellants were content with the High Court judgment and were not seeking to appeal against it. In effect, the United States is seeking to support the judgment on other grounds in case the appellants succeed with any of the arguments they wish to raise on their appeal. However, the United States’ application for leave to appeal must be considered independently of the appellants’ application for leave. It would be anomalous and contrary to the scheme of the legislation if the United States, as the wholly successful party in both courts, could now pursue an appeal to the Court of Appeal. For these reasons, the United States’ application for leave to appeal to the
Court of Appeal must be declined.
8 Department of Corrections v Hall [2012] NZCA 309.
[21] In any event, I do not consider that the United States faces the exposure it is concerned about. If the Court of Appeal disagrees with my conclusion about the extradition pathways open for counts 2 and 4 to 8 (all relating to copyright infringement), it will then need to consider whether to reverse, confirm or amend my eligibility determination on these counts. This will require consideration of the two questions the United States initially sought leave to appeal on. These questions are whether I was also wrong to conclude that the other extradition pathways relied on by the United States were not open:
(a) Did I err in law in holding that the conduct alleged in counts 2 and 4 to 8 of the United States superseding indictment is not an offence under s 131 of the Copyright Act 1994?
(b)Did I err in law in holding that the conduct alleged in counts 4 to 8 of the United States superseding indictment is not an offence under art II.16 of the Treaty on Extradition between New Zealand and the United States of America 1970?
On the other hand, if the appellants do not succeed on their appeal, these questions will not need to be considered.
Can the questions on which leave may be granted deviate from those stated by the District Court?
[22] Consistent with its position on the first issue, the United States submits that the Court of Appeal can only determine the same questions of law that were stated by the District Court on appeal to the High Court because the Court of Appeal’s power to adjudicate on the proceedings is limited to that of the High Court. However, for the reasons already discussed, this is not how I read the Court of
Appeal’s powers under the Summary Proceedings Act:9
9 The United States relied on s 22(1) of the Interpretation Act 1999 to argue that s 144(4)–(5) of the Summary Proceedings Act continued to govern the powers of the Court of Appeal despite the repeal of those subsections from 1 January 2004 by s 47 of the Supreme Court Act 2003. It is clear that s 144B is the applicable provision, which contains no material difference.
144B Powers of Court of Appeal and Supreme Court on appeal
On an appeal under section 144 or section 144A to the Court of Appeal or the Supreme Court,—
(a) the court appealed to has the same power to adjudicate on the proceeding that the High Court had; and
(b) the same judgment must be entered in the High Court, and the same execution and other consequences and proceedings follow, as if the decision of the court appealed to had been given in the High Court.
[23] The “power to adjudicate on the proceeding” refers to the orders in the judgment, being the Court of Appeal’s orders under s 72(1) of the Extradition Act to reverse, confirm or amend the eligibility determination in the High Court. The Court of Appeal’s decision replaces the judgment in the High Court. While the answers to the questions of law for which leave to appeal is granted will guide the final determination of eligibility, those answers do not themselves “adjudicate on the proceeding” and are not sufficient to confirm or amend the eligibility judgment of the High Court. The Court of Appeal is clearly not exercising a “power” when answering questions of law; it exercises the relevant s 72 power when making the orders required in consequence of its answers to those questions. The Court of Appeal “adjudicates on the proceeding” by making those orders, thereby enabling judgment to be entered.
[24] Mr Raftery QC acknowledges that some modification to the questions stated by the District Court is permissible on further appeal to the Court of Appeal but he submits that any change must be minor and only for the purpose of clarifying the true issue in dispute. He places particular reliance on Chambers J’s decision in Dennis v Chief Executive of the Department of Work and Income in support of this contention.10 That case concerned an application for leave to appeal to the Court of Appeal from a decision of the High Court under s 12R of the Social Security Act
1964, which also incorporated s 144 of the Summary Proceedings Act. The appellants sought leave to appeal on three questions of law, two of which were
new in the sense that they raised new matters that had not been argued in the
10 Dennis v Chief Executive of the Department of Work and Income HC Auckland AP5-SW03(PL),
17 April 2003.
High Court. In declining leave for each of these questions, Chambers J made the following statements of general principle:
[15] The purpose of s 12R in providing for a possible further appeal to the Court of Appeal is not to enable counsel to raise new matter which in retrospect they wished they had argued in the High Court. Rather, its purpose is to permit the Court of Appeal to determine whether the High Court answers to the questions stated were correct — but only in cases where the questions of law are of sufficient general or public importance to justify a further appeal or there is other good reason. I accept that minor amendment to questions may be permissible in order better to clarify what the true issue in dispute has been. Amendment may be particularly necessary if the High Court has allowed the appeal or reached a decision for substantially different reasons from the tribunal. But that is not the case here.
