Ortmann v United States of America

[2016] NZHC 2043

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2015-404-000429 [2016] NZHC 2043

UNDER THE

Extradition Act 1999

IN THE MATTER OF

an appeal 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

Cont: …/2

Hearing:	30 August 2016
Appearances:	G Illingworth QC, P Spring and A Hyde for First and Third Appellants R M Mansfield and S L Cogan for Second Appellant J N Bioletti for Fourth Appellant J C Gordon QC, M Ruffin, F R J Sinclair and F G Biggs for Respondent
Judgment:	30 August 2016
Reasons:	31 August 2016

JUDGMENT (No. 1) OF GILBERT J

ORTMANN & ORS v USA (No. 1) [2016] NZHC 2043 [30 August 2016]

…/2

BRAM VAN DER KOLK Third Appellant

FINN HABIB BATATO Fourth Appellant

ANDTHE UNITED STATES OF AMERICA Respondent

Introduction

[1]      This proceeding involves an appeal by way of case stated and applications for judicial  review  of  a  decision  of  the  North  Shore  District  Court  delivered  on

23 December 2015  finding that the appellants are eligible for extradition to the United States to face trial on various charges including conspiracy to commit racketeering, conspiracy to commit copyright infringement, conspiracy to commit money laundering, criminal copyright infringement and wire fraud.1   These charges arise out of the appellants’ involvement with a company called Megaupload Ltd, an internet service provider which operated as a cloud storage and file hosting website.

[2]      The case has been touted as one of the largest criminal copyright cases ever brought by the United States and it raises a number of issues of considerable public importance.   The extradition proceedings, which commenced in New Zealand in January 2012, have also been complex.   Some of the issues that have arisen have already been the subject of appeals to the Court of Appeal and to the Supreme Court. The case has attracted significant public interest in New Zealand and overseas and has received widespread media coverage.

[3]      At the commencement of the hearing, Mr Dotcom made an application for permission to allow a professional cameraman, Ben McAlister, to film the hearing and live stream the recording on (YouTube). The application was made   in   accordance   with   the   In-Court   Media   Coverage   Guidelines   2015. Mr McAlister  has  filed  an  affidavit  in  support  of  the  application  detailing  his qualifications and experience and providing an undertaking to the Court to comply with the standard conditions set out in schedule 2 of the guidelines and any other conditions imposed by the Court.

[4]      The application was filed late and accordingly it could not be dealt with prior to the commencement of the substantive hearing on 29 August 2016.  It transpired that media representatives, whose interests could be affected, had not been served with the application and it was accordingly adjourned until 30 August 2016 to enable

this to occur. The substantive hearing commenced on 29 August 2016, as scheduled.

1      United States of America v Dotcom & Ors DC North Shore CRI-2012-092-1647, 23 December

2015.

[5]      The application for live streaming was recalled prior to the resumption of the substantive hearing on 30 August 2016.  All media representatives present in Court advised  that  they  supported  the  application.    After  hearing  submissions  from Mr Mansfield in support of the application and from Ms Gordon QC on behalf of the United States in opposition, I granted the application on the terms set out at the conclusion of this judgment.   Rather than delay the progress of the substantive hearing, I advised that I would give brief reasons for my decision when time permitted. These are now set out below.

Opposition to application

[6]      The only opposition to the application is from the United States.   In the written submissions filed on its behalf, the following grounds of opposition were raised:

(a)      Mr Dotcom is not a member of the media and is not subject to a code of ethics or the complaints procedure of the Broadcasting Standards Authority or the Press Council.   Unlike the position with dedicated and  principled  journalists  working  for  recognised  media organisations,  the  Court  cannot  be  confident  that  Mr Dotcom  will comply with its directions.  Further, the live stream will be posted to YouTube rather than controlled on the website of a media applicant.

(b)Because of the nature of live streaming, it will be difficult to ensure compliance with the standard conditions for film in schedule 2 of the guidelines, including, for example, the prohibition on filming of counsel’s papers or inappropriate depiction of people in Court.

(c)      Live streaming will mean that the hearing is not edited and will enable a complete report of the proceeding.  The United States contends that editing should be viewed as an advantage in that it allows any inappropriate recording to be filtered.

[7]      Although not mentioned in the written submissions, Ms Gordon raised an additional concern in the course of her oral argument.  She submitted that the present

hearing could include discussion of matters that would be inadmissible and irrelevant for the purposes of any trial of the criminal proceedings in the United States.  Her concern was that if these matters were live streamed on YouTube, this could have a prejudicial effect on the pool of potential jurors for any such trial.

