19.05.06 United States Submissions PDF

IN THE SUPREME COURT OF NEW ZEALAND
I TE KŌTI MANA NUI SC57/2018
BETWEEN KIM DOTCOM
Applicant
AND THE UNITED STATES OF AMERICA
Respondent
SC58/2018
BETWEEN KIM DOTCOM
Applicant
First Respondent
AND THE DISTRICT COURT AT NORTH

SHORE
Second respondent
SUBMISSIONS OF COUNSEL FOR THE UNITED STATES OF AMERICA
6 May 2019
CROWN LAW
TE TARI TURE O TE KARAUNA
PO Box 2858
WELLINGTON 6140
Tel: 04 472 1719
Contact Person:
K Raftery QC / D Boldt / F Sinclair / Z Fuhr
raftery99@gmail.com / david.j.boldt@gmail.com /
fergus.sinclair@crownlaw.govt.nz / zoe.fuhr@crownlaw.govt.nz
SC56/2018
BETWEEN MATHIAS ORTMANN
First applicant
AND BRAM VAN DER KOLK
Second Applicant
Respondent
SC54/2018
BETWEEN MATHIAS ORTMANN
First applicant
AND BRAM VAN DER KOLK
Second Applicant
AND FINN HABIB BATATO
Third Applicant
First Respondent
AND THE DISTRICT COURT AT NORTH

SHORE
Second respondent
SC55/2018
BETWEEN FINN HABIB BATATO
Applicant
Respondent
5193199_1
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CONTENTS
INTRODUCTION .....................................................................................................................5
Scope of the appeals.....................................................................................................................6
The United States charges ...........................................................................................................7
Summaries of the alleged offending ..........................................................................................9
The appellants’ continued attack on the prima facie case ......................................................9
The appellants’ “gaping hole” thesis ................................................................................. 10
The “dumb pipe” defence .................................................................................................. 10
Notice and takedown issues ............................................................................................... 13
Multiplication of URL links pointing to the same file - the “deduplication”
defence ................................................................................................................................... 14
“Generalised knowledge” ................................................................................................... 16
PART ONE: THE TWO QUESTIONS ON WHICH LEAVE WAS GRANTED ... 18
QUESTION ONE: Was the High Court Judge correct to find that the essential
conduct with which the appellants are charged in each count constitutes an
extradition offence for the purposes of s 24(2)(c)? .............................................................. 18
Defining the conduct alleged.............................................................................................. 19
An example: the Count 2 copyright conspiracy and the pathway under s 249(1) of
the Crimes Act 1961 ............................................................................................................ 20
Is the Copyright Act a “code”, such that copyright fraud may only be charged
under s 131? .......................................................................................................................... 23
Copyright infringement charged as fraud – United Kingdom practice........................ 26
United States practice .......................................................................................................... 28
Generalia specialibus non derogant ................................................................................... 29
QUESTION TWO: Was the High Court Judge correct to conclude that copyright in
a particular work does not form part of the accused person’s conduct constituting
the extradition offences correlating to Counts 4-8, and to conclude that proof of this
is not required for the purposes of s 24(2)(d) of the Extradition Act. Rather, it is a
circumstance transposed when determining whether the offence is an extradition
offence......................................................................................................................................... 31
Overview ............................................................................................................................... 31
Section 24(2)(c) – is the conduct constituting the offence an extradition
offence? ............................................................................................................................ 31
Section 24(2)(d) – is there evidence of the conduct constituting the offence?...... 32
Two United States submissions ......................................................................................... 33
First submission: the status of the Megaupload files is not “conduct” .................. 34
Second submission: if copyright status does form part of the relevant conduct
to be proved, there is prima facie evidence from which status and infringement
can be inferred................................................................................................................. 39
PART TWO: THE DECISION TO OVERRULE UNITED STATES OF
AMERICA V CULLINANE ................................................................................................ 41
Introduction ............................................................................................................................... 41
Summary ..................................................................................................................................... 42
Double criminality ..................................................................................................................... 44
Extradition treaties .................................................................................................................... 47
The New Zealand – United States Treaty.............................................................................. 51
Factor v Laubenheimer................................................................................................................... 53
Subsequent New Zealand treaties ........................................................................................... 55
Section 4 of the Extradition Act ............................................................................................. 56
Article IX of the Treaty ............................................................................................................ 57
United States of America v Cullinane ............................................................................................ 58
The present case ........................................................................................................................ 60
3
The 1965 Act .............................................................................................................................. 62

The 1999 Act .............................................................................................................................. 64
Application of the Treaty if double criminality is required ................................................. 65
Application of the Treaty without a double criminality requirement ................................ 66
Count 3: Conspiring to Commit Money Laundering ........................................................... 67
PART THREE: JUDICIAL REVIEW PROCEEDINGS: AN ABUSE OF
PROCESS................................................................................................................................... 70
The “nullity” issue ..................................................................................................................... 70
Judicial review and the Extradition Act ................................................................................. 72
No appeal right in the 1965 Act ................................................................................... 73
Right of appeal introduced in 1999 .............................................................................. 73
Part 8 and its limits ......................................................................................................... 75
The judicial review proceedings .............................................................................................. 76
The appeal .................................................................................................................................. 78
The law ........................................................................................................................................ 80
PART FOUR: WHY THE CONDUCT OF MEGAUPLOAD AND THE
APPELLANTS FALLS WITHIN S 131 COPYRIGHT ACT 1994 ................................ 83
Introduction ............................................................................................................................... 83
International obligations ........................................................................................................... 84
“Object” in the Court of Appeal analysis .............................................................................. 84
“Copying” and “object” ........................................................................................................... 85
Copying, storing, and “online dissemination” of protected works .................................... 87
The offence of possessing an infringing copy with a view to committing any act
infringing copyright – s 131(1)(c) ............................................................................................ 88
The 2008 amendments ............................................................................................................. 89
Background to the amendments................................................................................... 89
Transient reproduction/communication .................................................................... 89
The ISP provisions............................................................................................................... 90
Why there was no amendment to s 131 in 2008 ........................................................ 93
Possession ................................................................................................................................... 95
The offence of distributing an infringing copy – s 131(1)(d) .............................................. 98
WIPO Copyright Treaty and TRIPS .................................................................................... 101
Summary ........................................................................................................................ 101
WIPO ............................................................................................................................. 101
TRIPS ............................................................................................................................. 102
The WCT commentary on “distribution” ................................................................. 102
The Berne Convention................................................................................................. 104
The time bar in s 131A of the Copyright Act ..................................................................... 104
Time bar not relevant to Question 1 ......................................................................... 104
Continuing offences ..................................................................................................... 105
Section 131A would not apply to a prosecution under s 131, laid indictably ...... 106
PART FIVE: OTHER MATTERS ...................................................................................... 107
Jurisdiction of the Extradition Court ................................................................................... 107
Mr Batato’s Appeal .................................................................................................................. 108
Section 24(2)(d)(i) ............................................................................................................... 108
Section 24(2)(c) ................................................................................................................... 109
Costs .......................................................................................................................................... 109
APPENDIX: NON-TREATY PATHWAYS TO EXTRADITION ............................ 110
Count 1: Conspiracy to Commit Racketeering ................................................................... 110
Count 2: Conspiracy to Commit Copyright Infringement ................................................ 111
Counts 4-8: Discrete Acts of Copyright Infringement (and Aiding and Abetting
Copyright Infringement) ........................................................................................................ 114
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Counts 9-13: Fraud by Wire (and Aiding and Abetting Fraud by Wire) ......................... 117
INTRODUCTION
1. Before the appellants’ arrest in 2012, Megaupload provided a service that gave
access to a vast array of copyright works in digital form. Users could
download or stream a near limitless range of commercial films, television
series, albums, games, software and other original works. The breadth of its
holdings is illustrated by a remark made by Mr Ortmann – in the event of a
nuclear war, Megaupload “could serve as a pretty complete archive of the
world’s intellectual property for a coming generation.” 1
2. Unlike today’s legitimate streaming services, however, Megaupload held the

rights to none of the material on its platform, and none of the immense
revenues it generated were returned to the artists and creators who owned the
intellectual property in those works. Right holders protested constantly, and
lodged millions of requests for offending content to be taken down. The
company, conscious that it made its money from infringing content, sought to
disguise the availability of this material on its sites. Among other things, it
sought to deceive the rights holders into believing offending files had been
removed, while at the same time ensuring all the content remained available to
users. At one stage, Megaupload claimed to have one billion users and account
for 4% of the world’s internet traffic.
3. Rights holders sustained many hundreds of millions of dollars in losses, while

Megaupload’s enormous profits went into the pockets of its shareholders and
officers, four of whom are the appellants in this Court. The Court of Appeal
noted that the evidence before it disclosed “a clear prima facie that the
appellants conspired to, and did, breach copyright wilfully and on a large scale,
for their commercial gain”. 2
4. The appellants face multiple charges in the Eastern District of Virginia arising
from the sophisticated and large-scale fraud Megaupload represented. They
strenuously resist extradition. In doing so, they have attacked (and, despite the
limited scope of the present appeal, continue to attack) almost every aspect of
the case against them.
1 Record of the Case (ROC) First Supplement at [103(aa)] [B-0958].

2 Ortmann v United States of America [2018] NZCA 233 [CA judgment] at [325] [SC.001.118].
5193199_1
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Scope of the appeals

5. The approved question, coupled with this Court’s direction of 21 December
2018, means that the issues to be determined are:
5.1 Did the Court of Appeal correctly answer Questions 1 and 2,

authorised by the High Court?
5.2 Did it correctly dismiss the judicial review applications as an abuse of

process?
6. Question 1 addresses s 24(2)(c) of the Extradition Act 1999, 3 i.e. whether the
appellants are sought for extradition offences. It does not turn on any matter
of proof. It is resolved by distilling the relevant conduct alleged by the United
States, and measuring that against an offence named in the New Zealand –
United States Extradition Treaty (“the Treaty”)4 (and a s 4 New Zealand
offence, 5 if United States of America v Cullinane was correctly overruled). 6 This is
a confined exercise. In this case, there is little need to go beyond the
superseding indictment to understand the conduct allegations.
7. Question 2 concerns one aspect of the evidential requirements for eligibility, in

s 24(2)(d)(i) of the Extradition Act 7 – i.e. the extent of permissible
“transposition”. Its application is limited. The distinction between (i) the
conduct that must be proved by evidence and (ii) the transposable things to
which that conduct relates – here copyright infringing files – affects only one
of several pathways for Counts 4-8.
8. The special leave applications enabled the appellants, over the course of a two-
week hearing, to raise any issue concerning the satisfaction of s 24(2)(d)(i).
Having heard the appellants, the Court of Appeal concluded their arguments
about evidential sufficiency “lack merit” and refused special leave. 8 For any
pathway that meets s 24(2)(c), the Court described the lower courts’ conclusion
that there was sufficient evidence to justify committal for trial as “manifestly
3 Extradition Act 1999, s 24(2)(c) [US-AUT-001-0019].

4 Treaty on Extradition between New Zealand and the United States of America 1970, set out in Extradition
(United States of America) Order 1970 at 3 [US-AUT-002-0088].
5 Extradition Act 1999, s 4 [US-AUT-001-0009].
6 United States of America v Cullinane [2003] 2 NZLR 1 (CA) [US-AUT-009].
7 Extradition Act 1999, s 24(2)(d)(i) [US-AUT-001-0019].
8 CA judgment at [268] [SC.001.104].
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correct”, and added that the Record of the Case (ROC) “discloses a clear prima
facie case that the appellants conspired to, and did, breach copyright wilfully
and on a large scale, for their commercial gain.” 9 This finding cannot be the
subject of further challenge. 10 The same is true of all the remaining questions
of law, including those relating to the stay applications.
9. The questions of law in the judicial review applications overlapped with those
in the Extradition Act appeals. The appellants argue the statutory appeal
procedure imposes an “undue fetter” and judicial review is needed to reopen
examination of evidential issues. 11 This is to use review as a means of
subverting the statutory scheme, and it is a further abuse of process.
The United States charges

10. Seven men are named in the superseding indictment. They were all officers of
Megaupload and its satellite businesses. Four of those named in the
indictment are in New Zealand, and they are of course the appellants. A fifth
man, Andrus Nomm, was convicted in the United States and has already
served his sentence. His evidence, which confirms the existence of the
copyright conspiracy, is summarised in the sixth and seventh ROC
supplements.
11. The superseding indictment alleges three conspiracy offences: 12
11.1 The appellants agreed to run Megaupload in such a way that they
would be knowingly infringing copyrights for financial gain. (Count
2: conspiring to commit copyright infringement.)
11.2 There was an associated agreement to deal with the money so

received by Megaupload. (Count 3: conspiring to commit money
laundering.) 13
9 CA judgment at [325]; see also [265] [SC.001.118].

10 Simpson v Kawerau District Council (2004) 17 PRNZ 358 (SC) at [5] [US-SCA-001-2668].
11 Synopsis of submissions for Messrs Ortmann and van der Kolk at D2.0.
12 Superseding Indictment at [52] (Count 2) [B-0488]; [75] (Count 3) [B-0524]; [47]-[48] (Count 1) [B-0484].
13 As the Full Court observed in United States of America v Griffiths [2004] FCA 879 at [122] [US-AUT-020-1045]:“…
it is not correct to say that conspiracy to breach copyright in the jurisdiction of the requesting state is an unusual
kind of extradition offence.” Nor is it unusual for laundering to be charged together with a conspiracy to defraud
in the context of copyright offending. See also R v Dady [2013] EWHC 475 (QB), [2013] Lloyd’s Rep FC 300
[KD-AUT.335] and Scopelight Ltd v Chief Constable of Northumbria Police Force [2009] EWCA Civ 1156, [2010] QB
438 [US-SCA-002].
8
11.3 The appellants agreed to conduct themselves in ways that fall within
the United States concept of racketeering (our organised criminal
group offence). This involved the formation of an enterprise with the
intention of committing multiple criminal acts: criminal copyright
infringement, laundering, wire fraud. (Count 1: conspiring to
commit racketeering.)
12. There are then five examples of the appellants knowingly distributing particular
infringing files that embodied copyright infringing copies. (Counts 4-8:
criminal copyright infringement). 14 These are also overt acts of the
conspirators. For the conduct analysis, the distribution is necessarily
accompanied by possession. These charges also allege aiding and abetting.
12.1 Two counts, 4 and 8, involve direct acts by the appellants:
12.1.1 Count 4 concerns Mr van der Kolk’s uploading and

distribution of a pre-release copy of the film “Taken” (with
the revealing file name “…. DVDrip”).
12.1.2 Count 8 describes the mass acquisition of YouTube clips, in

breach of the owners’ copyright in those works. This was
primarily done to sanitise the public pages of Megavideo and
falsely suggest that its content was “user generated”. In fact,
traffic to the site was overwhelmingly to commercial
content, via the third party linking sites that served as the de
facto index of Megaupload – the so called “private back
end”. 15
12.2 The remaining counts, 5-7, involve files uploaded by other parties but
distributed by Megaupload. Copyright takedown notices are part of
the prima facie evidence that Megaupload continued to host and
distribute these files with knowledge that they infringed copyright.
14 Superseding Indictment at [93] (Count 4) [B-0534]; [94] (Count 5) [B-0535]; [95] (Count 6) [B-0536]; [96]
(Count 7) [B-0537]; [97] (Count 8) [B-0538].
15 27.2 billion views – roughly 77% of the total views for Megavideo – were through links that had been created by
users who had a least one takedown notice lodged against their content. 56.16% of the total views were to the
content of 19,091 users who had ten or more takedown notices lodged against their content. Takedown notices
are only a reflection of the infringing content actually detected by copyright owners, therefore these figures will
understate the true volume of infringing content available: Supplementary Materials Volume 2 at [110]-[113] [US-
SUB.02b].
9
13. Finally, there are five examples of acts of wire fraud (Counts 9-13, also overt
acts). In response to takedown requests, deceptive messages were sent so that
copyright owners were deflected from taking further action. The owners were
told that files had been removed, but instead Megaupload retained the files and
continued to make them available through remaining URL links. This was
another dimension of the conspiracy. In the first place it depended on
attracting and “monetising” infringing content. There was a corresponding
need to ensure the content remained available to users. The wire fraud
deceptions frustrated the owners’ attempts to protect their property rights.
Summaries of the alleged offending

