US refusal to grant Dotcom disclosure based on a 'fallacy'

UPDATE:

Kim Dotcom’s Queens counsel, Paul Davison, says the US government’s refusal to grant disclosure is based on a “fallacy” that it will speed up the extradition process.

A judicial review concluded at Auckland High Court with Chief High Court Judge Helen Winkelmann reserving her decision on what should be done with the evidence. 

Justice Winkelmann last week ruled the search warrants used to obtain the evidence were invalid, therefore the Crown, acting for the FBI, and the defence, must decide whether the evidence can be used for the extradition proceeding. 

Mr Davison says the Crown wants to limit the ability of Mr Dotcom to give evidence in his extradition hearing because they are worried it could drag the process out.

Instead of granting disclosure of evidence to Mr Dotcom, the Crown wants to simply provide the defence with a summary of the case they have against him.

Mr Davison says if Mr Dotcom and his co-accused can provide relevant evidence, they must be allowed to do so.

“The US is wanting its law and its practices to apply, and to somehow or another influence whether there should be disclosure in this jurisdiction.

“That is entirely beside the point. The US has elected to come to New Zealand and seek the extradition, and have therefore engaged the New Zealand processes.”

Mr Davison says the extradition treaty stipulates that the law of New Zealand applies, and the US government must comply with that.

He says if the FBI has material relevant to the extradition process, it must be given to Mr Dotcom in the interests of fairness.

“One wonders what the problem is, and why it’s not forthcoming.”

1.30pm:

Crown lawyers are continuing to try and stop Kim Dotcom seeing what evidence the FBI holds against him ahead of his upcoming extradition hearing. 

A judicial review is taking place at the Auckland High Court today before Chief High Court Judge Helen Winkelmann into what should be done with the evidence. 

Justice Winkelmann last week ruled the search warrants used to obtain the evidence were invalid, therefore the Crown, acting for the FBI, and the defence, must decide whether the evidence can be used for the extradition proceeding. 

Crown lawyer John Pike today told the court providing evidence is not necessary in an extradition case. 

He argues the summary of the case is enough, and the evidence held in that summary is reliable. 

However, Mr Dotcom's defence lawyers maintain they are entitled to disclosure. 

Queen's counsel Paul Davison says the extradition of Mr Dotcom by District Court judge David Harvey would require a "judicial examination and decision".

He says that would not be possible if Judge Harvey only has a summary of the case to go by. 

The hearing is proceeding. 

10am:

Crown lawyers are back in the Auckland High Court this morning arguing why the US government should not have to grant Kim Dotcom access to the evidence they hold against him.

The hearing before Chief High Court Judge Helen Winkelmann is set down for two days.

District court judge David Harvey earlier granted Megaupload founder Mr Dotcom disclosure, but today's judicial review, sought by the Crown, is an attempt to clarify what obligations the FBI has to provide the evidence.

The FBI argues it does not have enough time to produce copies of the "voluminous" documents it holds.

It also says under US law, it does not have to grant disclosure until Mr Dotcom has made a first appearance in an American court.

That will not happen at least until the US government succeeds in having Mr Dotcom extradited to America – a prospect some legal observers say is looking less likely by the day.

Mr Dotcom's lawyers argue they need access to the evidence so they can prepare for the upcoming extradition hearing.