Analysis

[8]      There is considerable public interest in this case, both in New Zealand and from overseas.  The hearing is being conducted in public. Any member of the public is  entitled  to  attend.    All  media  applications,  which  include  print,  radio  and television, have been granted without opposition.  Subject to the standard conditions, there are no  restrictions  on the extent of this  coverage.   However,  because the hearing is expected to take six weeks, conventional media reporting will inevitably be limited and incomplete.   Granting the application to live stream will therefore facilitate public access to the Court proceedings for people who are unable to attend the hearing in person.   It will provide an opportunity for anyone to observe the proceedings by means of a virtual seat in the gallery.  The application can therefore be seen as serving the interests of open justice and transparency in judicial decision- making.

[9]      The hearing is confined to the presentation of legal submissions before a judge sitting alone.   The usual concerns that can often arise in trials about the potential adverse effect of live streaming on parties, victims, witnesses or juries do not arise in this case.  Nor is there any concern that live streaming could defeat an order excluding witnesses until they are called to give evidence.   No concern has been raised that live streaming will be disruptive or distracting.   There is no suggestion that it would impose any additional stress on the participants in the hearing.  The parties’ rights to a fair hearing will not be impeded or compromised if live streaming is permitted.   For these reasons, this case is one that appears to be suitable for live streaming so long as appropriate protocols are set in place.

[10]     Live streaming of court proceedings is not new.  It is routine in some courts in other jurisdictions and is not unprecedented  in New  Zealand.    In its written submissions, the United States did not oppose live streaming of the hearing as a

matter of principle.  Rather, its submissions focus on the risk of non-compliance with the Court’s directions, including the standard conditions in the guidelines, because the application is made by Mr Dotcom and not a media representative.  I consider that this concern is overstated.   Mr McAlister is an independent professional cameraman.   He has  provided an  undertaking to  the Court  to  comply with  the standard conditions and any other conditions imposed by the Court.   He will be present in Court at all times while filming is occurring and will be in full view of counsel and the Court.  If there is any breach of the guidelines and conditions, this will become apparent and is likely to result in permission to continue filming being withdrawn.    Although  Mr  Dotcom  is  the  applicant,  the  Court  is  relying  on Mr McAlister’s professionalism and the written undertaking he has given to the Court to ensure compliance with its directions.

[11]     Ms Gordon did not provide any examples of the evidential material that will be discussed in this hearing and which could infect a jury pool in the United States. This proceeding concerns an appeal from a publicly available judgment and will largely be confined to a reconsideration of the same material that was traversed in the District Court in a hearing open to the public.   There has already been considerable publicity about the events to be discussed during this hearing and there has  been  no  opposition  to  coverage  by print,  radio  and  television  media.    The concern Ms Gordon raises can be addressed if and when it arises.

[12]     A very limited amount of the material to be discussed during the hearing is the subject of suppression orders made in the District Court and by the Court of Appeal.   Counsel have agreed to notify the Court prior to referring to any such material so that these orders can be complied with.  Mr McAlister will not film or record these parts of the hearing.  There will be a 20 minute delay between filming and live streaming as an additional safeguard.

[13]     I consider that these arrangements are also sufficient to mitigate the risk of publication of any material that may give rise to legitimate concerns relating to any eventual trial in the United States.  Counsel for the United States will be able to raise any issue of concern so that it can be dealt with off camera and appropriate arrangements made.

Result

[14]     Pending  further  order  of  the  Court,  the  application  to  live  stream  the proceeding on YouTube is granted subject to the following conditions:

(a)      Where  applicable,  the  standard  conditions  for  film  set  out  in schedule 2 of the In-Court Media Coverage Guidelines 2015, a copy of which is attached to this judgment, shall apply, save as amended by this order.

(b)The   10   minute   delay   on   publication   referred   to   in   standard condition 14 is increased to 20 minutes.  Standard condition 15 does not apply.

(c)       Standard condition 18 is modified by deleting the words “except by an

applicant who received permission to film”.

(d)There  is  to  be  no  filming  or  recording  of  private  conversations between counsel or between counsel and their clients.

(e)       The “allow comments” and “enable live chat” features on YouTube

shall not be enabled for the live stream.

(f)      There is to be no filming or recording of any material that is subject to the  existing  suppression  orders.    Counsel  are  to  notify  the  Court before referring to any such material in their submissions to enable this condition to be complied with.

(g)Counsel are conferring on the form of an appropriate condition to address the issue identified in standard condition 16.   Pending any further order, Mr McAlister is to retain possession of the recording.

[15]     I reserve leave to any party to apply on short notice to vary the terms of this

order.

M A Gilbert J