14. For orientation purposes, it may be helpful to refer to the outlines provided in
the decisions of the High Court and Court of Appeal. 16 A simple statement of
the United States’ case is found in its High Court submissions at [6]-[85] and
[99]-[125]. 17 Reference to Volume 2 of the United States’ District Court
submissions may also assist. 18 The ROC was periodically supplemented in the
three-and-a-half years between 2012 and the extradition hearing, though this
process was substantially completed by October 2013. Volume 2 reorganises
this material in a thematic way and provides some commentary. It discusses
the basic features of how Megaupload operated and covers subjects that are
too detailed to summarise here – for example, the relationship between
Megaupload and third party linking sites. 19 The ROC has a glossary which
20
may also be a useful aid.
The appellants’ continued attack on the prima facie case

15. For reasons already stated, questions of evidence are not engaged in these
appeals. The appellants nevertheless make submissions on evidential matters
that are not properly before the Court. These create the misleading impression
that the United States case on s 24(2)(d)(i) stands on a pinhead. The “whole
case”, they contend, rests on a misconception about notice and takedown
obligations. They submit there is a “gaping hole” because the United States
has failed to prove, for any particular copy, that it infringes copyright under
16 Ortmann v United States of America [2017] NZHC 189 at [11]-[20] [CA.1.0008] and [311]-[338] [CA.1.0104] [HC
judgment]; CA judgment at [6]-[17] [SC.001.006].
17 Submissions of Counsel for the United States, 25 July 2016 at [6]-[85] and [99]-[125] [US-SUB.02].
18 Supplementary Materials Volume 2 [US-SUB.02b].
19 At 77-94 [US-SUB.02b].
20 ROC Fifth Supplement, Exhibit A [B-1107].
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United States and New Zealand law – and that hole cannot be filled by
“transposition”. And they submit that the only relevant conduct was that of
individual users. The appellants themselves had no knowledge of particular
infringements. They simply provided a service which others misused.
Consequently, they only had general knowledge that the site was being used to
infringe copyright, and the effect of the prosecution is to imply that all file
hosting services are conspiracies.
16. To negate the misleading impression that may otherwise be conveyed, a brief
response is given to these contentions.
The appellants’ “gaping hole” thesis

17. The copyright conspiracy in Count 2 does not depend upon a “work by work”
analysis. 21 The courts below rejected the “gaping hole” argument by reference
to elementary features of the law of conspiracy. 22
18. Only Counts 4-8 concern the status of particular infringing copies and here:
18.1 That status may either be transposed; or
18.2 May be inferred from the evidence described in the ROC.
The “dumb pipe” defence

19. The appellants portrayed Megaupload as a neutral “cyberlocker”. They
maintained they provided a service which users could use legitimately or
unlawfully, but they were not responsible if users chose to use the Mega
architecture improperly. They might have had some general awareness that
infringements were occurring on their sites, but no specific knowledge which
obliged them to act.
20. This is the “dumb pipe” cover story, which the appellants recycle in
submissions to this Court. Mr Ortmann referred to it in those terms when
21 A submission related to the “gaping hole” thesis is that all the counts are dependent upon proof of infringement
of particular copyright works. This is not so. Count 2 does not concern the status of any particular file. The
agreement to commit the offence in Count 3 can be established in the same manner as the copyright conspiracy,
without proof of any particular infringement. The Crimes Act pathways for Counts 4-8 do not rest on proving
the status of particular files. The wire fraud counts do not depend on proof of infringement or a “predicate”
offence of criminal copyright infringement. The fraud lies in issuing deceptive statements to continue exploiting
the property right of another.
22 CA judgment at [163]-[167] [SC.001.071]; HC judgment at [306] [CA.1.0102].
11
discussing the redirection of links to pornographic files from Megaupload.com

to Megarotic.com: 23
ORTMANN then said, “yes... we could, however, also be shooting

ourselves in the foot with this, as it proves that we looked at the file,”
“and therefore are not the dumb pipe we claim to be.” ORTMANN also
said, “copyright owners may use this against us.” VAN DER KOLK
responded, “dangerous move indeed.
21. Megaupload performed some token auditing procedures when files were
uploaded, but these were actually aimed at allowing copyright infringing
material onto the site. And so we find this exchange:
Then VAN DER KOLK said, “but it’s good to stay off the radar by
making the front end look like crap while all the piracy is going through
direct links & embedded.”24 And ORTMANN added, “the important
thing is that nobody must know that we have auditors letting this stuff
through.” VAN DER KOLK responded, “yes that’s very true also.”
ORTMANN replied, “if we had no auditors – full DMCA protection,
but with tolerant auditors, that would go away.”
22. Far from running a neutral cyberlocker, the appellants were directly involved in
obtaining, distributing and preserving files they knew were infringing copies of
copyright works. This is apparent from many subjects covered in the ROC.
Perhaps the simplest example is the operation of the Megaupload rewards
programme, 25 which shows the appellants to have:
22.1 Paid rewards to users based on traffic to files that the appellants knew
infringed copyright; 26
22.2 Directly assisted the “repeat infringers” who were responsible for
uploading such files; 27
23 Supplementary Materials Volume 2 at [66] [US-SUB.02b].

24 “Embedded” refers to the embedded player function, which the ROC Second Supplement at [107(a)] explains in
this way: “… members of the Mega Conspiracy permitted users of the Mega Sites to “embed” videos on third-
party websites. Embedded videos were hosted on, that is, reproduced and distributed by, the Mega Sites but
could be viewed and accessed from third-party linking sites. In other words, users could view Mega-hosted
videos on third-party linking sites, but the Mega Conspiracy maintained direct control over the distribution of the
underlying video file.” [B-0976] As [107] explains, this was an important feature in massively increasing the
traffic to infringing copies hosted by Megaupload. See also [104(h)]: “… “we did some things right… we allowed
fraud for a long time, fueling (sic) our growth… then we forced our own player, making us explode…” [B-0965].
25 Supplementary Materials Volume 2 at 34-69 [US-SUB.02b].
26 For example: “On or about 8 November 2009, via Skype, VAN DER KOLK and ORTMANN discussed a
rewards payment of $175,600.” VAN DER KOLK said, “it’s still very fine in relation to our costs / income /
profit if you think about it,” because “these users are making it happen.” ORTMANN asked VAN DER KOLK
about a particular repeat infringer and unindicted conspirator, referred to as LR in the ROC First Supplement at
[53] [B-0872], “is that a big contributor,” and VAN DER KOLK responded, “more than 70M" video views.”
ORTMANN replied, “not bad :)” VAN DER KOLK offered, “but we can skip him if you want :)” and
ORTMANN replied, “nono :)” “70M video views are worth up to 150K.” ROC Second Supplement at [106(v)]
[B-0976].
12
22.3 Personally examined the portfolios of repeat infringers before making

payments; 28
22.4 Calculated the income they derived from the content uploaded by
repeat infringers. 29
23. Rewards were the incentive to publish Megaupload’s URL links on the
internet, in particular on the third party linking sites which served as the de
facto indices of Megaupload’s content. They are the analogue of the payments
for the unauthorised films in Scott v Metropolitan Police Commissioner. 30 The scale
of the phenomenon is suggested by a conversation in which Mr Ortmann
observed that a certain repeat infringer “probably has 100% fraudulent files in
his account.” 31 Mr van der Kolk responded: “most likely,” “that’s the big
flaw in the rewards program” — “we are making profit of more than 90%
infringing files”. 32 Mr Dotcom called the rewards programme their “growth
motor”. 33 When he cancelled the programme in 2011 (the timing suggests
alarm at the prosecution of a German site), he was quick to accuse of “criminal
activity” other sites which persisted with the payment of incentives. 34
24. The copyright conspiracy could be established by reference to this single theme
in the United States evidence. The appellants pretend the issues in the case are
all to do with their response to takedown notices issued by copyright owners.
They do not wish to dwell upon how Megaupload acquired much of its
content in the first place.
27 Supplementary Materials Volume 2 at [139]-[141] [US-SUB.02b]. See also TE, “a known infringer”, who was a
placed on a “white list” that meant his content became available instantly and bypassed any auditing: at [178]-
[185].
28 At [135]-[138] [US-SUB.02b].
29 For example: “On or about March 15, 2007, via Skype, DOTCOM asked ORTMANN, in German, “can you tell
me how many premium accounts dear [TH] brought us? ORTMANN responded, “the analysis will take
approximately 2 hours, I’ll work on that right away.” The following day, via Skype, ORTMANN said to
DOTCOM, “morning...so far [TH] has provided us: -18 Million Download-Pageviews -112257 USD Premium-
Sales to users who have downloaded at least 15 of his files.” DOTCOM responded, “112257????” ORTMANN
then said, “yep, those are the global nguyens.” “Nguyen” is a common Vietnamese surname. ROC Second
Supplement at [108(d)] [B-0980].
30 Scott v Metropolitan Police Commissioner [1975] AC 819 (HL) [US-AUT-125].
31 ROC Second Supplement at [106(j)] [B-0972].
32 At [106(j)] [B-0972].
33 At [106(k)] [B-0972].
34 Supplementary Materials Volume 2 at [147]-[154] [US-SUB.02b].
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Notice and takedown issues

25. The appellants observe that the notice and takedown regime in the Copyright
Act 1994 is modelled on the United States Digital Millennium Copyright Act
(DMCA). Both statutes confer “safe harbour” from civil liability when an
internet service provider (ISP) is served with a takedown notice asserting the
claimant’s copyright has been infringed. A specific file or files will commonly
be identified by means of a URL link. The “safe harbour” depends on the ISP
taking action to stop the infringement. Section 92C(2)(a) of the Copyright Act
provides that an ISP does not infringe copyright unless it “(i) knows or has
reason to believe that the material infringes copyright in the work; and (ii) does
not, as soon as possible after becoming aware of the infringing material, delete
the material or prevent access to it.” 35 Subsection (3) makes receipt of a notice
of infringement relevant to the assessment of knowledge.
26. There is no dispute that Megaupload did not delete a file on receiving such
notice, or remove all access to it. It disabled the URL link or links identified in
the notice, but continued to host the file and provide access through other
remaining links, or links yet to be created. For extradition purposes, this
concedes the prima facie case for the knowledge/dishonesty elements in
offences corresponding to Counts 5-7. Megaupload has acknowledged the
validity of the notice by deleting the specified URL, but it has continued to
possess the file with a view to continued distribution and it now has prima
facie knowledge that the file infringes copyright.
27. This notice and takedown procedure was relevant to the prima case in two
ways:
27.1 For Count 2, the deliberately ineffective response to takedown

notices was only one strand of evidence, among many others, which
established the agreement to infringe copyright. A related issue was
the appellants’ practice of disguising the continued availability of
infringing files after receipt of notices. 36 But the offences
corresponding to Count 2 could be prima facie established without
any reference to this subject.
35 Copyright Act 1994, s 92C(2)(a) [US-AUT-006-0324].

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27.2 For Counts 5-7, the United States relied on the appellants’ receipt of
notices to establish prima facie knowledge of the infringing copies
identified in those charges. The notice is relevant to knowledge,
which is exactly how the Copyright Act treats it.
28. Manifestly this was not the “whole of the United States case” and was not
understood by Gilbert J in that way. Ms Gordon’s remark was made in the
context of its “case” about the appellants knowing distribution of specific
infringing files – no more than that. 37
29. Megaupload received millions of takedown notices identifying specific

copyright infringing files. This is another flaw in the appellants’ claim that they
only had generalised knowledge of infringement. The Court of Appeal
considered that “an inference of dishonesty from the responses to take-down
notices is potentially available.” 38
Multiplication of URL links pointing to the same file - the “deduplication”

defence
30. The appellants submit that they were justified in preserving access to files
identified by takedown notices. This justification rests on the proposition that
the same unique file could be both one person’s “legitimate” copy (accessed by
one URL link), and another person’s infringing copy (accessed by other URL
links).
31. The United States evidence was that this was not a situation that could arise in
practice. If user A “ripped” a DVD of “Lord of the Rings” to a digital file,
and uploaded it to Megaupload, that unique file (unique MD5 hash) 39 would be
stored. Provided A did not publish the link on the internet, it is most unlikely
a copyright owner would ever detect the copy. (This act of creating a so-called
“backup” DVD copy is not authorised by the New Zealand statute anyway.)
36 This was not confined to the deceptive responses to individual takedown notices, which the wire fraud charges
(Counts 9 -13) serve to illustrate. See also the deception of Paypal and the USTR, discussed in Supplementary
Materials Volume 2 at [278]-[282] [US-SUB.02b].
37 Earlier in her presentation, Ms Gordon emphasised that the notice and takedown issue was only one strand in the
United States case. See HC transcript at 1298.
38 CA judgment at [260] [SC.001.102].
39 The processes described here and their implications are discussed in ROC at [7] [B-0167], ROC First Supplement
at [45] [B-0885], and ROC Second Supplement at [102] [B-0951]. The ROC at [7] states: “… Once that user
has selected a file on their computer clicks the ‘upload’ button, the Mega Conspiracy’s automated system
calculates a 32-digit unique identification number for the file (called an ‘MD5 hash’) that is generated using a
mathematical algorithm….”
15
32. If a different user, B, performed the same exercise, the Megaupload system
would recognise this is as a different file (different MD5 hash, though also
embodying “Lord of the Rings”) and store of a copy of that. This is why
Megaupload stored multiple files that embodied “Lord of the Rings”. 40
32.1 If B published their link on the internet, it might be detected by the

