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Feds Presume A Great Deal in Dotcom Case

04/03/2012

On the 20th of January this year, the improbably named Kim Dotcom was arrested in a dawn raid on his rented north-Auckland mansion, on a warrant issued by a New Zealand court at the request of a foreign state – the United States of America. As is of course now well known, Dotcom has been subjected to an application by the US Department of Justice for his extradition to the US to face a range of charges relating to his busines, Megaupload. In a nutshell, Dotcom and others have been charged by a court in Virginia state with the piracy (or abetting of piracy) of copyright material on a grand scale.

We now learn that the US authorities will not be in a position to proceed with the substantive extradition application until some time in August – seven months after Dotcom’s arrest. On any view, this is a baffling period of delay between the point in time when – presumably – the US government believed it had a case for Dotcom to answer and the point at which it will be ready to justify that belief.

There is a strong whiff of presumption here. Irrespective of whether he is the master-criminal alleged, and let’s not overlook that to this point this is only the claim of a secret body in a foreign country considering only the prosecution case – otherwise known as a ‘grand jury’, Dotcom has the same entitlement as any other person in New Zealand to speedy justice. Yet it transpires that the Feds are not ready to proceed with his extradition for another six months and presumably they were not ready to proceed when they had him arrested by the NZ Police.

On top of that inordinate delay, they – the Feds – have had the temerity to demand that he remain in custody throughout this eight-month period. It needs to be borne in mind that we are not here concerned with an alleged killer, or rapist, or drug dealer. Or, for that matter, and whatever view you take of Dotcom’s alleged crimes, of an organised gangster. Yes, he’s been charged with moneylaundering – which is the stuff of organised crime – but it’s apparent that this is just a side-show, perhaps thrown in to ensure that he faces a recognisable New Zealand crime, absent which he cannot legally be extradited. (See in this regard the Extradition Act 1999, section 4.) But there does not otherwise appear to be any suggestion that Dotcom is a dangerous criminal whose incarceration pending his extradition is in any way justified.

The New Zealand courts appear to have agreed, with the man now free – relatively – on bail despite the strident and unseemly US attempts via the Crown’s prosecutor to prevent it.

Under extradition law, at least as applied in New Zealand, there is absolutely no presumption of the guilt of a person charged in a foreign court. Dotcom is not a New Zealand citizen but that is neither here nor there. He was and remains legally resident and both the courts and the executive (for extradition is ultimately ordered not by a court but by the Minister of Justice) should insist on a clear, indeed compelling, case to answer before surrendering him to American justice. The Fed’s need for eight months to get its ducks in a row is a presumption on New Zealand justice and should be noted as such.

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