Under the Judicial Review Procedure Act 2016
In the Matter of an application for judicial review
[2025] NZHC 2634
CIV-2024-485-583
IN THE HIGH COURT OF NEW ZEALAND
WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA
TE WHANGANUI-A-TARA ROHE
Criminal Procedure, Judicial Review — Application for judicial review of a decision to surrender the applicant to the United States of America to face charges of copyright infringement, money laundering, and wire fraud, in relation to his company Megaload — errors of law — mandatory and discretionary restrictions for surrender — unreasonableness — refusal to charge and prosecute in New Zealand — Extradition Act 1999 — Treaty on Extradition between New Zealand and the United States of America
R M Mansfield KC and S L Cogan for Applicant
J E Hodder KC and S J Leslie for First Respondent
G M Taylor and F R J Sinclair for Second Respondent
JUDGMENT OF Grice J
(Judicial review)
| Introduction | [1] |
| The statutory framework | [6] |
| Background | |
| Events giving rise to the Surrender Decision | [12] |
| Mr Ortmann and Mr van der Kolk | [18] |
| The Surrender Decision | [27] |
| Approach to judicial review | [32] |
| Grounds of review | |
| First cause of action: error of law — mandatory restrictions | [34] |
| Second cause of action: error of law — discretionary restrictions | [37] |
| Third cause of action: unreasonableness | [39] |
| Abandonment of fourth and fifth causes of action | [40] |
| Sixth cause of action: refusal to charge and prosecute in New Zealand | [43] |
| Proposed seventh cause of action | [44] |
| The Commissioner's decision not to charge Mr Dotcom in New Zealand | |
| Submissions | [46] |
| Evidence of the Assistant Commissioner | [50] |
| Legal principles relating to prosecutorial decisions | [54] |
| Analysis | [62] |
| Minister's consideration of the decision not to prosecute Mr Dotcom domestically | |
| Submissions | [76] |
| Forum bar: comparative jurisdictions | [83] |
| Analysis | [89] |
| Minister's consideration of disproportionately severe treatment | [94] |
| Disparity between sentence in New Zealand and the United States | [100] |
| Irreducible life sentence | [124] |
| Impact of United States forfeiture regime on fair trial rights | [133] |
| Bad faith | [138] |
| Alleged breach of art IX of the Treaty and abuse of process | [144] |
| Undue delay | [148] |
| Mr Dotcom's Health | [152] |
| Adjournment application and procedural matters | [161] |
| Application for leave to file the amended statement of claim | [173] |
| Further affidavits | [181] |
| Conclusion | [184] |
| Costs | [187] |
In 2012 the United States requested the extradition of Mr Kim Dotcom from New Zealand to face charges of copyright infringement, money laundering, and wire fraud, in relation to his company, Megaupload Ltd.
On 4 November 2020, the Supreme Court of New Zealand held that Mr Dotcom was eligible for surrender to the United States on 12 charges. 1
On 8 August 2024, the Minister of Justice (the Minister) determined that Mr Dotcom should be surrendered to the United States to face trial on the 12 charges. 2 By letter dated 12 August 2024, the Minister set out his reasons for the decision and attached a surrender order made under the Extradition Act 1999 (the Surrender Decision). 3
Mr Dotcom now seeks judicial review of the Surrender Decision. He points to a significant disparity between the sentence he might face if he is found guilty on the charges in the United States, and the domestic sentences imposed on his alleged co-offenders in New Zealand. Mr Dotcom also seeks judicial review of the decision of the Commissioner of Police (the Commissioner) not to lay charges against him in New Zealand, thereby leaving him open to extradition under the Treaty on Extradition between New Zealand and the United States of America (the Treaty). 4 He contends that this was unlawful, and the Commissioner made the decision based on political and other irrelevant considerations.