[25] I do not consider that this decision supports the United States’ contention that the questions of law for which leave may be granted to bring a second appeal in the Court of Appeal must replicate those stated by the District Court for the High Court subject only to minor amendments. Clearly, as Chambers J held, it would be wrong and contrary to principle to allow an appellant to bring to the Court of Appeal an issue that had not been raised before the High Court and in retrospect they wish they had argued. That is not the case here. Every issue now sought to be raised in the Court of Appeal was fully argued and dealt with by this Court in addressing the
300-plus questions stated by the District Court. Unlike the position in Dennis, none of the proposed questions are new in this sense.
[26] As noted, my reasoning on many of the questions differed substantially from that of the District Court. This case therefore falls into the last category referred to by Chambers J: where amendment is particularly necessary.
[27] The following example illustrates why the questions stated by the District Court are no longer fit for purpose (if they ever were, considering the number of them) and need to be modified on any appeal to the Court of Appeal. The District Court received comprehensive submissions from all parties on the concept of transposition in extradition cases. This issue was particularly relevant to whether the United States was required to provide prima facie proof of copyright ownership and whether this had to be proved according to the law of the requesting state or some other law. Because of the approach taken by the District Court Judge,
he did not consider this issue at all and there is no reference to the topic in his judgment. The case stated on appeal to the High Court included a section headed “Matters I did not determine” and asked whether the Judge had erred by not doing so. One of the matters not determined concerned the applicability of the doctrine of transposition to issues of copyright. I answered this question by saying that this
issue required consideration and I addressed the topic in my reasons.11 The proposed
questions for the Court of Appeal concerning transposition are not new in the relevant sense because they were fully argued in the District Court and in the High Court. However, given that this issue was dealt with for the first time in the judgment of this Court, it is appropriate that any questions of law to be referred to the Court of Appeal on the topic are tailored to this Court’s reasoning.
[28] I conclude that the questions of law for which leave to appeal to the Court of Appeal may be granted do not have to replicate those stated by the District Court. While questions raising issues that were not considered in the High Court cannot be submitted to the Court of Appeal, this does not mean that the questions that were addressed cannot be refined, or even recast, to ensure that the true issue in dispute is framed correctly and with reference to the judgment under appeal, which is the first appeal to the High Court that I delivered on 20 February 2017.
Do the proposed questions meet the leave criteria?
[29] The test for leave is whether the question of law is one which, by reason of its general or public importance or for any other reason, ought to be submitted to the Court of Appeal for decision.12 Despite the large number of questions stated by the District Court, the principal issues in the case fall into three categories:
(a) Does the essence of the conduct for which the appellants are charged in each of the 13 counts amount to an extradition offence as required
by s 24(2)(c) of the Extradition Act?
11 First appeal, above n 1, at [274]-[294].
12 Summary Proceedings Act, s 144(2).
(b)Has the United States provided prima facie proof sufficient to justify a trial according to the law of New Zealand if the conduct constituting the offence had occurred in New Zealand as required by s 24(2)(d) of the Extradition Act?
(c) Did the United States abuse the District Court’s processes such that an order should have been made permanently staying the extradition proceedings?
Problems with proposed questions
[30] The questions proposed by the appellants for consideration by the Court of Appeal are an improvement on those submitted to the High Court to the extent that they are reduced in number from over 300 to approximately 130. However, the reduced number is still unnecessarily excessive and will not promote the just disposal of the proceedings. Despite this being a second appeal, the multiplicity of questions for which leave is sought reflects the approach taken when the case-stated appeals were settled in the District Court. The questions stated by the District Court were prolix and largely unhelpful in clarifying the true issues in dispute. This is illustrated by the fact that none of the parties developed their submissions in the High Court by reference to these questions. Given the large number of questions, it would have been impractical to do so. A much more focused approach is required for a second appeal.
