MATHIAS ORTMANN v UNITED STATES OF AMERICA [2020] NZSC 120

MATHIAS ORTMANN v UNITED STATES OF AMERICA [2020] NZSC 120

The Supreme Court held that double criminality is a necessary precondition to extradition under Part 3 of the Extradition Act 1999; s24(2)(c) requires satisfaction that the conduct is within the treaty offence, punishable in the requesting state by a maximum ≥12 months, and would constitute a like New Zealand offence punishable by ≥12 months; s131 Copyright Act criminalises knowingly dealing with infringing copies including digital files and provides an extradition pathway for counts 2 and 4–8 (safe harbours, incidental/transient copying and limitation provisions do not preclude liability on the facts alleged); the US must prove copyright status to a prima facie standard under...

Citation
[2010] 1 NZLR 475
Parties
First Appellant: Mathias Ortmann; Second Appellant: Bram van der Kolk; Third Appellant: Finn Habib Batato; Appellant: Kim Dotcom; First Respondent: United States of America; Second Respondent: District Court at North Shore
Court
Supreme Court
Jurisdiction
New Zealand
Judgment Date
4 November 2020
Procedural Posture
Extradition / Judicial Review / Supreme Court Appeal (leave Granted)
Legal Topics
Double Criminality, Extradition Act 1999 S24 Requirements, Prima Facie Proof (s24(2)(d)(i)), Application of Copyright Act 1994 S131 to Digital Files, Crimes Act Offences as Extradition Pathways, Case Stated Appeals and Appellate Powers, Abuse of Process in Judicial Review
Extradition Law Criminal Law Copyright Law International Law Judicial Review Double Criminality Extradition Act 1999 S24 Requirements Prima Facie Proof (s24(2)(d)(i)) +4 more

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Parties

Mathias Ortmann

First Appellant

Bram van der Kolk

Second Appellant

Finn Habib Batato

Third Appellant

Kim Dotcom

Appellant

United States of America

First Respondent

District Court at North Shore

Second Respondent

Procedural Posture

Extradition / Judicial Review / Supreme Court Appeal (leave Granted)

Legal Issues

  1. 1 Whether double criminality is required for Part 3 extradition requests
  2. 2 Proper interpretation and effect of Extradition Act ss 4 and 11 vis-à-vis treaties
  3. 3 What s 24(2)(c) requires the extradition court to be satisfied of

Ratio Decidendi

The Supreme Court held that double criminality is a necessary precondition to extradition under Part 3 of the Extradition Act 1999; s24(2)(c) requires satisfaction that the conduct is within the treaty offence, punishable in the requesting state by a maximum ≥12 months, and would constitute a like New Zealand offence punishable by ≥12 months; s131 Copyright Act criminalises knowingly dealing with infringing copies including digital files and provides an extradition pathway for counts 2 and 4–8 (safe harbours, incidental/transient copying and limitation provisions do not preclude liability on the facts alleged); the US must prove copyright status to a prima facie standard under...