After the United States were given several days to state their case against Kim Dotcom and his former business associates, this morning lawyers for the Megaupload four stated why their clients should not be extradited to the United States. The U.S. has used unfair tactics to gain an advantage so the hearing should be brought to an end, the Court heard.
After suffering ten postponements the extradition hearing of Kim Dotcom, Mathias Ortmann, Finn Batato and Bram van der Kolk was never likely to be a smooth, straightforward affair, even when it eventually got underway in the Auckland District Court.
The first few days of the hearing were spent by Crown lawyer Christine Gordon QC, who has been acting on behalf the U.S., painting a highly negative picture of the quartet. Incriminating correspondence, culled from their Skype accounts, suggested that there had been knowledge of infringement, she claimed.
After the U.S. finally wrapped up its case last Thursday, Judge Dawson was asked to decide when several applications filed by Dotcom’s team to drop the hearing would be heard. Would it be appropriate to deal with them before the accused took the stand to fight the extradition, or at another time?
In the event Judge Dawson decided that the stay applications – which cover the U.S. freeze on Dotcom’s funds and other ‘unreasonable’ behavior, plus allegations of abuse of process by Crown lawyers – should be heard first.
During this morning’s session defense attorney Grant Illingworth QC motivated the request to stay the case. Illingworth told the Court that due to the ongoing U.S.-ordered freeze on his clients’ funds (and the prospect that any funds sent to the U.S. would have the same fate), they are unable to retain experts on U.S. law.
“We say the issue is that they cannot use restrained funds to pay experts in US law, if those experts are not New Zealand citizens,” Illingworth said.
“Access to such expertise is necessary but being prevented by the US. It means not having the ability to call evidence but also the ability to get advice so counsel can present their case.”
Illingworth said the unfair tactics amounted to an abuse of process which has reduced New Zealand-based lawyers to a position of dealing with U.S. law on a “guess work” basis which could leave them open to accusations of being both negligent and incompetent.
“In any other case we would seek expert advice,” Illingworth said, but in this situation obtaining that is proving impossible. No defense means that the hearing is fundamentally unfair, he argued.
In this afternoon’s session, attention turned to claims by the United States that Bram van der Kolk uploaded a pre-release copy of the Liam Neeson movie ‘Taken’ to Megaupload and shared links with friends.
The U.S. says that nine people downloaded the thriller but lawyers for Van Der Kolk insist that whatever the case, the movie was not ‘pre-release’ since it was already available in more than two dozen countries during 2008. The movie was premiered in the United States during 2009. Pre-release movie piracy is a criminal offense under U.S. law.
The extradition hearing is now in its third week and is expected to last another three, but that could change. If the applications currently being heard are successful, the Judge could order a new case or might even stay the extradition hearing altogether.