Supreme Court of New Zealand
Te Kōti Mana Nui

5 JUNE 2019
MEDIA RELEASE
MATHIAS ORTMANN AND OTHERS v UNITED STATES OF
AMERICA AND ANOTHER (SC 54/2018)
FINN HABIB BATATO v UNITED STATES OF AMERICA (SC 55/2018)
MATHIAS ORTMAN AND ANOTHER v UNITED STATES OF
AMERICA (SC 56/2018)
KIM DOTCOM v UNITED STATES OF AMERICA (SC 57/2018)
KIM DOTCOM v UNITED STATES OF AMERICA AND ANOTHER
(SC 58/2018)

CASE HISTORY SYNOPSIS
This synopsis is provided to assist in understanding the history of
the case and the issues to be heard by the Court. It does not
represent the views of the panel that will hear the appeal in the
Supreme Court. Given the breadth and complexity of the issues
raised in the proceeding it involves some simplification and
addresses only the major points in issue. The synopsis does not
comprise part of the reasons for the judgments of the lower Courts.
The full judgments with reasons are the only authoritative documents
and can be found at www.courtsofnz.govt.nz
The United States of America wishes to extradite Messrs Ortmann, van
der Kolk, Batato and Dotcom (the appellants) to face trial for criminal
infringement of copyright in that country. Through a business known as
Megaupload they are said to have breached copyright in commercially
valuable property such as movies, games and music (the works).
The appellants can be extradited to face trial in the United States only if,
as a first step, a New Zealand court determines that they are eligible for
extradition in relation to the offences for which surrender is sought under
the relevant provisions of the Extradition Act 1999 (the Act). If the court
finds they are eligible, the final decision as to whether the appellants are,
in fact, going to be extradited lies with the Minister of Justice. These
proceedings concern the eligibility of the appellants for extradition.

 Eligibility for extradition is determined by a four-step process:
1. The supporting documents in relation to the offence have been
presented to the extradition court in New Zealand.
2. The extradition court must decide that the offence in question is an
extradition offence in relation to the United States.
3. The extradition court must decide whether the evidence produced
at the hearing would justify the appellants’ trial if the alleged
offending had occurred within New Zealand.
4. The extradition court must assess whether any restrictions on
surrender set out in the Act apply.
In the District Court in December 2015, Judge Dawson found that the
appellants were eligible for extradition.
The appellants brought a wide-ranging appeal to the High Court against
the District Court decision. They also sought judicial review of the District
Court decision on a number of grounds.
In the High Court, Gilbert J considered there was significant overlap
between the grounds advanced in support of the appeal and the grounds
advanced in the judicial review applications. Because of which, he decided
that he would only consider issues advanced in the judicial review
proceedings which were not also replicated as grounds of appeal. In this
case, that was only one issue – an allegation of bias and pre-determination
on the part of the District Court Judge.
The appellants were unsuccessful before Gilbert J in the High Court in
February 2017 in both their appeal and judicial review applications.
In reaching his decision on the eligibility of the appellants, Gilbert J applied
(as he was bound to do) a previous Court of Appeal decision – United
States of America v Cullinane [2003] 2 NZLR 1 (CA). That decision set
out that, in determining whether an offence is an “extradition offence”, the
provisions of the Act are to be replaced by the articles in the Treaty on
extradition between New Zealand and the United States. In Cullinane, the
Court said the effect of this replacement meant that what is known as the
“double criminality” requirement did not apply. The principle of double
criminality means that extradition is allowed only for conduct that amounts
to an offence in the country requesting extradition if the conduct also
amounts to an offence in the country from which extradition is sought.
Because the Court in Cullinane said double criminality does not apply to
the extradition treaty between New Zealand and the United States, Gilbert
J did not have to decide whether the appellants’ conduct would have been
an offence under New Zealand law had it occurred in New Zealand at the
relevant time.
The appellants were granted leave to appeal to the Court of Appeal on two
questions of law, namely:
(a) Was the High Court correct to find that the appellants’ conduct
amounted to an extradition offence?