copyright owner. But deletion of B’s file would not affect A’s file.
32.2 B could generate more links to the same file by repeated uploads. On
each occasion the same unique file (identical MD5 hash) would be
detected. A new URL would be created, but no further copy would
be stored on Megaupload’s servers. 41 (The “good thing,” said
Mr Ortmann in 2008, “is that reuploaded videos convert instantly,”
“nice for repeat infringers”. Mr van der Kolk replied “yes,”
“especially nice with the Mega Manager”.) 42
32.3 B’s published link might be used by other persons to download and
upload the same unique file. In this way, more than one user might
have a link pointing to the same file, but the point is that the origin of
these links will not lie with the creation of a putative “backup”, so
there is no justification for continuing to host the file.
33. There is no need to go further into this issue because it only arises under
s 24(2)(d)(i) of the Extradition Act and the fresh evidence applications. A few
points are noted in passing:
33.1 The appellants did not believe in their justification and never revealed
their practice of continuing to host and distribute files after takedown
notices were served and acknowledged. As the wire fraud counts
40 ROC Fifth Supplement at [162(a)] and [162(b)] [B-1096]. See also Supplementary Materials Volume 2 at 212 (Tab
3E) [US-SUB.02b].
41 Repeat infringers created multiple links to defeat the takedown efforts of copyright owners. An example – the
repeat infringer BM - is given at ROC First Supplement at [49] [B-0894]. 7 September 2009: BM creates link to
computer software, “The Sims 2” (The file name includes the name “The Sims 2”. BM’s description of the file
refers to a named third party linking site. The software was downloaded more than 7,300 times via that link. 17
December 2009: Mr van der Kolk disabled the link after a takedown request for the file; the file remained
accessible via other links. 21 December 2009: BM creates another link; the software was downloaded 27,000
times via this link. 16 March 2010, takedown request via the Abuse Tool, manually processed by Mr van der
Kolk on 17 March 2010 – same result. 17 March 2010: BM creates another link, 87,000 downloads via this link.
1 September 2010, Mr van der Kolk processes another takedown notice, same result. 1 September 2010: BM
creates a further linked Mr van der Kolk later processed another takedown request, same result. 1 July 2011: BM
creates a further link which was still active on 19 January 2012. Megaupload received 1,500 takedown requests
for URL links created by BM. BM was never terminated.
42 ROC Second Supplement at [106(q)] [B-0975].
16
illustrate, the response was to deceive owners about the action they
took. If their practice was an “industry standard” as they claim, there
was no need to lie and say that files and content was removed – yet
the ROC shows them repeatedly doing this.
33.2 As discussed in Part Four below, this is really a defence within a

defence, as it is offered as a reason for not even complying with the
requirements for the safe harbour defence.
33.3 It is the subject of adverse factual findings in the courts below. 43
33.4 The ROC shows a failure to delete files even when only one user was
responsible for the uploaded files. No risk to another user’s files
could possibly exist in this situation. Thirteen examples are
provided. 44 Precautions were also taken to ensure no files were lost
through the deletion of all links. 45
33.5 Although the ripping technology and its implications were disputed in
evidence before the District Court, the resolution of that issue is
clearly a matter for trial. Mr Nomm, however, never saw an occasion
when different files had the same MD5 hash. 46
“Generalised knowledge”
34. The appellants had much more than a general awareness that others were using
Megaupload to infringe copyright. They were, in various ways, directly
involved in the process of infringement. A good example of this is the
dialogue over the setting of free viewing limits on Megaupload. These were set
to maximise the purchase of subscriptions. The calibration was explicitly tied
to the length of commercial films, and the point at which viewers would pay
Megaupload to continue watching to the end. 47 Another example is the
examination of each video file while preparing it for display on Megavideo. 48
43 See, for example, CA judgment at [260] and [284] [SC.001.102].

44 ROC Fifth Supplement at [167] [B-1101].
45 ROC at [39(b)] [B-0203].
46 ROC Sixth Supplement at [170(r)] [B-1133].
48 ROC Sixth Supplement at [170(r)] [B-1133].
17
35. The United States prosecution does not make conspirators out of all
businesses that provide hosting services on the internet. The honest ISP has
nothing to fear. For example, the honest executive officers of an ISP will not
be found, behind the scenes:
35.1 To discuss the need to encrypt their database and how they can defeat
“the justice system” when a court disables their server fleet in the
United States; 49
35.2 To say that “legit users” are “not what we make $ with :)”; 50 or
35.3 “[G]rowth is mainly based on infringement anyway :)”; 51 or
35.4 “99.999%” of their videos are not “legit”; 52 or
35.5 “If copyright holders would really know how big our business is they
would surely try to do something against it… they have no idea that
we’re making millions in profit every month.” 53
36. The appellants make the factual submission that their operations were akin to
YouTube’s and they invite comparison with the conduct described in Viacom
International Inc v YouTube Inc. 54 Disney Enterprises Inc v Hotfile Corp is a more
relevant United States decision. 55 Hotfile was a cloud storage business that
shared a number of common features with Megaupload. The appellants
56
viewed it as a competitor. After a summary judgment decision set aside its
claim to safe harbour, Hotfile ceased operations on 4 December 2013 and
made an $80m settlement with the Motion Picture Association of America. 57
Hotfile changed its conduct after being sued. For instance, immediately after
the litigation began, it adopted a “revamped” repeat infringer policy that saw
49 This is the skype conversation Gilbert J referred to at [337] [CA.1.0112]. In contending that “evil” was not an
accurate translation from the original German, Mr Dotcom supplied a more extensive extract from this skype
exchange, yet the passage becomes more incriminating with this additional material. The translation issues and
the implications of what are said are discussed in the Submissions of Counsel for the United States, 25 July 2016
at [758] [US-SUB.02].
50 Supplementary Materials Volume 2 at [76] [US-SUB.02b].
51 At [123] [US-SUB.02b].
52 At [44] [US-SUB.02b].
53 At [69] [US-SUB.02b].
54 Viacom International Inc v YouTube Inc 676 F 3d 19 (2d Cir 2012) [KD-AUT.206].
55 Disney Enterprises Inc v Hotfile Corp No 11 20427-CIV WL 6336286 (SD Fla Sept. 20, 2013) [US-AUT-059].
56 ROC Fourth Supplement at [148(d)(i)] [B-1075].
57 ROC Fifth Supplement at 289 [B-1108].
18
the termination of 22,447 users, including 444 out of 500 of the highest-paid
“affiliates”. 58 The Court observed: “… it is not too harsh an assessment to
conclude that when Hotfile received such [takedown] notices, it was Hotfile’s
practice to ignore them rather than act to terminate the users they were
associated with. This deliberate disregard is significant”. 59
37. This was also Megaupload’s practice: the ROC has many case studies of the
appellants paying rewards to conspicuous repeat infringers with one hand,
while processing takedown notices against their content with the other. An
example is RK whose content was the subject of 300,000 takedown notices
and who received 40 rewards payments. In one six month period, RK created
140,000 links which became the subject of copyright takedown notices. 60
38. The Court also remarked upon the policy of removing individual links but not
files, which was common to both businesses. It observed that Hotfile “may
have a difficult time explaining its ‘innocence’ to a jury” and added in a
footnote that this policy: 61
… may mean that Hotfile knew of particular infringing files and failed to
bar further access. Hotfile will also have to explain how, in each of these
instances, it was unaware of the offending nature of the activity, did not
intend to contribute to it, and could not utilize existing technology to
prevent infringement.
39. There is, of course, no suggestion that this policy was standard industry
practice. Nor did the appellants actually think that their sites were comparable
to YouTube. Mr Nomm wrote to Mr Ortmann in 2009: “I doubt youtube has
any open rips hehe,” “we have ONLY movies/etc, they have very less such
things;).” 62
PART ONE: THE TWO QUESTIONS ON WHICH LEAVE WAS GRANTED
QUESTION ONE: Was the High Court Judge correct to find that the essential
conduct with which the appellants are charged in each count constitutes an
extradition offence for the purposes of s 24(2)(c)?
40. It is respectfully submitted that the Court of Appeal correctly answered “yes”
to this question.
58 Disney Enterprises Inc v Hotfile Corp, above n 55, at [10] [US-AUT-059-2154].

59 At [21] [US-AUT-059-2164].
60 Supplementary Materials Volume 2 at 69 [US-SUB.02b].
61 Disney Enterprises Inc v Hotfile Corp, above n 55, at note 24 [US-AUT-059-2180].
62 ROC Second Supplement at [103(dd)] [B-0959].
19
41. This section of the United States’ submission proceeds according to the Court
of Appeal’s formula – i.e. that an extradition offence must be one that
complies with s 4 of the Extradition Act, 63 and is also named in the Treaty.
The s 4 requirement will fall away if this Court were to hold that the Court of
Appeal was wrong when it declined to follow United States of America v
Cullinane. 64
42. In this case, s 101B of the Extradition Act has truncated the Court’s
compound definition by deeming New Zealand offences to form part of the
Treaty. 65 The position will be different in future cases where s 101B deeming
is unavailable. As discussed below in Part Two, it is wrong to consider that an
original treaty offence, such as “conspiracy to defraud” in art II.16, 66 has
ceased to provide a pathway under s 24(2)(c).
Defining the conduct alleged

43. In the four stage analysis of the Court of Appeal, the second step, which
addresses s 24(2)(c), involved identifying the essential conduct alleged by the
United States in each count. 67 The House of Lords in Norris v Government of the
United States of America adopted the same approach in construing the equivalent
step in the United Kingdom Extradition Act 2003. 68 Mere narrative
background was to be set aside and account must be taken of “such allegations
as are relevant to the description of the corresponding United Kingdom
offence.” 69 It was necessary to ignore “adventitious circumstances connected
with the conduct alleged” and concentrate instead on the essence of the alleged
acts, to determine the substance of the criminality charged. 70
44. The focus at this stage was said in Cullinane to fall on “the totality of the acts or
omissions alleged to have been committed”. 71 There was a similar concern in
Edwards to identify the conduct which is the subject of the count in issue. 72

64 United States of America v Cullinane, above n 6 [US-AUT-009].
65 Extradition Act 1999, s 101B [US-AUT-001-0070].
66 New Zealand – United States Treaty 1970, art II.16 [US-AUT-002-0089].
67 CA judgment at [42] [SC.001.022].
68 Norris v Government of the United States of America [2008] UKHL 16, [2008] 2 WLR 673 [US-AUT-019]; Extradition
Act 2003 (UK) [MO-AUT.020].
69 At [91] [US-AUT-019-1014].
70 At [99] [US-AUT-019-1017].
71 United States of America v Cullinane, above n 6, at [3] [US-AUT-009-0548].
20
45. In Norris, Edwards and Cullinane the courts were prepared to consider all the
documents in the extradition request to identify the relevant conduct.
Reference was made, for instance, to the prosecutor’s affidavit. 73 In this case,
there is no need to look beyond the indictment, which provides a clear
summary of the essential conduct for each charge. 74
An example: the Count 2 copyright conspiracy and the pathway under s 249(1) of
the Crimes Act 196175
46. The conduct alleged in this count can be simply stated. The Court of Appeal
condensed it in this way, for the purposes of the pathway under s 131 of the
Copyright Act: 76
The United States alleges that the appellants, together with known and
unknown associates, conspired to use the Megaupload commercial
website and service (in the course of a business), to reproduce and
distribute infringing copies of copyright works. And they did so without
authorisation (for example, a copyright licence) but with knowledge that
they possessed or were dealing with infringing copies.
Or even more succinctly, for the pathway under s 249 of the Crimes Act: 77
Count 2 in the indictment charges the appellants jointly with conspiring

to commit copyright infringement through Megaupload and associate
sites for financial gain. That is the essence of the conduct charged.
47. The translation of that conduct to the offence is represented in the table
below:
72 Edwards v United States of America [2002] 3 NZLR 222 (CA) at [29] [US-AUT-010-0576].
73 United States of America v Cullinane, above n 6, at [26] [US-AUT-009-0552]. The Court of Appeal took account of
both the indictment and the case summary in the prosecutor’s affidavit. In Edwards v United States of America,
above n 72, at [29] [US-AUT-010-0576], the Court examined the indictment and supporting documents. A
record of the case may be the source of the conduct. United States of America v Edwards 2011 BCCA 100, 271 CCC
(3d) 471 (BCCA) at [43]-[46]. In Norris v Government of United States of America, above n 68, at [91] [US-AUT-019-
1014], the House of Lords considered that the conduct is to be found “in the documents constituting the
request”. Under art X of the New Zealand-United States Treaty 1970, those documents include “such
evidence…” [US-AUT-002-0093] The House of Lords in Norris also observed that the “examination of all
conduct on which the requesting state relies” was “almost universally followed” in the common law world. (At
[90]) [US-AUT-019-1013].
74 The submissions for Mr Ortmann complain of uncertainty in defining the conduct constituting the United States
offences and allege non-compliance with s 18(4)(c)(ii) of the Extradition Act, which requires a deposition setting
out “the conduct constituting the offence” [US-AUT-001-0016]. It is submitted in response: (1) Given s 11, the
documentary requirements are defined by art X of the Treaty, not s 18. Article X requires “a statement of the
facts of the case”. [US-AUT-002-0093] This is satisfied by the diplomatic note and the detailed indictment – the
indictment forms part of a deposition in any event. (2) In Edwards and Cullinane, the Court of Appeal ascertained
the relevant conduct primarily from the indictment. There does not appear to have been a specific statement in
either of those cases. (3) Gilbert J observed that the documentary requirements had been satisfied and it did not
seem to have been seriously argued in the District Court that they had not been: HC judgment at [425]
[CA.1.0140]. In May 2015, Katz J considered that “it cannot be seriously argued that the plaintiffs have
insufficient notice of the case they have to meet”. Ortmann v District Court at North Shore [2015] NZHC 901 at [18]
[CA.1.0591].
75 Crimes Act 1961, s 249 [US-AUT-005-0243].
76 CA judgment at [135] [SC.001.061].
77 At [170] [SC.001.074].
22
populating Megavideo front pages with user-generated content

unlawfully reproduced from YouTube.
48.6 Conduct their auditing procedures to allow infringing content to be

hosted.
48.7 Take steps to frustrate the “justice system” in the event of legal action
against them.
48.8 Expedite the mass distribution of infringing files by copying the most
popular content to Cogent servers and converting video files into a
form that enabled more rapid distribution.
48.9 Showcase the availability of High Definition copyright movies.
48.10 Frustrate the efforts of copyright owners to have infringing content

taken down.
48.11 Deceive copyright owners, Paypal and the United States Trade
Representatives (USTR) about the action they took in response to
takedown notices. They purported to have removed
files/content/videos instead of URL links.
48.12 Encourage the activities of repeat infringers and shelter them from
detection by copyright owners.
48.13 Disguise the hosting of infringing content by making Megaupload

non-searchable and strictly limiting the searchability of the Megavideo
site. At the same time, they would exploit third party linking sites as a
means of making infringing content available to Internet users.
49. A similar comparison for each count and each pathway can be found in the
Appendix. The Court of Appeal remarked that the appellants did not seriously
challenge the translation of alleged conduct to deemed treaty offences. 79 That
apparently remains the case, with two exceptions:
79 CA judgment at [185],[200], [216], [219], [222], [229] [SC.001.079].