[31] Messrs Ortmann and van der Kolk seek leave to appeal on 92 questions. Most of these seek advisory opinions about extradition proceedings generally rather than answers to discrete questions of law critical to the outcome of the present proceedings. In their application for leave dated 17 March 2017, for instance, 10 of their proposed questions are directed to general principles regarding the interpretation of extradition treaties:
Interpretation of extradition treaties
2.In eligibility proceedings under the Act, where it is necessary to interpret the provisions of an extradition treaty between New Zealand and a requesting state in order to determine whether an alleged offence is an extradition offence within the meaning of the Act:
(a) To what extent, if any, is it permissible in interpreting the treaty:
(i) to rely on legal rules or decisions that post-dated the negotiation of the treaty; or
(ii) to rely on legal rules or decisions that are unlikely to have been known to the negotiators; or
(iii) to rely on legal rules or decisions that are likely to have been known only to the negotiators on behalf of one of the treaty partners?
(b) In interpreting the treaty, is it lawful for the extradition court to conclude that expert testimony is irrelevant and inadmissible where the proposed evidence relates to the laws of the requesting state as they were at or before the time the treaty was negotiated?
(c) If such evidence is relevant and admissible, is it a breach of natural justice for a requested person to be denied a fair opportunity to obtain and present evidence of that kind?
(d) If such evidence is relevant and admissible but unavailable because access to that evidence has been prevented or hindered by deliberate conduct on the part of the requesting state:
(i) What effect, if any, does the conduct of the requesting state have on the validity or enforceability of the extradition proceedings?
(ii) Does the extradition court have authority to stay or dismiss the extradition proceedings as an abuse of the process of the court?
(iii) If so, should the extradition court exercise its authority to stay or dismiss the proceedings?
(e) If the extradition court has jurisdiction and/or a duty to grant a stay of proceeding in such circumstances:
(i) What is the correct test for determining whether a stay should be granted or the proceedings should be dismissed?
(ii) Should the extradition court exercise its authority to stay or dismiss the proceedings?
[32] Similar questions of general application — all commencing with the words “In eligibility proceedings under the Act…” — are assembled by Messrs Ortmann and van der Kolk under the following headings:
(a) Interpretation and application of section 24(2)(c) of the Act. (b) Deemed offences under section 101B of the Act.
(c) Interpretation and application of section 24(2)(d) of the Act. (d) The record of the case procedure under section 25 of the Act. (e) Access to expert testimony in the foreign state.
The other questions proposed by Messrs Ortmann and van der Kolk are also of general application and are listed under the following further headings:
(f) Abuse of process arising from wrongful conduct.
(g) Jurisdictional issues under sections 20 and 21 of the Act. (h) The duty of candour.
(i) Consequential questions of law.
[33] The questions not only seek advisory opinions of general application, many are so imprecise that they do not lend themselves to a single answer. An example is this question:
The record of the case procedure under section 25 of the Act
6.In eligibility proceedings under the Act, where the requesting state relies upon a record of the case under s 25 of the Act:
(a) To what extent and upon which principles is the admissibility of the record of the case able to be challenged by the requested person?
…
[34] Another example is this discursive series of questions:
Access to expert testimony in the foreign state
7.In eligibility proceedings under the Act, where the requesting state relies upon the testimony of an expert witness as to matters of law or matters of computer technology or industry practice in the requesting state:
(a) Does the requested person have the right to obtain expert advice in respect of that testimony and to respond with evidence, concerning those issues?
(b) If so, and if deliberate conduct on the part of the requesting state has prevented or significantly hindered the requested person from exercising that right, does the extradition court have jurisdiction and/or a duty to stay or dismiss the extradition proceedings?
(c) If such advice is necessary, and/or such evidence is relevant and admissible, but unavailable because access to the necessary expertise has been prevented or hindered by deliberate conduct on the part of the requesting state:
(i) What effect, if any, does the conduct of the requesting state have on the validity or enforceability of the extradition proceedings?
(ii) Does the extradition court have jurisdiction and/or a duty to stay or dismiss the extradition proceedings as an abuse of the process of the court?