At the beginning of the hearing, I dealt with a number of applications, including an application for adjournment. I set out the reasons for declining that application, as well as the reasons for my decision to allow in part an application for Mr Dotcom to amend his statement of claim, at the end of this judgment. 5
The Extradition Act, together with relevant extradition treaties, promotes the public interest in maintaining a network of mutual assistance between states, to ensure that “suspected offenders who flee abroad [are] brought to justice”. 6
Various mandatory and discretionary restrictions are imposed on surrender decisions. 7 These restrictions are derived from fundamental principles and rights contained within various international covenants ratified by New Zealand. They are also reflected to some extent in the rights and freedoms affirmed under the New Zealand Bill of Rights Act 1990 (NZBORA). 8
In relation to New Zealand and the United States, the Treaty entitles each party to seek to extradite persons who have been charged with or convicted of a qualifying offence in the requesting country. The United States may seek the surrender of a person by instigating a request to the New Zealand Minister of Justice through diplomatic channels. 9 This triggers the provisions of the Extradition Act. The Minister may seek that the District Court issue a warrant for the arrest of the person. 10 There follows a process of determination as to whether the person is eligible for surrender. This requires consideration by the District Court of the matters set out in s 24 of the Extradition Act. The Court must examine the offences for which extradition is sought and determine whether there are equivalent offences for which the person could be charged in New Zealand. In addition, it must be satisfied that none of the
If the Court decides the person is eligible, the Minister is empowered to determine whether that person should be surrendered. 12 The circumstances in which a person must not or may not be surrendered are set out in s 30, which relevantly provides:
30 Minister must determine whether person to be surrendered
(1) If the court issues a warrant for the detention of a person under section 26(1)(a) or section 28(2)(a), the Minister must determine in accordance with this section whether the person is to be surrendered.
(2) The Minister must not determine that the person is to be surrendered—
(a) if the Minister is satisfied that a mandatory restriction on the surrender of the person applies under section 7; or
(ab) if the Minister is satisfied that a mandatory restriction on the surrender of the person applies under the provisions of the treaty (if any) between New Zealand and the extradition country; or
(b) if it appears to the Minister that there are substantial grounds for believing that the person would be in danger of being subjected to an act of torture in the extradition country; or
…
(3) The Minister may determine that the person is not to be surrendered if—
(a) it appears to the Minister that the person may be or has been sentenced to death by the appropriate authority in the extradition country, and the extradition country is unable to sufficiently assure the Minister that—
(i) the person will not be sentenced to death; or
(ii) if that sentence is or has been imposed, it will not be carried out; or
(b) it appears to the Minister that a discretionary restriction on the surrender of the person applies under section 8; or
…
(d) without limiting section 32(4), it appears to the Minister that compelling or extraordinary circumstances of the person including, without limitation, those relating to the age or health of the person, exist that would make it unjust or oppressive to surrender the person; or
(e) for any other reason the Minister considers that the person should not be surrendered.
…
(6) For the purposes of determining under this section whether the person is to be surrendered, the Minister may seek any undertakings from the extradition country that the Minister thinks fit.
Sections 7 and 8 of the Extradition Act provide restrictions on the ability to surrender:
7 Mandatory restrictions on surrender
A mandatory restriction on surrender exists if—
(a) the offence for which the surrender is sought is an offence of a political character; or
(b) the surrender of the person, although purportedly in respect of an extradition offence, is actually sought for the purpose of prosecuting or punishing the person on account of his or her race, ethnic origin, religion, nationality, sex, or other status, or political opinions, or for an offence of a political character; or
(c) on surrender, the person may be prejudiced at his or her trial or punished, detained, or restricted in his or her personal liberty by reason of his or her race, ethnic origin, religion, nationality, sex, or other status, or political opinions; or
…
(e) the person has been acquitted or pardoned by a competent tribunal or authority in the extradition country or New Zealand, or has undergone the punishment provided by the law of that country or New Zealand, in respect of the extradition offence or another offence constituted by the same conduct as constitutes the extradition offence; or
…
8 Discretionary restrictions on surrender
(1) A discretionary restriction on surrender exists if, because of—
(a) the...