23
49.1 The translation of the laundering conduct to a New Zealand offence

and/or an offence under the Treaty. As this may be influenced by the
status of Cullinane, it is further discussed in Part Two.
49.2 The comparison involving offences under s 131 of the Copyright Act.
This is the subject of renewed attack by the appellants and it also is
dealt with in another part of these submissions, Part Four.
50. Presumably because the satisfaction of s 24(2)(c) via Crimes Act pathways is
otherwise self-evident, the appellants place some emphasis on their argument
that the terms of the Copyright Act prevent reliance on Crimes Act offences.
We next address that issue.
Is the Copyright Act a “code”, such that copyright fraud may only be charged
under s 131?
51. The most direct answer is that s 10 of the Crimes Act permits an act
constituting an offence under another statute to be charged as an offence
under the Crimes Act. 80 The drafters of the Copyright Act must have been
aware of this earlier provision and Court of Appeal decisions such as:
51.1 R v Walters (fisheries fraud charged under the Crimes Act); 81
51.2 Busby v Thorn EMI Video Programmes Ltd (copyright fraud potentially
charged under the Crimes Act); 82 and
51.3 R v Cann (revenue and transport offences charged under the Crimes
Act). 83
52. If it was intended to exclude the Crimes Act from operating in the field of
copyright, express language would have been used. 84
53. In Scott, it was argued that the Copyright Act 1956 (UK) prevented a
conviction for conspiracy to defraud. 85 The House of Lords rejected this
80 Crimes Act 1961, s 10 [US-AUT-005-0232]. The case for excluding the Crimes Act is no stronger if the conduct
cannot be, as Mr Dotcom submits, an offence under the Copyright Act.
81 R v Walters [1993] 1 NZLR 533 (CA) [US-AUT-112].
82 Busby v Thorn EMI Video Programmes Ltd [1984] 1 NZLR 462 (CA) [US-AUT-214].
83 R v Cann [1989] 1 NZLR 210 (CA) [US-SCA-003].
84 This was also the reasoning employed in R v Walters, above n 81, at 537 [US-AUT-112-3312]. Examples of
language that might have been used include: Crimes Act 1961, s 9 (“Offences not punishable except under New
Zealand Acts”); Property (Relationships) Act 1976, s 4 (“Act a code”); Care of Children Act 2004, s 13 (“Act a
code”).
24
contention, relying on an Interpretation Act provision similar in effect to s 10

of the Crimes Act. The general position in this country was stated by the
Court of Appeal in R v Cann. 86 The appellant had argued that, while there was
no express reference to a code in the tax statutes, the measures in those Acts
formed a code setting out all matters relating to the collection of taxes and
punishment of offences. He argued the Crown could not go beyond this code
when prosecuting revenue offending. 87 The Court responded: 88
A statute is sometimes said to be a code in that it effectively replaces the

common law and rules of equity affecting a particular branch of the law.
For example in Stewart v Grey County Council [1978] 2 NZLR 577, this
Court said that the Mining Act 1971 was a code which operated to the
exclusion of all other statutes. However, there is nothing to suggest that
the Income Tax Act, the Goods and Services Tax Act and the Inland
Revenue Department Act, individually or collectively, comprise a code in
the sense that all prosecutions for infractions of the tax law must be laid
under their provisions. Indeed, far from prosecutions being restricted to
the provisions of one of those tax [A]cts, there are statutory indications
to the contrary.
54. The Court set out s 10 of the Crimes Act and continued: 89
It is plain enough from the provision just cited that an act or omission
which is an offence against one Act may be prosecuted under the
provisions of another. It may be prosecuted under either Act as is
frequently the case. For instance, cases of dangerous driving or reckless
driving causing death may be prosecuted under provisions of the
Transport Act 1962 or as manslaughter under the Crimes Act. There is
no reason in principle why an act or omission which may be prosecuted
as an offence under s 62 Goods and Services Tax Act should not be
prosecuted under the provisions of the Crimes Act if the circumstances
in which it has been committed bring it fairly within the provisions of a
particular section.
55. As the Court noted, there are many statutes containing offences which, like the
Copyright Act, are specific to their subject matter, yet conduct that could be
85 Scott v Metropolitan Police Commissioner, above n 30 [US-AUT-125].

86 R v Cann, above n 83 [US-SCA-003].
87 The appellant had been charged with using a document with intent to defraud: Crimes Act 1961, s 229A(b) .
88 R v Cann, above n 83, at 213 [US-SCA-003-2694]. Stewart v Grey County Council [1978] 2 NZLR 577 (CA) [KD-
AUT.321] involved the relationship between legislation specifically governing the use of land for mining and
general legislation conferring powers on territorial authorities. The Mining Act 1971 was held to be a code in
relation to the use of land for mining. Land opened for mining could not be subject to inconsistent controls
imposed by territorial authorities. The Court noted at 583: “[i]t is inevitable that in the complex legislative
processes of a modern society there will be occasional conflicts and inconsistencies between the provisions of
different statutes. There are well established rules for determining which provisions are to prevail. The starting
point, of course, is that there be an inconsistency. If it is reasonably possible to construe the provisions so as to
give effect to both, that must be done.” Here, there is no inconsistency between the Crimes Act and the
Copyright Act. Both penalise frauds against the holder of a property right and have operated together for
decades.
89 R v Cann, above n 83, at 213 [US-SCA-003-2694].
25
charged under them is regularly prosecuted under the Crimes Act. 90 The
Crimes Act is often used precisely because it differs from the specialist regimes
– either in its ease of application or because its penalties better reflect the
seriousness of the offending. 91 This pattern was, and is, such a prominent
feature of our criminal law that it could hardly have passed unnoticed when the
Copyright Act was enacted.
56. The history of copyright prosecutions shows more specifically that the
appellants’ code argument cannot succeed in the absence of language expressly
excluding the Crimes Act. The Copyright Act does claim as its exclusive
domain the establishment of copyright (ss 5, 225(2)), 92 but it does not claim
similar exclusivity over remedies for misconduct in relation to copyright
works. 93
57. The Copyright Act 1962 similarly provided in s 5: "[n]o copyright except by
virtue of this Act". 94 But before 1994, it was well-recognised that certain forms
of infringement could also be charged as general criminal offences. This was
so, both in the United Kingdom and New Zealand. 95 Copyright offending
continues to be charged as conspiracy to defraud in the United Kingdom and
its copyright statute is the template for the New Zealand legislation. 96
58. Several years before the current Copyright Act was enacted, the 1989 text,
Brown and Grant The Law of Intellectual Property in New Zealand (foreword by
Cooke P), referred to the Busby observations about charging copyright
90 Other examples are social welfare and ACC frauds charged under the Crimes Act.
91 Rank Film Distributors Ltd v Video Information Centre [1982] AC 380 [US-AUT-119]; Busby v Thorn EMI Video
Programmes Ltd, above n 82 [US-AUT-214]; R v Walters, above n 81 [US-AUT-112].
92 Copyright Act 1994, ss 5 [US-AUT-006-0269], 225(2) [US-AUT-006-0447].
93 In the High Court, Mr Dotcom relied on s 225(4) of the Copyright Act as implicitly meaning that only
infringement of moral rights may be the subject of criminal remedies outside the Copyright Act. The section
appears in Part 11, dealing with “Miscellaneous Provisions”. Gilbert J noted at [100] that the same provision in
the United Kingdom statute (Copyright, Designs and Patents Act 1998 (UK), s 171(4)) does not prevent
prosecutions for conspiracy to defraud [CA.1.0037]. See also Hugh Laddie, Peter Prescott and Mary Vitoria, The
Modern Law of Copyright and Designs (4th ed, LexisNexis, London, 2011) at [13.59] [US-CAA-047], cf. [64.49]
[US-CAA-048].
94 Copyright Act 1962, s 5 [KD-AUT.339].
95 Scott v Metropolitan Police Commissioner, above n 30 [US-AUT-125]; Rank Film Distributors Ltd v Video Information
Centre, above n 91 [KD-AUT.177]; Busby v Thorn EMI Video Programmes Ltd, above n 82 [US-AUT-214].
96 Nicholas Caddick, Gillian Davies and Gwilym Harbottle (eds) Copinger and Skone James on Copyright (17th ed,
Sweet & Maxwell, London 2016) vol 1 at [22.50] [US-AUT-201-5475]. R v Zinga [2014] EWCA Crim 52, [2014] 1
WLR 2228 at [57] [US-AUT-116-3364]. R v Zinga (Costs) [2014] EWCA Crim 1823, [2015] 1 CR App R 2 [US-
AUT-117]; HC judgment at [101] [CA.1.0038]. See also Susy Frankel Intellectual Property in New Zealand
(LexisNexis, Wellington, 2011) at [5.1.1].
26
offending under s 257 of the Crimes Act. 97 The learned authors identified
several Crimes Act offences as providing available remedies for infringement:
ss 266A, 266B and s 257. 98 There had been some successful prosecutions
under the Crimes Act but the authors could find none under the Copyright
Act. 99 The application of s 257 to copyright fraud was recognised even earlier,
in 1964. 100
59. The established position in both jurisdictions was that the copyright legislation
did not displace general criminal offences under statute, or under the common
law of the United Kingdom. There is nothing in the legislative history of the
Copyright Act to indicate a concern with the existing reliance on Crimes Act
offences. After the 1994 Act, the Crimes Act was still regarded as applicable to
copyright offending. 101
60. The Copyright Act does not have a "purpose" or "objects" provision, but its
evident purpose is to establish the property right and protect it. The objective
of protection is not met by reading the Act as excluding a range of potential
remedies that have previously been treated as applicable.
Copyright infringement charged as fraud – United Kingdom practice

61. The appellants submit that R v Dady establishes that copyright infringement
cannot be prosecuted by way of general fraud. 102 A similar argument was
advanced in the District Court based on R v Ayres. 103
62. The appellants’ submission misstates the position under United Kingdom law.
The discussion in R v Evans (Eric) provides a helpful review of later
developments: 104
[30] Following consideration by the Law Commission (Report on

Conspiracy and Criminal Law Reform (1976)… The Criminal Law Act
1977 generally abolished common law conspiracy (section 5(1)) in favour
of a new statutory offence of conspiracy, defined in terms of an
97 Andrew Brown and Anthony Grant The Law of Intellectual Property in New Zealand (Butterworths, Wellington, 1989)
at [4.171] [US-CAA-049-1531].
98 Crimes Act 1961, ss 266A, 266B and 257 [US-AUT-005-0238].
99 Brown and Grant The Law of Intellectual Property in New Zealand, above n 97, at 423-425 [US-CAA-049-1531].
100 Francis Adams (ed) Criminal Law and Practice in New Zealand (Sweet & Maxwell (NZ) Ltd, Wellington, 1964) at 409
[US-AUT-208-5553].
101 Power Beat International v Attorney-General [2000] 2 NZLR 288 (CA) [US-AUT-084]; Reeves v OneWorld Challenge
LLC [2006] 2 NZLR 184 (CA) at [99] [US-CAA-069-2377].
102 R v Dady, above n 13 [KD-AUT.335]
103 R v Ayres [1984] AC 447 (HL) [KD-AUT.160].
104 R v Evans (Eric) [2014] 1 WLR 2817 at [30]-[32] [US-CAA-039-1431].
27
agreement to commit any offence: section 1(1). However, the common

law offence of conspiracy to defraud was expressly preserved: section 5
(2). Reversing R v Ayres [1984] AC 447, section 12 of the Criminal
Justice Act 1987 provides that a charge of conspiracy to defraud can be
brought even where the course of conduct agreed to be pursued will or
may itself amount to the commission of a statutory offence. However,
unless there is good reason for doing otherwise, the courts have
emphasised that, where conduct falls within the terms of a statutory
offence, then that offence should be charged, and not a common law
offence, such as conspiracy to defraud, that might also be committed on
the facts: R v Rimmington (“Rimmington”) [2006] 1 AC 459 para 30, per
Lord Bingham of Cornhill.
[31] As I have already indicated… the Law Commission 2002 Report

recommended the abolition of the offence. In the wake of that report,
the Fraud Act 2006 replaced deception offences under the Theft Acts
with a statutory offence of fraud, capable of being committed in three
ways (fraud by false representation, fraud by failing to disclose
information and fraud by abuse of position); but nevertheless it
preserved the common law offence of conspiracy to defraud on the basis
that (i) some conduct could still only be prosecuted as conspiracy to
defraud… the real driver behind the retention of the common law
offence appears to have been the practicalities with regard to the
effective prosecution of multiple offending and the largest and most
serious cases of fraud: see Ormerod Williams, Smith’s Law of Theft, 9th ed
(2007) (“Smith”), para 5.68.
[32] The relationship between the common law offence and statutory
offences is now governed by the Attorney-General’s Guidance for
Prosecutors on the Use of the Common Law Offence of Conspiracy to Defraud, first
published in 2007 and last updated on 29 November 2012. The
guidance, chiming with the comments in Rimmington (see para 30 above)
requires prosecutors to consider whether the conduct could be
prosecuted under statute, and whether the available statutory charges
would adequately reflect the gravity of the offence (para 6); and, in
effect, to charge the common law offence if there is good reason for
doing so, e g where prosecution of a number of substantive offences
may not present a proper view of the overall criminality involved or
there is evidence of a wider dishonest objective than could be
encapsulated in a particular statutory offence or even a statutory
conspiracy: paras 7 ff.
63. Dady is merely an application of the principle in R v Rimmington, 105 and the High
Court in Dady accepted that conspiracy to defraud will be a suitable charge in
some copyright cases. 106 But the Attorney-General’s Guidance would certainly
justify a charge of conspiracy to defraud if Megaupload were the subject of
prosecution in the United Kingdom. 107 Relevant factors would be the gravity
of the offending, several significant but different kinds of criminality, several
jurisdictions, different types of victims, an organised crime network, and the
105 R v Rimmington [2005] UKHL 63 [KD-AUT.320].

106 R v Dady, above n 13, at [23] [KD-AUT.335].
28
proliferation of charges if statutory conspiracies are charged. Section B deals

with “[c]onduct that can only be prosecuted as conspiracy to defraud.” 108 One
of the (non-exclusive) examples is an agreement involving “dishonestly
infringing another’s right; for example the dishonest exploitation of another’s
patent.” 109
64. As Gilbert J noted, conspiracies to commit copyright infringement continue to

be indictable as conspiracy to defraud in the United Kingdom. 110
United States practice

65. It is not obvious that United States practice casts any light on the relationship
between the Crimes and Copyright Acts in this country. At any rate, Gilbert J
rejected the submission that Dowling v United States precluded the application of
general criminal offences to copyright fraud. 111 In Dowling, the narrowly drawn
indictment obliged the United States to argue that copyrights were “goods,
wares or merchandise”. That is not the issue here.
66. Dowling had been involved in the unauthorised production and distribution of
records containing copyright material (Elvis Presley music). He was convicted
of copyright infringement and mail fraud offences. He was also convicted for
interstate transportation of stolen property under a provision of the National
Stolen Property Act – 18 U.S.C. § 2314.
67. The Supreme Court only considered the latter convictions, under the National
Stolen Property Act. 112 Dowling’s convictions for mail fraud had been
affirmed by the Court of Appeals and were not in issue. 113
68. The Supreme Court’s decision was based on the language of § 2314, which
captured the transporting of any goods, wares or merchandise “knowing the
same to have been stolen, converted or taken by fraud.” The Court held that
this language required that physical goods &c had to be “stolen, converted or
107 Attorney-General Guidance Use of Common Law Offence to Conspiracy to Defraud (29 November 2012) [US-CAA-
063].
108 At 3 [US-CAA-063-1881].
109 At 3 [US-CAA-063-1881].
110 HC judgment at [97]-[98] [CA.1.0036].
111 HC judgment at [110] [CA.1.0041]. Dowling v United States of America 473 US 207 (1985) [US-AUT-061].
112 At 209 (“Only the § 2314 counts concern us here”) [US-AUT-061-2214].
113 United States of America v Dowling, 739 F 2d 1445, 1447-49 (9th Cir 1984). “If the government can prove the
requisite elements to support a mail fraud conviction in relation to Dowling’s activities, we find nothing in the
Copyright Act to prohibit prosecution of those acts under the Mail Fraud statute.”
29
taken by fraud” and then transported. The physical bootleg copies had not
been stolen, converted or taken by fraud. Instead Dowling had made the
copies. In contrast, § 2314 would capture the physical taking of a mere piece
of paper, even if “the item owes a major portion of its value to an intangible
component.” 114
69. The ratio is that infringement of copyright per se is not a physical taking or
removal within the meaning of § 2314. The Court’s discussion of the history
of copyright legislation provided only “additional reason to hesitate before
extending § 2314 to cover the interstate shipments in this case.” 115 In relation
to § 2314 “congress has not spoken with the requisite clarity.” 116 Later
decisions illustrate the boundaries of the Dowling decision. 117 Copyright frauds
can be charged as general criminal offences in the United States.
Generalia specialibus non derogant

70. In Stewart v Grey County Council, on which the appellants rely, the Court of
Appeal explained: 118
The starting point is that there be an inconsistency. If it is reasonably

possible to construe the provisions so as to give effect to both, that must
be done. It is only if one is so inconsistent with, or repugnant to the
other, that the two are incapable of standing together, that it is necessary
to determine which is to prevail. …
71. There is no such inconsistency between the Crimes and Copyright statutes. In
both New Zealand and the United Kingdom, copyright frauds have long been
114 Dowling v United States of America, above n 111, at 216 [US-AUT-061-2221].