 (b) Was the High Court correct to conclude that the United States did
not have to prove that copyright existed in the relevant works in the
United States at the time of the alleged offending?
The appellants also appealed against Gilbert J’s decision to decline judicial
review.
In July 2018, the Court of Appeal answered “yes” to both questions and
upheld the finding that the appellants are eligible to be extradited. It also
held that judicial review was correctly refused in the High Court. It
accordingly dismissed the appeal.
On the first question, the Court of Appeal reached the same conclusion as
Gilbert J – that the appellants’ conduct amounted to an extradition offence
– although for different reasons. Unlike Gilbert J, the Court of Appeal was
not bound by the decision in Cullinane. The Court decided to overrule
Cullinane, the effect of which was to reinstate the requirement of double
criminality. Accordingly, in order to constitute an extradition offence, the
appellants’ alleged conduct had to amount to a criminal offence in both the
United States and New Zealand.
An important issue in the Court of Appeal was whether copyright
infringement is criminalised in New Zealand. The Court of Appeal
concluded that the appellants’ alleged conduct that was said to amount to
copyright infringement in the United States would fall within s 131 of the
Copyright Act 1994 which, it found, imposes criminal liability for making or
dealing with infringing copies of digital material. It also considered that the
appellants’ alleged conduct would constitute various offences under the
Crimes Act 1961. After detailed analysis of the allegations against the
appellants, the Court of Appeal concluded that the appellants’ alleged
conduct amounted to an extradition offence for the purposes of the Act.
The answer to the second question (b), above, depended on whether the
copyright status of the works was an essential feature of the offence with
which the appellants were charged. If the copyright status of the works
was non-essential, the Court could assume that copyright did, in fact, exist
in the works at the time of the alleged offending for the purposes of
determining whether there was sufficient evidence to justify committing the
appellants for trial.
The Court of Appeal found that copyright status was non-essential when
assessing the sufficiency of the evidence against the appellants. It
reached this conclusion on the basis that the United States was required
to prove in the proceeding to determine eligibility for extradition only that
the appellants’ conduct constituted an extradition offence to the necessary
standard. “Conduct constituting an offence” is defined in the Act by
reference to the acts or omissions of a person. Here, the Court decided, it
could not be said that the copyright status of the works formed part of the
acts or omissions of the appellants and therefore it fell outside the
appellants’ alleged conduct which the United States was required to prove.
The Court concluded that New Zealand law permits extradition for
copyright infringement and there was sufficient evidence to establish the
appellants’ eligibility for extradition on the facts.

 In respect of the appeal against the refusal for judicial review, the Court of
Appeal considered only the ground of bias and pre-determination. It found
that the High Court was correct to refuse judicial review on this basis.
The appellants appealed to the Supreme Court. However, there was a
preliminary dispute as to whether matters decided by the Court of Appeal
under the Extradition Act are appealable to the Supreme Court. In
December 2018, the Supreme Court concluded they are, and that it
therefore has jurisdiction to hear the proposed appeals and granted the
appellants leave to appeal against the decision of the Court of Appeal.
The main issues that fall to be determined in the Supreme Court are:
(a) whether the Court of Appeal was correct to overrule Cullinane and
reinstate the double criminality requirement;
(b) if Cullinane was correctly overruled, whether the Court of Appeal
was correct to find that copyright infringement of the kind alleged to
have been done by the appellants amounted to a criminal offence
in New Zealand (under the Copyright Act and the Crimes Act) and
thus an extradition offence for the purposes of the Act;
(c) whether the Court of Appeal was correct to hold that the copyright
status of the works is non-essential and therefore can be assumed
for the purposes of the eligibility proceeding;
(d) whether the Court of Appeal was correct to find that there is
sufficient evidence to establish the appellants’ eligibility for
extradition on the facts; and
(e) whether the Court of Appeal was correct to dismiss the appeal
against the High Court’s decision to decline judicial review.

Contact person:
Kieron McCarron, Supreme Court Registrar (04) 471 6921
Supreme Court leave decision : [2018] NZSC 126 [20 December 2018]
Court of Appeal decision : [2018] NZCA 233 [5 July 2018]
High Court decision : [2017] NZHC 189 [20 February 2017]