…
[35] To answer these and the many other questions like them, the Court of Appeal would be required to write a treatise on extradition law. That is not the function of an appellate court hearing a second appeal. The questions appropriate for consideration on such an appeal should be confined to those that will be dispositive
of the particular determination of eligibility.13
[36] The 80 questions proposed by Mr Batato are modelled on those prepared for
Messrs Ortmann and van der Kolk and suffer from the same defects.
13 I do not overlook that Mr Illingworth QC proposed alternative questions in his reply submissions but these are substantially the same questions recast in different terms.
Extradition offences?
[37] The 43 questions proposed by Mr Dotcom are more specific. However, some of these questions are also unnecessary. For example, the first four questions directed at whether the offences are extradition offences:
3. Extradition Act: section 24(2)(c)
3.1Having determined after a review of the legislative history and context that online communication of copyright protected works to the public is not a criminal offence in New Zealand under s 131 of the Copyright Act 1994 …, did the High Court err in determining that:
(a) There is nothing to indicate that Parliament intended the Copyright Act to be a code precluding liability under the Crimes Act 1961 … provisions;
(b) The conduct alleged constitutes the offence of conspiracy to defraud in terms of Article II.16 of the Treaty on extradition between New Zealand and the United States of America …; and
(c) That a party can be criminally liable and eligible for extradition for conspiring with another to do only a civil wrong, even if it was something that the High Court found was not a criminal offence?
3.2Did the High Court err in determining that ss 92B and 92C of the Copyright Act 1994 (safe harbour provisions) … do not assist the appellants’ argument that the alleged conduct could not come within Article II.16 of the Treaty (or any of the Crimes Act provisions relied upon by the United States)?
(Footnotes omitted.)
These issues may well be covered in submissions but they do not need to be advanced as separate questions in applying for leave to bring a second appeal. The questions that will determine this aspect of the eligibility contest are the ones that follow:
3.3Did the High Court err in determining that the Counts in the Superseding Indictment translated to the following extradition offences pursuant to s 24(2)(c) of the Extradition Act 1999 …:
(d) Count 2: conspiracy to defraud (Article II.16 Treaty); dishonestly taking or using a document (s 228 Crimes Act); accessing a computer system for dishonest purpose (s 249
Crimes Act);
(e) Count 4: dishonestly taking or using a document (s 228
Crimes Act) and accessing a computer system for a dishonest purpose (s 249 Crimes Act);
(f) Counts 5 – 8: dishonestly taking or using a document (s 228
Crimes Act) and accessing a computer system for dishonest purpose (s 249 Crimes Act);
(g) Count 3: conspiracy to commit money-laundering (Article
II.16 Treaty);
(h) Counts 9 – 13: conspiracy to defraud (Article II.16 Treaty); dishonestly taking or using a document (s 228 Crimes Act); obtaining by deception or causing loss by deception (s 240
Crimes Act); accessing a computer system for dishonest purpose (s 249 Crimes Act); and
(i) Count 1: participation in organised criminal group (s 98A Crimes Act)?
(Footnotes omitted.)
[38] I accept that these questions of law, which all appellants seek to raise, satisfy the criteria for leave. The answers to them may well be determinative of the appeals. However, the prolixity of the proposed wording should be refined in formulating a discrete question of law for the Court of Appeal.14
Sufficient proof?
[39] The appellants also challenged the sufficiency of the summary of the evidence in the record of the case to justify committal on each count under s 24(2)(d) of the Extradition Act. In particular, they challenged the admissibility of the record of the case on the grounds that: it did not amount to a summary of the evidence in terms of s 25(2)(a); the evidence had not been preserved for trial pursuant to s 25(3)(a); and the certificate given pursuant to s 25(3)(b) was invalid. They also challenged the weight and sufficiency of the summarised evidence, having particular regard to the conclusory statements asserting copyright ownership. The appellants seek to rerun all of these arguments in the Court of Appeal. However, in my view, the only issue that satisfies the criteria for leave concerns the concept of transposition and how it applies, if at all, where copyright infringement is alleged.
As far as I am aware, this issue has not been considered previously by a
14 See [49(a)] below.
New Zealand court. I consider that leave should be granted to all appellants to raise this question on appeal to the Court of Appeal.
Stay applications?
[40] The remaining questions relate to the three stay applications which were effectively struck out by the District Court. I confirmed the decision to dismiss these applications on appeal.