115 At 207 [US-AUT-061-2226].
116 At 207 [US-AUT-061-2234].
117 In Cooper v United States of America 639 F Supp 176 (MD Fla 1986) [US-AUT-055], the United States District
Court (Florida) declined to set aside wire fraud convictions for copyright offending, based on the recent post-
conviction decision in Dowling. In so doing, the Court stated at 180: “In this Court’s opinion, Dowling cannot be
interpreted so as to remove from the reaches of the wire fraud statute a scheme to defraud copyright owners,
musicians and the public from the protections afforded by the copyright laws of this country. Accordingly, the
Court will uphold all of petitioners’ convictions involving the crime of wire fraud.” [US-AUT-055-2071]
Affirmed without opinion, (11th Circuit), certiorari denied sub nom. McCulloch v United States of America, 484 US
947 (1987). In the 1995 case of United States of America v Wang 898 F Supp 758 (D Colo 1995) [US-AUT-170],
the Court observed that the language of the Stolen Property Act differed from the general fraud statutes. It
rejected a submission that Dowling prevented a wire fraud prosecution for wiring confidential copyrighted
computer files. The subject matter in Carpenter v United States of America 484 US 19 (1987) [US-AUT-053] was
confidential business information rather than a copyright work. But that case illustrates that intangible
information is likewise protected by the mail fraud statute. The ratio of United States of America v LaMacchia 871 F
Supp 535 (D Mass 1994) [US-AUT-161] was that that copyright infringement for non-commercial motives could
not be prosecuted under criminal copyright law, and the defendant could only be prosecuted under the copyright
legislation. The so-called “LaMacchia loophole” (no liability when no commercial motive for the infringement)
was removed by the No Electronic Theft Act 1997, Pub. L. No. 105-147, 111 Stat. 2678.
118 Stewart v Grey County Council, above n 88 [KD-AUT.321].
30
prosecuted as statutory or common law crimes and the legislatures have taken
no steps to interfere with that practice.
72. Mr Dotcom further submits that if the Copyright Act does not criminalise the
fraudulent conduct, the Crimes Act cannot be relied upon and the remedies are
purely civil. 119 This cannot be so, because there are many examples of civil
wrongs that are also punishable as crimes. Under statutory and common law
formulations of conspiracy to defraud, is not necessary that the acts agreed to
be committed should be criminal. The offence requires only a dishonest
deprivation. 120 An agreement to commit a civil wrong of a fraudulent or
dishonest character suffices. 121 The fraud may lie in merely putting at risk the
economic interests of others. 122 In Busby, Bisson J observed that “[t]he
respondents [the copyright owners] may decide that a criminal sanction [under
s 257] with a maximum term of five years would be a more satisfactory means
of combating “pirates” of intellectual property than pursuing civil remedies.” 123
73. Thus, if one were to imagine the Copyright Act with s 131 deleted, or with an
offence provision which, though inapt language, did not apply to some kinds
of commercial infringement, it would still be possible to deal with copyright
fraud under the Crimes Act.
74. For the appellants to carry their argument, they would need to show that the
Copyright Act affirmatively sanctioned their otherwise dishonest possession
and distribution of infringing copies. Or, more starkly, that the statute deems
their conduct to be honest, thus making it improper, if not impossible, to
charge the dishonesty offences in the Crimes Act. This is the “free pass”
argument examined below in Part Four.
119 Submissions for Mr Dotcom at 4.21, 5.22, 5.23.

120 R v Olan [1978] 2 SCR 1175 at 1182 [US-AUT-110-3284].
121 James Willis Garrow and Willis’s Criminal Law (5th ed, Butterworths, Wellington, 1968) at 225 [US-AUT-197].
David Ormerod (ed) Smith and Hogan’s Criminal Law (13th ed, Oxford University Press, Oxford, 2011) at 448 [US-
AUT-198-5422].
122 Adams v R (1994) 12 CRNZ 379 (PC) at 391 [US-AUT-041-1612].
123 Busby v Thorn EMI Video Programmes Ltd, above n 82, at 486 [US-AUT-214-5608].
31
QUESTION TWO: Was the High Court Judge correct to conclude that
copyright in a particular work does not form part of the accused person’s
conduct constituting the extradition offences correlating to Counts 4-8, and to
conclude that proof of this is not required for the purposes of s 24(2)(d) of the
Extradition Act. Rather, it is a circumstance transposed when determining
whether the offence is an extradition offence.
Overview
75. The key to transposition in this case is the distinction between relevant
conduct and the things to which that conduct relates.
Section 24(2)(c) – is the conduct constituting the offence an extradition offence?

76. As with “the law in most of the rest of the common law world”, extradition
under Part 3 of the Extradition Act is conduct-based. 124
77. Under s 24, the first step, in subs (2)(c), 125 is to ask whether the offence 126 is an
extradition offence. Sections (4) and (5) make this an inquiry into the conduct
– the “acts or omissions” constituting the offence. That conduct, “or equivalent
conduct”, must be considered as if it had occurred in New Zealand.
78. This exercise requires reference to the “totality” of the alleged acts or
omissions. 127 But if that conduct intersects with:
78.1 the limbs of an offence described in the Treaty (Cullinane); or
78.2 the limbs of a qualifying New Zealand offence that is also described
in the Treaty (post-Cullinane)
the foreign offence will be an extradition offence.
79. The reference to “equivalent conduct” recognises that adjustments must be

made in performing the conduct translation. The alleged conduct has occurred
in another jurisdiction. The statute does not expect that the foreign complaint
124 See Extradition Act 1999, ss 4, 5 [US-AUT-001-009], 18(4)(c)(ii) [US-AUT-001-015], 24(2)(d)(i) [US-AUT-001-
019], New Zealand – United States Treaty 1970, art XIII [US-AUT-002-0095] and United States of America v
Cullinane, above n 6, at [67] [US-AUT-009]; Canada (Justice) v Fischbacher 2009 SCC 46, [2009] 2 SCR 170 at [4]
[US-AUT-017-0838]; Norris v Government of the United States of America, above n 68, at [89] [US-AUT-019-1013].
126 This is “the offence … for which surrender is sought” in the Extradition Act 1999, s 24(1) [US-AUT-001-0019].
32
must in all respects cover what would be needed for conviction in New
Zealand, and this is relevant to interpreting s 24(2)(d). 128
Section 24(2)(d) – is there evidence of the conduct constituting the offence?

80. Through s 24(2)(d), our system adds a further requirement: there must be
prima facie evidence of the intersecting conduct – not the legal status of a
particular thing, but evidence of the relevant conduct done in relation to that
thing.
81. This is consistent with what the Supreme Court of Canada identified as “three
key components of extradition law: conduct based double criminality; the
foundational principle of comity; and the carefully circumscribed role of the
extradition judge in the Act.” 129 Conduct provides the lingua franca for the
extradition transaction and the extradition court is not required to apply an
unfamiliar foreign law to determine any matter. This is part of the rationale for
conduct-based extradition. 130 It explains why (as in Norris) 131 conduct may
satisfy a double criminality analysis even if the underlying subject matter does
not support criminal liability in the requested country.
Scope
82. As Question 2 implies, only Counts 4-8 focus on the infringement of copyright
particular files. That focus must be further refined. The question of
transposition only arises under the s 131 pathway for those counts:
82.1 Only s 131 requires, as an element, “an object that is… an infringing
copy of a copyright work.” 132
82.2 The other counts and the other Count 4-8 pathways do not put in
play the legal status of the file under copyright legislation. The
Crimes Act pathways do not require proof of that status. For
example, the s 249 pathway involves dishonestly using a computer
system to obtain a benefit. 133 That dishonest access may be
established without proof of copyright ownership under the
128 Extradition Act 1999, s 24(2)(d) [US-AUT-001-0019].

129 Canada (Justice) v Fischbacher, above n 124, at [50] [US-AUT-017-0856].
130 United States v McVey [1992] 3 SCR 375 at [39] [US-AUT-016-0804].
131 Norris v Government of the United States of America, above n 68 [US-AUT-009].
132 Copyright Act 1994, s 131 [US-AUT-006-0370].
133 Crimes Act 1961, s 249 [US-AUT-005-0243].
33
Copyright Act. It will suffice if the access involves using a copy

without authorisation, accompanied by mens rea, which is not the
same thing as establishing who the particular the copyright owner
is. 134
Two United States submissions

83. These are, in short:
83.1 The legal status of a file does not form part of the conduct that makes
a foreign offence an extradition offence. If the United States alleges
ABCD done in relation to X, a copyright infringing file, then ABCD
is the conduct and X is the thing to which that conduct relates. If X
is not part of the relevant conduct, s 24(2)(d) does not require
evidence of X’s legal status.
83.2 If that is wrong, the United States has, in any event, provided
evidence from which the infringing status of the files in Counts 4-8
may be inferred.
84. The second of these submissions raises an issue of jurisdiction. Even if s

24(2)(d) does require prima facie evidence of copyright status and
infringement, the Court of Appeal found that the ROC contained evidence
from which the necessary inferences could be drawn. 135 This is an evidential
issue that falls outside the second question Gilbert J authorised. Because the
Court of Appeal denied special leave on all questions concerning the existence
of a prima facie case and satisfaction of s 24(2)(d), this finding cannot be
further challenged in these appeals.
85. This makes the answer to Question 2 academic, at least in the sense that the
evidential burden has already been discharged even if the correct answer is
“no” and copyright status does indeed form part of the conduct justifying trial.
Acknowledging the issue may arise in future cases, both of the respondent’s
submissions are developed below.
134 By way of comparison, the Crimes Act receiving offence does not require the identity of the true owner to be
proved, but merely proof that the property has been unlawfully obtained – a matter that can be established
circumstantially. Simon France (ed) Adams on Criminal Law (online ed, LexisNexis) at [246.02(3)].
135 CA judgment at [252] and [260] [SC.001.100].
34
First submission: the status of the Megaupload files is not “conduct”

86. The Full Court of the Federal Court of Australia directly affirmed this in
Griffiths v United States of America. 136 It rejected essentially the same argument the
appellants advance here. (The High Court of Australia declined leave after the
point was raised again during the leave hearing.)137
87. The Full Court considered the extent of “equivalent conduct” that would
establish an Australian offence to meet the double criminality requirement
under its system of extradition. The Australian extradition procedure in a
United States extradition did not require prima facie evidence of the alleged
conduct but merely a description of the “conduct constituting the offence”.
88. Mr Griffiths submitted that all the matters establishing notional Australian
copyright and infringement must be made out in the description of the
conduct: 138
… an assertion in the supporting documents that there has been an

infringement of a copyright work (that is, under US law) is not
determinative of any issue under the Australian Copyright Act. The
relevant work may not be copyright in Australia. The copyright owner
may be different in Australia. And the “infringement of copyright may
not be an infringement under Australian law.
If, for instance, a computer program was not copyright under Australian law,
“then Mr Griffiths could not be extradited – he would not have committed an
offence under Australian law.” 139
89. The Full Court held that the relevant “equivalent conduct” did not involve
showing that the copyright in the relevant software subsisted in either Australia
or the United States. 140 The Court held the “conduct constituting the offence”
involved only conduct in relation to a kind of work that could be protected by
Australian copyright law. 141 It did not extend to conduct involving a work that
was protected by Australian copyright law and which would amount to
infringement under that law. The conduct constituting the Australian offence
136 Griffiths v United States of America (2005) FCA 182 [US-AUT-021].

137 Griffiths v United States of America [2005] HCA Trans 66 [US-AUT-022].
138 Griffiths v United States of America, above n 136, at [80] [US-AUT-021-1070].
139 At [81] [US-AUT-021-1070].
140 The same argument as that run by the appellants was rejected in Australia: the request is deficient because it does
not cover the copyright status of works under Australian/New Zealand law: Griffiths v United States of America,
above n 136, at [79]–[81] [US-AUT-021-1069]. Cf. HC judgment at [267] [CA.1.0089].
141 At [85]-[87] [US-AUT-021-1071].
35
did not include those local Australian circumstances. Nor was it material
whether the work was protected by United States copyright law. This was “not
of itself a matter of conduct. It is more in the nature of a ‘state of things rather
than an act’… which, as the United States acknowledges, it will be required to
prove in any trial of the charges.’” 142
90. The Full Court was concerned here with the intersection between the conduct
alleged and the domestic comparator offence. This is the same step as our s
24(2)(c). Our s 24(2)(d)(i) adds a further step of requiring prima facie evidence
of the conduct constituting the extradition offence. 143 If the status of a thing –
in this case a digital copy – is not a matter of conduct, the Extradition Act does
not impose an evidential requirement under s 24(2)(d)(i). Griffiths is therefore
not distinguishable on the basis that the Australian statute does not require a
prima facie case. The point is that copyright status under the law of either the
requested or requesting country is not a matter of conduct.
91. Because copyright status is not conduct, a New Zealand extradition court is
not being asked to accept a conclusory statement on a matter for which the
United States has an evidential onus. The question for the magistrate in
Griffiths was: 144
… whether it would be an offence notionally in Australia to breach

copyright substantively in the way that has been alleged in the supporting
documents. This would have required that the magistrate be satisfied
that the type of work pirated, that is, software, was itself a type of work
capable of attracting protection under the Australian Copyright Act. It
clearly had that quality. Beyond this the magistrate’s concern was with
the appellant’s conduct.
92. Dutton v O’Shane, 145 an earlier decision from the same court, foreshadowed the
reasoning in Griffiths. Dutton was charged with fraud and forgery arising from
foreign currency transactions under the foreign exchange laws of South Africa.
South Africa submitted the conduct would constitute offences under fraud and
false representation provisions of the Crimes Act, and also fraud and obtaining
money by deception. Dutton argued the relevant crimes could only exist in a
country in which there were foreign exchange controls and a system of dual

143 Extradition Act 1999, s 24(2)(d)(i) [US-AUT-001-0019].
145 Dutton v O’Shane [2003] FCAFC 195 [US-CAA-065].
36
exchange rates. These were not features of Australian law; therefore the
relevant conduct could not have constituted a crime in Australia.
93. In its discussion of transposition, the Full Court observed: 146
The forms of conduct that can give rise to many offences, particularly
those of fraud, deception and dishonesty, are contrived by the
institutional arrangements and practices which create the opportunities
for the commission of such offences. Commonly, opportunities exist in
one country that are not available in another. We merely instance frauds
practised upon governments in the provision of services, approvals,
licences, welfare payments, etc. As those services etc vary from country
to country, so too do the opportunities to commit frauds involving
them.
94. Determining the existence of “equivalent conduct” required the exercise of

practical judgment: one has to ask “what is the essence of that conduct in its
setting when viewed with Australian eyes for the purposes of determining its
criminality under municipal law.” 147 Referring to Re Collins, 148 the Court
explained that the process “involves a form of abstraction and characterisation
of Mr Dutton’s conduct”. 149 It was, in other words, necessary to consider
whether the conduct in question has “corresponding significance between the
two legal systems.” 150
95. The result in Griffiths was likewise an acknowledgement that the offence of
criminal copyright infringement depends on an institutional context that may
not exist in the requested country. The work in question may be subject to
copyright in one country but not the other. The definitions of infringement
may not be identical. Those differences are immaterial if the conduct of
knowingly infringing copyright has corresponding significance in the requested
country.
96. The decision of the House of Lords in Norris further illustrates how conduct
may be expressed in an abstract form. 151 Count 1 in the United States
indictment alleged a conspiracy to operate a price fixing agreement. The
House of Lords held that price fixing, without more, was not contrary to
146 Dutton v O’Shane, above n 145, at [68] [US-CAA-065-2223].

147 At [69] [US-CAA-065-2223].
148 Re Collins (No 3) (1905) 10 CCC 80 (BCSC) [US-AUT-120].
149 Dutton v O’Shane, above n 145, at [69] [US-CAA-065-2223].
150 At [67] [US-CAA-065-2223].
151 Norris v Government of the United States of America, above n 68 [US-AUT-019].
37
English law. It therefore could not be translated to the offence of conspiracy

to defraud. The position was different in relation to Counts 2–4, which alleged
conspiracies to obstruct justice in various ways. This was conduct recognised
as criminal under English law. But the underlying subject matter, to which that
conduct related, was not. The House of Lords nevertheless found that this
conduct translated to an extradition offence. The Magistrate had been right to
find Norris eligible on these counts. 152
97. At a similar level of abstraction, under New Zealand copyright law it is

unlawful in various ways to do restricted acts in relation to a copyright work
without licence. For extradition purposes, it does not matter whether the
particular copies in question are protected by copyright here. The conduct
done in relation to the copy is the important thing, not the underlying fact of
whether the work is actually copyrighted in New Zealand (which for this
comparison is the analogue of the price-fixing cartel in Norris).
98. In Norris, it did not matter that “there could… never have been a criminal
investigation in price fixing in this country”, 153 which could create the occasion
for the conduct of obstructing justice. It likewise makes no difference to
suppose that a work named in Counts 4–8 is not the subject of copyright in
New Zealand and therefore could not be the subject of prosecution here. The
transposed “state of things” from the United States, including its copyright
status there, will be sufficient for extradition purposes.
99. In the courts below, the appellants have occupied differing positions on
whether infringement of copyright in relation to Counts 4-8 has be proved
under United States or New Zealand law. In this court, they appear to plump
for proof under the law of both countries. 154 This still leaves them in a cleft
stick on matters of basic principle.
100. Requiring proof under New Zealand law fails to acknowledge that the conduct
took place in another country. The opportunities to commit copyright fraud
might exist in the other country but not the other. This has never mattered
providing the same conduct – expressed in an abstract way if necessary –
152 Norris v Government of the United States of America, above n 68, at [100]–[101] [US-AUT-019-1017].
153 At [100]–[101] [US-AUT-019-1017].
154 Synopsis of submissions for Messrs Ortmann and van der Kolk at D6.7, 7.13.
38
comprises an offence in the requested country. It is the criminality of the

conduct that matters, not the status of a thing. Transposition is needed to
“give effect to the fact that the court is dealing with an extradition case and not
a domestic one. … It is necessary to effect an appropriate substitution for
every circumstances connected with the requesting stated state on which the
jurisdiction is founded.” 155 If a copyright work, “Q”, is infringed in the United
States, the requested person cannot escape eligibility if the copyright owner has
neglected to obtain recognition of copyright for “Q” in New Zealand. His
wrongful conduct occurred in the United States, not here, and the “equivalent
conduct” is infringing a copyright work in this jurisdiction, not the copyright
work.
101. Requiring proof under United States law – the other fork in the stick –
conflicts with the function of the extradition court:
101.1 It asks the extradition Court to consider not conduct but foreign law.
In McVey, this course was seen to have a crippling effect on
extradition proceedings. 156
101.2 It asks it finally to determine, as fact, legal questions that lie within the
expertise of the foreign court.
101.3 Yet the statute in s 24(2)(d) only requires evidence of conduct, and
only evidence to a prima facie standard.
102. The appellants submit that Re Collins establishes a need to examine foreign law
as part of any transposition exercise. 157 This conflates two aspects of that case.
Evidence of foreign law had been admitted to show that the offence was a
crime under the law of California and the American Court had jurisdiction to
try it. For some time this was seen as necessary to establish the first limb of
double criminality, but it is now an outdated view. In Canada, McVey has since
established that it is unnecessary to prove the act charged was a crime under
the law of the requesting state. The law of the United Kingdom has developed
in the same way, as Norris explains.
155 R (Al-Fawwaz) v Governor of Brixton Prison [2002] 1 AC 556, [2001] UKHL 69 at [109]-[110] [US-AUT-085-2850].
156 United States of America v McVey, above n 130, at [41], [74]-[75] [US-AUT-016-0805].
157 Re Collins (No 3) (1905) 10 CCC 80 (BCSC) [US-AUT-120]. Synopsis of submissions for Messrs Ortmann and
van der Kolk at D7.11.
39
103. The evidence of Californian law was not needed in Collins to support the
simple proposition about transplanting the foreign environment in which the
acts had occurred: 158
No one would argue that a person making a false oath before a qualified
official in the United States could not be extradited for perjury on the
ground that, had the oath been taken before the official in Canada, it
would not have been valid.
104. Collins was relevant to the transposition applied in Norris, but this early (1905)
case is not good authority for the claim that proof under foreign law is
necessary in a conduct-based system.
105. Nor is it correct that Federal Republic of Germany v Schreiber affirms the need for
evidence of foreign law, to establish the “foreign legal context.” 159 The Court
explicitly rejected the submission “that it is necessary to advert to the German
definition of income to satisfy the double criminality”. 160 Further, “[t]he
definition creating the legal obligation to pay tax does not define the wrong of
income tax evasion. The test for extradition is double criminality, not double
taxability.” 161
Second submission: if copyright status does form part of the relevant conduct to be proved, there is prima
facie evidence from which status and infringement can be inferred.
106. Nothing in s 24(2)(d)(i) requires any legal status to be proved under
New Zealand or foreign law. But if this evidential step is read to mean that
copyright status is part of the “conduct constituting the offence”, the ROC
provides evidence from which this and subsequent infringement can be
inferred.
107. The United States would not be obliged, as the appellants argue, to set forth all
the matters that would definitively prove at trial (in both jurisdictions) the
infringement of the copyright in particular files. At most, it would only need
to provide summarised evidence from which a reasonable inference of
infringement may be drawn.
158 Anne Warner La Forest La Forest’s Extradition to and from Canada, (3rd ed, Canada Law Book Inc, Ontario, 1991) at
70 [US-CAA-058-1849].
159 Synopsis of submissions for Messrs Ortmann and van der Kolk at D4.6.
160 Federal Republic of Germany v Schreiber (2006) 206 CCC (3rd) 339 at [42] [US-AUT-065-2343].
161 At [45] [US-AUT-065-2344].
40
108. This was directly addressed in the ROC: 162
The MPAA, RIAA, and BSA representatives, as well as other copyright

owners will testify that the infringing copies of copyrighted works that
were available on the Mega Sites, and that were downloaded by third
parties and Agent Poston… were copyrighted at the time they were
downloaded… In addition, these representatives will testify that the
Mega Sites were not authorized by the copyright owners to reproduce or
distribute these copyrighted works.
109. Infringement may be inferred in other ways:
109.1 Count 4 (“Taken”): infringement may be inferred from the pre-

release timing and circumstances of Mr van der Kolk’s upload, the
name of the file (“Taken 2008 DVDRip Repack [A Release Lounge
H264 By Micky22].mp4.”), the sharing of the URL link and its
viewing on nine occasions by users of Megavideo. 163
109.2 Count 8 (YouTube): There is evidence that owners of YouTube

clips asserted copyright in the works they uploaded to that site, and
infringing copies were reproduced on Mega sites without their
authorisation. Further, there is evidence that the appellants acquired
the YouTube clips by their own automated download software –
“praying” that YouTube was not running a “fraud detection”
system. 164
109.3 Counts 5-7: Prima facie evidence of infringement is provided by the

(i) the nature and content of the files Agent Poston viewed, which all
embodied well-known commercial films, television programmes and
software and (ii) receipt of the copyright owners’ request for
takedown, the validity of which was acknowledged to the extent of
162 ROC at [42(d)] [B-0215]. In the courts below, the appellants have criticised the form in which this evidence is
summarised. These complaints were rejected by the Court of Appeal: CA judgment at [249] [SC.001.099].
Synopsis of submissions for Messrs Ortmann and van der Kolk at D7.11. The formula used complies with
Canadian expectations of ROC evidence. If it is certified that a witness is available to give certain evidence it is
not necessary for the ROC to explain how they are able to give that evidence. United States of America v Doak 2015
BCCA 145, (2015) 323 CCC (3d) 219 at 29–30 and 42-46 [US-AUT-152-4425]. It is unnecessary to prove that
every source of evidence will attend as a witness at a future trial: “…the manner in which that evidence is
tendered at trial is not a requirement of availability… In short the evidence must be available at trial, but the
method and procedure of adducing that evidence is a matter for the requesting state.” United States of America v
Fraser 2015 BCSC 604 at [41]–[43] [US-AUT-154-4466]. For an example of the expected evidence of a
confidential informant, see United States of America v Guecara-Mendoza 2018 BCCA 55 at [4].
163 HC judgment at [349] [CA.1.0116].
164 Supplementary Materials Volume 2 at [313] and following [US-SUB.02b]. See also HC judgment at [364]
[CA.1.0119].
41
deleting the URL links identified. 165 Megaupload professed to be a

pure cyber locker and not an active distributor, so it claimed no
licence in relation to any copyright works.
110. As the Court of Appeal observed: 166
… it is safe to infer from the ROC that copyright status will be

proved at trial. It is unrealistic to suggest that copyright did not
attach to major films such as the Lord of the Rings trilogy, or to
ignore the tens of thousands of take-down notices issued by
copyright owners, or to overlook evidence that the appellants
themselves admitted to being pirates.
PART TWO: THE DECISION TO OVERRULE UNITED STATES OF

AMERICA V CULLINANE
Introduction
111. While the Court of Appeal’s overall decision was a clear and comprehensive
distillation both of the relevant law and its application to the appellants’ case, it
is respectfully submitted that it made an error when it decided to depart from
its 2003 decision in Cullinane. 167
112. For the reasons already outlined, the evidence against the appellants
comfortably establishes they would, if charged here, have a case to answer
under both the Copyright Act and various provisions of the Crimes Act on all
counts. 168 The Court was also correct to hold that those domestic offences are
reflected in the Treaty. The fact the appellants were part of an organised group
whose offending would, in New Zealand, attract a maximum penalty of more
than four years’ imprisonment, means their conduct is automatically captured
by the Treaty via s 101B of the Extradition Act. 169
113. Accordingly, the Court was right to conclude that its decision not to follow
Cullinane did not affect the appellants’ eligibility for surrender. That said, the
Court’s conclusion that the Treaty and the Extradition Act impose cumulative
burdens, and do not represent alternative pathways to eligibility, will in other
cases make extradition considerably more difficult than either Parliament, or
165 HC judgment at [359] [CA.1.0118]; CA judgment at [260] [SC.001.102].

166 CA judgment at [252] [SC.001.100].
167 United States of America v Cullinane, above n 6 [US-AUT-009].
168 See Part One.
169 Extradition Act 1999, s 101B [US-AUT-001-0070].
42
the framers of the Treaty, intended it to be. One area where the Court’s
approach will render the Treaty ineffective is in fraud cases.
114. Fraud and false pretences – broadly and generically expressed in art II.16 – are
Treaty offences. 170 The Court was wrong to hold that the extradition pathway
based on art II.16 “falls away”. 171 The Court did not explain that conclusion,
but it appears it declared art II.16 an invalid pathway because s 257 of the
Crimes Act (which in 1970 created a generic fraud offence that art II.16
mirrored) has been repealed and replaced by a range of more modern fraud
provisions. As a result “conspiracy to defraud” as the phrase was used in 1970,
is no longer a criminal offence in New Zealand. Adopting the Court’s
reasoning, there is no treaty-based mechanism by which an accused fraudster
(who acts alone and is therefore outside the scope of s 101B) may be
extradited. 172
115. That conclusion would, in another case, deprive the United States of access to
the Treaty altogether, and in the present case it closes off a valid pathway
which requires no reference to s 101B or today’s Crimes Act. The conduct in
which the appellants are alleged to have engaged represents a large-scale
conspiracy to defraud copyright holders. At the time New Zealand and the
United States entered the Treaty, commercial-scale fraud involving intellectual
property rights was commonly prosecuted pursuant to general fraud provisions
like s 257. Article II.16 was designed to cover exactly the kind of conduct at
issue in this case.
Summary
116. A key issue for this part of the appeal is whether the Treaty was designed to
make it easier or harder to extradite fugitives between New Zealand and the
United States. In Cullinane, the Court held the Treaty was designed to
streamline and simplify the identification of extradition offences, and that the
courts needed to look no further than the list of offences in art II when
deciding whether the defendant was being sought for an extradition offence. 173
In the present case, the Court held that treaties were referred to in s 4 because
171 CA judgment at note 253; [SC.001.075]; see also [232] [SC.001.092].
172 Though an ad hoc request could be made under the Extradition Act 1999, s 60 [US-AUT-001-0048]. .
43
“they might further restrict extradition”. 174 In effect, the Court held that the
Treaty was designed to impose additional burdens, over and above those a
non-treaty country must negotiate. It is respectfully submitted that conclusion
was wrong.
117. In Cullinane, the Court held that in order to establish an extradition offence the
requesting state needed only to show that the evidence established that the
essential conduct of the person sought fell within one of the generic provisions
enumerated in the Treaty. There was no need to take a further step and
demonstrate double criminality. The Court also noted that the simplified
treaty-based procedure was not the only mechanism for securing extradition;
any non-treaty offence could be the subject of an ad hoc request under s 60, 175
which would then be dealt with under Part 3 in the usual way. It follows that
the rule in Cullinane was that the Treaty and the Extradition Act represented
alternative and complementary pathways to extradition. If the offence was
listed in (or otherwise incorporated into) the Treaty, no further inquiry was
necessary; if not, the person sought was still eligible for surrender via s 60
provided the normal requirements of the Extradition Act could be met.
118. In the present case the Court decided that the requirements of both the Treaty
and the Extradition Act must be satisfied. The practical effect is that it will be
easier to demonstrate eligibility for extradition to most non-treaty countries
than it will be to extradite someone to the United States. This will be the case
despite:
118.1 Sections 11 and 105 of the Extradition Act, 176 which require the Act
to be construed in a way which gives effect to the Treaty (and which
expressly contemplate even mandatory restrictions on surrender being
overridden by inconsistent provisions in an extradition treaty);
118.2 The opening words of the Treaty (“New Zealand and the United
States of America, desiring to make more effective the cooperation of the two
countries for the reciprocal extradition of offenders”), 177 and
174 CA judgment at [84] [SC.001.038].