[41] The first of these applications, referred to in the judgment as the “funding stay application”, was based on the contention that the United States had abused the extradition court’s processes by insisting that restrained monies released by the courts in New Zealand and Hong Kong could not be used to meet the expenses of legal or technical experts in the United States, thereby impeding the appellants’
defence of the extradition proceedings.15 The appellants argued on appeal to the
High Court and in their applications for judicial review that the District Court Judge breached their right to natural justice, made multiple errors of law and acted unreasonably in dismissing this application.16 I rejected those complaints and concluded that there was no substance to the appellants’ contention that they were denied a fair eligibility hearing as a result of being unable to instruct experts in the United States in the few months prior to commencement of the eligibility hearing in the District Court.17
[42] The sequence of questions which Messrs Ortmann and van der Kolk wish to raise on appeal to the Court of Appeal on this topic commence with the one quoted at [34] above as to whether they had “the right to obtain expert advice”. This leads on to the question as to whether the extradition court “had a duty to stay or dismiss the extradition proceedings as an abuse of the process of the court” in circumstances where their ability to instruct such experts has been “prevented or hindered by
deliberate conduct on the part of the requesting state”.
15 First appeal, above n 1, at [429].
16 At [453]–[454].
17 At [521].
[43] It is beyond argument that the extradition court has an inherent power to ensure that there is a fair eligibility hearing and can grant a stay of the proceedings if the conduct of the requesting state has denied a requesting person’s right to such a hearing.18 The problem for the appellants is one of fact, not law. They face concurrent findings of fact in the District Court and in the High Court that they were not denied a fair eligibility hearing as a result of any funding restriction. This is not
a promising foundation for a second appeal restricted to questions of law.
[44] The other two stay applications — described in the judgment as the “August stay application” and the “September stay application”, or together as the “misconduct stay applications” — were effectively struck out by the District Court. I was satisfied that the District Court was correct to dismiss these applications
without inquiring into the merits.19 It was clear that the extradition court had no
jurisdiction to inquire into the matters complained of because they fell outside the
scope of the extradition court’s limited statutory function.
[45] I do not consider that leave should be granted for a further appeal in respect of the stay applications for the following reasons.
[46] First, I consider that the proposed appeal against the concurrent determinations in the District Court and the High Court have no realistic prospect of succeeding because of the facts. There is no contest about any relevant question of law that could realistically result in a different outcome being achieved.
[47] Second, appeal rights under s 68 of the Extradition Act are concerned with the determination of whether a person is or is not eligible for extradition. The District Court’s decision to decline the stay applications were not themselves determinations of eligibility; rather, they were decisions not to stay the proceedings in which eligibility would be determined.
[48] Third, as a related point, the challenge to the dismissal of the stay applications fitted most comfortably within the applications for judicial review that
18 See for example Dotcom v United States of America [2014] NZSC 24, [2014] 1 NZLR 355 at
[309] per Glazebrook J.
19 First appeal, above n 1, at [522]–[553].
were heard together with the appeals and also dealt with in the judgment. This is demonstrated by the fact that the complaints concerning the stay applications were addressed by the appellants under the heads of breach of natural justice, errors of law, unreasonableness, bias, and predetermination. The appellants can appeal as of right against my judgment declining the applications for judicial review and have
done so.20 Every ground relied on in the case-stated appeals to the High Court was
replicated in the applications for judicial review. For that reason, there can be no further question arising on the proposed case-stated appeals that “ought to be submitted to the Court of Appeal for decision” in terms of s 144(2) of the Summary Proceedings Act beyond those already available in the appeals against the parts of my judgment declining the applications for judicial review.
Conclusion
[49] Accordingly, I grant leave to the appellants to appeal to the Court of Appeal on the following questions of law:
(a) 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?
(b)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?
Result
[50] The United States’ application for leave to appeal is declined.
20 Judicature Act 1908, s 66 (repealed); Senior Courts Act 2016, s 56.
[51] The appellants are granted leave to appeal to the Court of Appeal on the
questions listed in [49] of this judgment.
M A Gilbert J
Counsel/Solicitors:
G M Illingworth QC, Auckland
G J Foley, Auckland
Keegan Alexander, Auckland
Crown Law, WellingtonAnderson Creagh Lai, Auckland
R Mansfield, Auckland
J Bioletti, Auckland
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