176 Extradition Act 1999, ss 11 and 105 [US-AUT-001-0012], [US-AUT-001-0072].
177 New Zealand – United States Treaty 1970 [US-AUT-002-0088].
44
118.3 The United States’ status as one of the very few “exempted”
countries under s 17, 178 which permits it to access the record of the
case procedure.
119. The Court’s decision also means that if an extradition request complies with
the Treaty, but does not comply with s 4, then extradition must be refused.
This would require New Zealand to advise the United States that its domestic
law prohibits it from giving effect to its treaty obligations.
120. It is submitted the Court of Appeal was wrong to decline to follow Cullinane,
which demonstrates that the Extradition Act was designed to give effect to the
Treaty, rather than to restrict the Treaty’s scope.
121. Finally, even applying the law as the Court of Appeal stated it, the conclusion
that art II.16 no longer provides an extradition pathway is wrong. While the
labels attached to the fraud provisions in the Crimes Act changed when the old
s 257 was repealed and replaced by a suite of updated offences, 179 the essential
conduct with which the appellants stand charged remains criminal under New
Zealand law.
122. The Extradition Act provides, 180 and the courts have repeatedly held, that
when examining double criminality it is the substance of the defendant’s
conduct which is important rather than the label the statute attaches or the
exact elements of the offence. It is as illegal today to engage in a fraudulent
conspiracy as it was when the Treaty came into force.
Double criminality
123. The first question in this part of the appeal is whether, as the appellants
contend (and the Court of Appeal held) a double criminality requirement is to
be read into the Treaty, either by some internal construction of the text of the
Treaty, or by operation of the Extradition Act. 181
124. The respondent says that the general definition of extradition offence in s 4 of
the Extradition Act – including the requirement that the offence be punishable
by 12 months’ imprisonment both in New Zealand and in the requesting

179 See Crimes Amendment Act 2003.
180 See Extradition Act 1999, s 5(2) [US-AUT-001-0010].
45
country – has no application in the face of an extradition treaty which contains

its own framework for determining which offences are captured. 182 The Treaty
requires double criminality only in certain (clearly expressed) instances. In all
other cases an extradition offence is present if the conduct in question falls
within one of the generic offence descriptions contained in art II.
125. In both the Court of Appeal and this Court, the appellants have based their
criticism of Cullinane on a line of judicial observations which culminates in
Lord Millett’s obiter comment from 2001, in Al Fawwaz, that double
criminality lies at the heart of the British law of extradition. 183
126. The appellants are wrong to characterise double criminality as a fundamental

principle of extradition law. Even in the United Kingdom, where a general
requirement of double criminality has been a feature of extradition statutes
since 1870, double criminality is no longer a universal precondition to
extradition. Only two years after Al Fawwaz was decided, the Extradition Act
2003 (UK) dispensed with the double criminality requirement for serious
offences captured by the European Arrest Warrant framework (effectively a
multilateral extradition treaty). 184 As noted in Nicholls, Montgomery and
Knowles: 185
One important change from the [Extradition Act] 1989 regime should be
noted. Whereas, under the old law, dual criminality had to be satisfied in
all cases, that is, the alleged conduct had to be an offence under the law
of the requesting state and, had it been committed in the UK, an offence
there, the [Extradition Act] 2003 removes dual criminality in relation to
Category 1 territories which are part of the EAW scheme in relation to
the offences specified in the EAW and listed in Sch 2. Accordingly, for
the first time, defendants can be extradited for conduct that would not
be criminal under UK law if committed there.
127. Schedule 2 to the Extradition Act 2003 contains a list which is similar in its
scope to art II of Treaty. 186 The approach to identifying an extradition offence,
for offences contained in the Schedule, is very similar to the approach the
181 CA judgment at [93] [SC.001.041].

183 R (Al-Fawwaz) v Governor of Brixton Prison, above n 155, at 94 [US-AUT-085-2846].
184 Council Framework Decision (EU) (2002/584/JHA) (13 June 2002) on the European Arrest Warrant and the
surrender procedures between Member States.
185 Clive Nicholls, Clare Montgomery and Julian Knowles The Law of Extradition and Mutual Assistance (3rd ed, Oxford
University Press, Oxford, 2013), at [2.33] [KD-AUT.272].
186 Extradition Act 2003 (UK), sch 2 [MO-AUT.020].
46
Court of Appeal affirmed in Cullinane, 187 and confirms that a treaty with a
trusted partner is an alternative way of ensuring fugitives are not sought for
offences alien to our system of criminal justice.
128. The developments in the United Kingdom highlight the fact that double
criminality, while a common feature of extradition law, is only fundamental
where a statute or treaty makes it so. As Professor Williams observed in
1991: 188
It is important to note right at the outset … that the double criminality

principle has not been viewed as a principle of customary international
law automatically binding states. Instead, it has been considered a
creature of treaty and statute. One commentator has argued that double
criminality “is not so much a rule of international law as a consideration
based on policy and expediency.” Thus, a fugitive cannot raise the
double criminality question as a bar to extradition if the applicable treaty
or statute – or both, depending upon the Williams forum – is silent. In
the famous case of Factor v. Laubenheimer, 189 the Supreme Court of the
United States held that the principle is based not on international law but
on treaty.
129. The Canadian Supreme Court made the same point in McVey, 190 a decision on
which the appellants place some reliance. McVey was concerned with an act
and a treaty which expressly provided that extradition crimes must constitute
criminal offences in both jurisdictions. 191 La Forest J, writing for the majority,
observed: 192
7. During the course of the argument and in the courts below, reference
was made to abstract principles and “rules” of extradition such as double
criminality, specialty and reciprocity as if they had independent force.
The arguments and the reasons in the courts below at times also
187 See Extradition Act 2003 (UK), s 64(2) [MO-AUT.020]. The only requirements are that the requesting country
certifies that the offending falls within the Schedule and is punishable in the requesting state by imprisonment for
at least three years. In explaining the proposed departure from the double criminality requirement, a Home
Office discussion paper noted:
We considered that it was not necessary to retain the requirement for the offence to be an offence
in both the requesting and requested country (dual criminality). This was thought to be an
inappropriate judgement on the criminal justice systems of our European partners. If an offence is
a crime on the statute book of our European partners then the UK should respect that.
United Kingdom Home Office The Law on Extradition: A Review (2001) at 21 [US-SCA-007-2774].
188 Sharon Williams “The Double Criminality Rule and Extradition: A Comparative Analysis” (1991) 15(2) Nova Law
Review 581 at 582 [US-SCA-013-2913].
189 Factor v Laubenheimer 290 US 276 (1933) [US-AUT-024].
190 United States of America v McVey, above n 130 [US-AUT-016].
191 The relevant provision in the Treaty on Extradition between the United States of America and Canada 1976
provided [US-CAA-025]:
Article 2
(1) Persons shall be delivered up according to the provisions of this Treaty for any of the
offenses listed in the Schedule annexed to this Treaty, which is an integral part of this Treaty,
provided these offenses are punishable by the laws of both Contracting Parties by a term of
imprisonment exceeding one year.
192 United States of America v McVey, above n 130, at [7]-[10] [US-AUT-016-0794].
47
evidenced some misunderstanding about the respective function of

extradition treaties and statutes, and consequently of the separate roles of
the executive and the courts both of this country and the requesting
state. This interplay of treaty and statute was at times contrasted, in my
view incorrectly, with that prevailing in Great Britain. It seems useful
then to get down to basics.
8. To begin with, it is important to remember that under customary

international law states have no obligation to surrender fugitives from
justice to other states; see United States v. Allard [1991] 1 S.C.R. 861, 193…
at p. 865 [S.C.R.]. To create such obligation, it is necessary to enter into
treaties. So far as the international obligations of Canada (and for that
matter other states) are concerned, therefore, they must be found within
the confines of the treaties. Of course, some assistance may be found in
the practices followed by other states and there is considerable similarity
in the practices of different states. In discussing these practices,
international writers have for convenience identified certain principles or
“rules” such as double criminality and so on. These are convenient
labels, and this international practice, as noted in Allard (at p. 865), “may
no doubt have a certain value in interpreting the law”, but in the end the
international duty must be found in the terms of the appropriate treaty.
This was the position taken by this Court in R. v. Parisien. 194
10. Canada’s international obligations, then, are to be found in the treaty.

The purpose of the Act is to ensure that the law of the land conforms to the
treaty.
Extradition treaties
130. The Vienna Convention on the Law of Treaties, 195 to which New Zealand is a
party, provides: 196
Article 26
“Pacta sunt servanda”
Every treaty in force is binding upon the parties to it and must be
performed by them in good faith.
Article 27
Internal law and observance of treaties
A party may not invoke the provisions of its internal law as justification
for its failure to perform a treaty. This rule is without prejudice to article
46.
131. In R v Governor of Ashford Remand Centre, ex p Postlethwaite, 197 Lord Bridge

observed:
193 United States of America v Allard [1991] 1 SCR 861.

194 R v Parisien [1988] 1 SCR 950.
195 Vienna Convention on the Law of Treaties, 1155 UNTS, 331, arts 26-27 [US-AUT-004-0204].
196 Vienna Convention on the Law of Treaties, art 46, which concerns internal provisions which affect a country’s
competence to enter into treaties, is not relevant for present purposes.
48
“In my judgment these treaties ought to receive a liberal interpretation,

which means no more than that they should receive their true
construction according to their language, object, and intent.”
I also take the judgment in that case as good authority for the
proposition that in the application of the principle the court should not,
unless constrained by the language used, interpret any extradition treaty
in a way which would “hinder the working and narrow the operation of
most salutary international arrangements.” The second principle is that
an extradition treaty is “a contract between two sovereign states and has
to be construed as such a contract. It would be a mistake to think that it
had to be construed as though it were a domestic statute:” Reg. v. Governor
of Ashford Remand Centre, Ex parte Beese [1973] 1 W.L.R 969, 973 per Lord
Widgery CJ. In applying this second principle, closely related as it is to
the first, it must be remembered that the reciprocal rights and obligations
which the high contracting parties confer and accept are intended to
serve the purpose of bringing to justice those who are guilty of grave
crimes committed in either of the contracting states.
132. This passage was approved by the Court of Appeal in Edwards. 198 The Court
noted that Lord Bridge’s comments are consistent with the construction
mandated by the Vienna Convention, which is now considered declaratory of
customary international law.
133. These principles are reflected in s 11 of the Extradition Act, which provides: 199
11 Construction of extradition treaties
(1) If there is an extradition treaty in force between New Zealand and an

extradition country, the provisions of this Act must be construed to
give effect to the treaty.
(2) Despite subsection (1), no treaty may be construed to override—
(a). section 7 [mandatory restrictions]; or
(b). section 24(2)(d) or section 45(5) [sufficiency of

evidence]; or
(c) subsection (2)(b) [danger of torture] or subsection (3)(a)

[prospect of death penalty] of section 30 (including
where those provisions are applied undersection 49); or
(d) any provision conferring a particular function or power

on the Minister or a court.
(3) This section is subject to section 105.
197 R v Governor of Ashford Remand Centre, ex p Postlethwaite [1988] AC 924 at 947 [KD-AUT.163]. The opening quote
is taken from the speech of Lord Russell of Killowen in Re Arton (No 2) [1896] 1 QB 509 at 517.
198 Edwards v United States of America, above n 72, at [25]-[26] [US-AUT-010-0574].
49
134. Section 4 is not among the provisions listed in s 11(2); on the contrary, the s 4
definition is expressly subject to treaty. However, the Court of Appeal
effectively treated s 4 as though it was a s 11(2) provision.
135. Section 105 provides that even a number of the provisions listed in s 11(2)
have no application in the face of an inconsistent provision in an existing treaty
(like the United States Treaty). Section 105 provides: 200
105 Certain conditions in Extradition Act 1965 continue to apply
(1) Subsection (2) applies to any Order in Council referred to in

subsection (1) or subsection (2) of section 104 that has not been
amended and has not ceased to have effect since the commencement
of this Act.
(2) If this subsection applies,—
(a) this Act applies in relation to the extradition country to

which the Order in Council relates subject to the conditions to
which the extradition country was subject—
(i) under subsections (1) to (6) of section 5, section 5A,

and section 9(1)(f) of the Extradition Act 1965; or
(ii) by virtue of the operation of section 5(7) of that Act;

and
(b) sections 7, 8, and 30(3)(d) (including where section 30(3)(d)

is applied under section 49) of this Act do not apply in
relation to the extradition country to the extent that they are
inconsistent with any provision of the relevant extradition
treaty.
136. Section 105’s relationship with s 11(2) was explained by a full bench of the
Court of Appeal in Yuen Kwok-Fung v Hong Kong Special Administrative Region of the
People’s Republic of China. 201 For the Court, Keith J observed: 202
… the protections stated in [s 11(2)] essentially look to treaties

concluded in the future. That arises from [s 11(3)] which makes s 11
subject to s 105, a provision concerned with treaties in force when the
1999 Act came into force.
137. In Bujak v Minister of Justice, 203 the Court applied s 105 in the context of
humanitarian reasons for refusing surrender. In Bujak, the Treaty made no
provision for extradition to be refused on humanitarian grounds of the kind
200 Extradition Act 1999, s 105 [US-AUT-001-0072] (emphasis added).

201 Yuen Kwok-Fung v Hong Kong Special Administrative Region of the People's Republic of China [2001] 3 NZLR 463 (CA)
[US-AUT-013].
202 At [18] [US-AUT-013-0715].
203 Bujak v Minister of Justice [2009] NZCA 570 [US-SCA-014].
50
referred to in s 30(3)(d) of the Extradition Act. 204 Writing for the Court,
Arnold J observed: 205
[45] The extradition treaty sets out the basis on which the contracting
states have agreed that each will meet extradition requests from the
other. Where a request is made consistently with the terms of the
extradition treaty, the requesting state is entitled to the return of the
fugitive. … To the extent that the extradition treaty is inconsistent with
the Act in recognising humanitarian concerns, the extradition treaty
prevails: s 105(2)(b) of the Act.
[46] There is a single exception to this, and that relates to a return to

torture. Although there is no prohibition in the extradition treaty on
returning a fugitive to torture, that is absolutely forbidden under the Act.
The prohibition on a return to torture provides the only basis on which
the extradition treaty can be “overridden” in this context.
[47] As will be apparent, we accept the primacy of the extradition treaty

vis-a-vis the Act. …
138. In Yuen Kwok-Fung, the Court referred to the combined effect of s 11 and arts
26 and 27 of the Vienna Convention on the Law of Treaties: 206
[15] Section 11(1) is a very strong direction. The “construction” it directs

is more than the mere interpretation of the Act. It uses much stronger
wording than the interpretation directions in the Interpretation Act 1999,
s 4 and the New Zealand Bill of Rights Act 1990, s 6 which is also to be
read with ss 4 and 5. To use the wording of subs (2) of the Extradition
Act, the Act is “overridden” by inconsistent treaty provisions or, as the
equivalent provision in s 3(4) of the Extradition Act 1965 put it, the Act
must be read “subject to” the terms of the treaty and construed to give
effect to it. …
[16] The process which s 11 of the New Zealand Act requires can
perhaps be better thought of as reconstruction of the Act, to the extent it
is inconsistent with the treaty, to make it consistent. The strength of the
direction recognises the basic principles of international law that treaties
must be complied with and that a state cannot invoke its internal law to
justify its failure to perform a treaty (arts 26 and 27 of the Vienna
Convention on the Law of Treaties).
139. The first of the four objects of the Extradition Act listed in s 12 is “to enable
New Zealand to carry out its obligations under extradition treaties.” 207
140. It follows that the Extradition Act reflects and affirms the supremacy of
extradition treaties and the importance of New Zealand observing the
obligations it has undertaken pursuant to it.

205 Bujak v Minister of Justice, above n 203 at [45]-[47] [US-SCA-014-2968].
206 Yuen Kwok-Fung v Hong Kong Special Administrative Region of the People's Republic of China, above n 201, at [15]-[16]
[US-AUT-013-0714]. Vienna Convention on the Law of Treaties, above n 195, arts 26-27 [US-AUT-004-0204].
51
The New Zealand – United States Treaty

141. The 1970 Treaty was the first extradition treaty New Zealand concluded in its
own right. 208 The United States, on the other hand, had a long history of
extradition treaties. At around the time it was negotiating the New Zealand
treaty it had begun to move from traditional list-based (or “enumerative”)
treaties – instruments which, like New Zealand’s treaty, set out a self-contained
list of offences for which extradition could be granted – to “eliminative”
treaties. The latter form of treaty, very common nowadays, tends to define
extradition offences with reference to minimum penalty and double criminality.
As the Explanatory Note to the Extradition Bill 1998 observed, 209 enumerative
treaties are now regarded as outdated. Eliminative treaties are ambulatory, in
that they automatically exclude obsolete offences and incorporate new ones,
whereas enumerative treaties need to be updated.
142. Though not framed in the style favoured today, New Zealand’s treaty with the
United States remains in force. Article I commits each party to “extradite to
the other, in the circumstances and subject to the conditions described in this
Treaty …persons charged with of convicted of any of the offences mentioned in
Article II of this Treaty”. 210 In doing so, art I performs the role played, in the
Extradition Act, by s 4. With some express exceptions (which would, of
course, be unnecessary if the Treaty contemplated a general double criminality
requirement) art II does not require the requesting state to show that the
conduct alleged represents an offence in both jurisdictions.
143. In Cullinane the Court noted a number of indications that the general definition
of “extradition offence” in s 4, and in particular the double criminality
requirement, did not apply in light of the Treaty’s self-contained description of
its scope. 211 These included:
143.1 The fact the s 4 definition of “extradition offence” is expressly made

“subject to an extradition treaty”;
208 New Zealand had inherited a number of treaties from the United Kingdom.
209 CA judgment at [78] [SC.001.036]; Extradition Bill 1998 (146-1) at iii [MO-AUT.195].
210 New Zealand – United States Treaty 1970, art I [US-AUT-02-0088].
211 United States of America v Cullinane, above n 6, at [56]-[63] [US-AUT-009-0558].
52
143.2 The s 11 requirement, discussed in more detail at [133]-[138] above,

that the statute be construed (or “reconstructed”) to give effect to the
Treaty;
143.3 The fact the Treaty itself contains no general requirement to show
double criminality. 212 Even more tellingly, the fact the Treaty requires
double criminality in specific circumstances indicates it was not
generally contemplated. The need to show double criminality in
certain limited situations is, quite literally, the exception which proves
the rule. These include:
143.3.1 Article XVIII, which provides that the Treaty applies to art
II offences committed before as well as after the Treaty
came into force, unless it “was not an offence under the laws
of both countries at the time of its commission”; 213 and
143.3.2 Article II.7 provides that unlawful sexual acts with children
“under the age specified by the laws of both the requesting
and the requested parties” may be the subject of
extradition. 214
144. The Extradition Act helps provide some of the ambulatory effect the Treaty
lacks. For example, s 60(1)(a)(ii) provides an alternative route to extradition in
cases where a person is sought for an offence which falls outside scope of the
Treaty. 215 Similarly, s 101B (itself a provision giving effect to international
obligations regarding transnational organised crime) automatically incorporates
certain offences involving an organised criminal group into the Treaty. In the
present case, all the underlying New Zealand offences – s 131 of the Copyright
Act 216 and ss 228, 240 and 249 of the Crimes Act 217 – are deemed Treaty
offences by s 101B. The countries’ mutual understanding of some generic
terms, such as rape and sodomy (discussed in more detail below), may also
evolve over time.

213 New Zealand – United States Treaty 1970, art XVIII [US-AUT-002-0097].
214 New Zealand – United States Treaty 1970, art II.7 [US-AUT-002-0089]; Extradition Act 1999, s 60(1)(a)(ii) [US-
AUT-001-0048].
215 Extradition Act 1999, s 60(1)(a)(ii) [US-AUT-001-0048].
217 Crimes Act 1961, ss 228, 240 and 249 [US-AUT-005-0238].
53
145. In Edwards, Keith J writing for the Court, explained how broad and generic
terms, like those in art II, should be interpreted by the eligibility court. He
noted that it was not appropriate to limit the terms of the offences by tying
them to national definitions. 218 He added: 219
… our task is not to reach a decision solely under the law of one
particular jurisdiction. Rather, it is to determine whether the counts as
charged do fall within the ordinary meaning of items 14, 15, 16 and 20 in
their context and in the light of the treaty’s purpose and object. A
primary purpose, emphasised for us by s 12(a) of the Act, must be to
fulfil New Zealand’s obligations under the treaty. It is not however a
matter of simply using dictionary definitions which, in any event, differ
and which must be affected by context. Part of the critical context is that
the terms are commonly used for legal purposes, they have legal
meanings, even if again those meanings may vary in detail, and the
members of the delegations of the two countries who in 1970 prepared
the list of property offences included in items 12 – 20 of art II would
have been fully aware of that general legal usage.
146. The elements to be shown for each offence under art II will usually be
straightforward. The offences are familiar, broadly described and, in almost all
cases, easy to understand, and there will seldom be significant doubt about
their intended scope.
Factor v Laubenheimer
147. The legal assumptions underpinning the United States’ enumerative treaties
were the subject of a landmark decision of the United States Supreme Court in
1933, Factor v Laubenheimer. 220 In that case the petitioner, who was charged in
the United Kingdom with receiving money knowing it to have been
fraudulently obtained, was arrested in Illinois, which had no equivalent offence.
He argued he could not be extradited, because double criminality was
fundamental to the law of extradition, and he had committed no crime in the
place he had been found. 221
148. The Supreme Court noted a government policy of limiting treaty offences to
those generally recognised as criminal in both countries, but held that that
218 Edwards v United States of America, above n 72, at [27] [US-AUT-010-0575].

219 At [28] [US-AUT-010-0575].
220 Factor v Laubenheimer, above n 189 [US-AUT-024].
221 At 286 [US-AUT-024-1122]:
… petitioner asserts that it is a general principle of international law that an offense for which
extradition may be had must be a crime both in the demanding country and in the place where the
fugitive is found, and that the applicable treaty provisions, interpreted in the light of that principle,
exclude any right of either country to demand the extradition of a fugitive unless the offense with
which he is charged is a crime in the particular place of asylum.
54
policy did not provide any basis for reading a double criminality requirement
into treaties which did not expressly provide for it. It observed: 222
… that policy, when carried into effect by treaty designation of offenses

with respect to which extradition is to be granted, affords no adequate
basis for declining to construe the treaty in accordance with its language,
or for saying that its obligation, in the absence of some express
requirement, is conditioned on the criminality of the offense charged
according to the laws of the particular place of asylum. Once the
contracting parties are satisfied that an identified offense is generally
recognized as criminal in both countries there is no occasion for
stipulating that extradition shall fail merely because the fugitive may
succeed in finding, in the country of refuge, some state, territory or
district in which the offense charged is not punishable. No reason is
suggested or apparent why the solemn and unconditional engagement to
surrender a fugitive charged with the named offense of which petitioner
is accused should admit of any inquiry as to the criminal quality of the
act charged at the place of asylum beyond that necessary to make certain
that the offense charged is one named in the treaty.
149. Factor remains good law in the United States, 223 and informed the drafting of
subsequent treaties. When list treaties make no express provision for double
criminality, the United States will extradite without a showing of domestic
criminality. It may even extradite for conduct which would not be an offence
under its law. 224
150. United States treaties in the period between Factor and the New Zealand treaty
exhibit a range of approaches, from express double criminality, to partial
double criminality based on specific offences or an “essential element” of an
offence, to a continuation of the list method unaccompanied by double
criminality. 225 For example, the original United States – Israel Treaty, signed in
1962, listed 31 offences in art II. But also provided: 226
222 Factor v Laubenheimer, above n 189, at 300 [US-AUT-024-1136].

223 CA judgment at [90] [SC.001.040]. See, for example, Basic v Steck 137 S Ct 196 (2016) (cert. denied); Ye Gon v
Aylor 135 S Ct 2859 (2015) (cert. denied); Yacaman Meza v Holder 134 S Ct 2689 (2014) (cert. denied); Valentine v
United States of America ex rel. Neidecker 299 US 5 (1936).
224 Michael Abbell Extradition to and from the United States, (Martinus Nijhoff Publishers, Leiden, 2010) at 28 [US-
CAA-046-1519]: “Because Section 3184 [18 USC] does not impose a requirement of dual criminality, extradition
may be granted for an offense listed in the applicable extradition treaty, even if the act would not constitute an
offence under United States law, unless the treaty imposes a requirement.” See also Matter of Assarsson 687 F 2d
1157 (1982) [US-CAA-071] and Gallina v. Fraser, 278 F 2d 77, at 79 (2d Cir 1960) [US-CAA-006-0139]:
The right of international extradition is solely the creature of treaty, Factor v. Laubenheimer….
Hence, if the extradition treaty so provides, the United States may surrender a fugitive to be
prosecuted for acts which are not crimes within the United States.
225 A number of United States treaties from around this period contained an express double criminality clause: Iraq
(signed 1934) [US-CAA-013], Sweden (signed 1961) [US-CAA-014], Brazil (signed 1961) [US-CAA-015], Spain
(signed 1970) [US-CAA-016], Denmark (signed 1972) [US-CAA-017]. The treaty with Monaco (signed in 1939)
[US-CAA-019] lists 17 offences and imposes double criminality on attempts, complicity and participation in
those offences. The Liechtenstein treaty (signed 1936) [US-CAA-020] lists 27 offences and provides for
extradition when at least an essential element of the treaty offence is punishable in the requested country. The
55
Extradition shall be granted for any of the offenses numbered 27

through 31 only if the offense is punishable under the laws of both
Parties by a term of imprisonment exceeding three years.
Extradition shall also be granted for attempts to commit or conspiracy to

commit any of the offenses mentioned in this Article provided such
attempts or such conspiracy are punishable under the laws of both
Parties by a term of imprisonment exceeding three years.
Extradition shall be granted for participation in any of the offenses

mentioned in this Article.
151. It follows that the first 26 offences were not subject to proof of double
criminality in the requested state, but the final five were. As the Court of
Appeal noted in Cullinane, given the alternative models available, the choice of
the list model and the selective references to double criminality indicate
deliberate choices “by persons who must be presumed to have been aware of
the decision in Factor v Laubenheimer”. 227
Subsequent New Zealand treaties

152. New Zealand’s treaty-making practice confirms that this country, like the
United States, did not regard double criminality as the cornerstone of an
extradition relationship. New Zealand’s next treaty – with Fiji in 1992 228 – is
equally clear that double criminality is required only in limited circumstances.
153. In the Fiji Treaty, art I commits the parties to extradite persons found within
their territory who are charged with one of the enumerated art II committed
within the territory of the other “or committed outside the territory of the
other but constituting an offence under the law of both Parties”. 229
Liberian treaty (signed in 1937) [US-CAA-021] contains a list of offences with no general double criminality
requirement – some specific crimes have to be punishable in both countries. Double criminality can of course be
coupled with an enumerative list of extradition offences – the point at [58] of Cullinane was simply that the 1970
Treaty had not employed the eliminative method, which would inevitably have brought in double criminality [US-
AUT-009-0558].
226 Convention on Extradition between the Government of the United States of America and the Government of
the State of Israel 1962 [US-CAA-018-0517]. Article II was deleted and replaced by an eliminative provision in
2005.
228 Agreement on Extradition between the Government of New Zealand and the Government of the Republic of
Fiji 1992 [US-CAA-022] (as set out in the Extradition (Republic of Fiji) Order 1992).
229 New Zealand – Fiji Treaty 1992 [US-CAA-022-0554]. The different treatment of double criminality in cases of
extraterritorial offending is reflected in the Home Office’s 2001 The Law on Extradition: A Review, above n 187.
After proposing the abolition of double criminality for most extradition within the European Arrest Warrant
framework, the Home Office noted at 21 [US-SCA-007-2774]:
However, we did question whether this should extend to cases where a state requests an individual’s
extradition on the basis of the state’s extra-territorial jurisdiction over an offence, which did not
occur in the requesting state and where the conduct is not an offence in the requested state. This
could lead to the UK being in the position of having to extradite someone for conduct committed in
the UK and for which is not even an offence in the UK and for which a prosecution could not be
56
154. As in the United States Treaty, the Fiji Treaty covers those charged with
sexual offending against children “under the age specified by the laws of
both the requesting and requested parties.” 230 Article XVIII mirrors the
same article in the United States Treaty, and provides that offences
committed prior to the treaty coming into force will be subject to the Treaty
“provided that no extradition shall be granted for an offence committed
before the date of entry into force which was not an offence under the laws
of both countries at the time of its commission”. 231 When read together, the
United States and Fiji treaties conclusively answer the appellants’ contention
that double criminality has always been part of New Zealand’s extradition
framework.
155. The only other treaty New Zealand struck under the Extradition Act 1965
was the treaty with Hong Kong in 1998. 232 It expressly requires double
criminality for all extradition offences. 233
Section 4 of the Extradition Act

156. In the decision under appeal, the Court of Appeal read down the words
“subject to” in s 4. 234 Although s 4 is not mentioned in s 11, and therefore is
not among the provisions a treaty cannot override, the Court held that s 4
provided an immutable definition of the term “extradition offence”. It held
that the words “subject to an extradition treaty” did not necessarily mean that
the s 4 definition would be subordinate to an alternative treaty-based
definition, but rather that “subject to” could mean “in context, that the one
may be affected by the other.” 235
pursued here. We would welcome views on whether the abolition of the dual criminality requirement
should extend to such circumstances.
231 New Zealand – Fiji Treaty 1992, art XVIII [US-CAA-022-0560].
232 Agreement for the Surrender of Accused and Convicted Persons between the Government of New Zealand and
the Government of the Hong Kong Special Administrative Region of the People’s Republic of China 1998 (as set
out in the Extradition (Hong Kong) Special Administrative Region of the People’s Republic of China) Order
1998) [US-CAA-023].
233 New Zealand – Hong Kong Treaty 1988, art II begings [US-CAA-023-0563]:
Surrender shall be granted for an offence coming within any of the following categories of offences
insofar as it is according to the law of both Parties punishable by imprisonment or other form of
detention for two years or more
235 CA judgment at [66] [SC.001.032]. The Court of Appeal cited the definition of “subject” in Black’s Law Dictionary
(10th ed, 2014) as authority for this alternative definition. The source of the Court’s definition is unclear. The
relevant entry in Black’s Law Dictionary is as follows:
57
157. It is submitted, especially when s 4 is read in the context of a statute which

must, subject to very limited exceptions (themselves derived from treaty
obligations) be “reconstructed” or “overridden” to ensure effect is given to
New Zealand’s treaty obligations, that the Court’s interpretation of the phrase
was wrong. There is no reason to depart from the normal legislative meaning
if “subject to”, which has been understood and applied consistently in the
legislative context for decades. As Megarry J noted in C & J Clark Ltd v Inland
Revenue Commissioners: 236
… the phrase ‘subject to’ is a simple provision which merely subjects the
provisions of the subject subsections to the provisions of the master
subsections. Where there is no clash, the phrase does nothing: if there is
collision, the phrase shows what is to prevail.
Article IX of the Treaty

158. The appellants seek to reassert the primacy of the Extradition Act by
submitting that art IX of the Treaty provides that it is, in fact, the Act which
will prevail in the event of an inconsistency with the Treaty. 237
159. Article IX is a mechanical rather than a substantive provision – it simply

provides that it is for each country to set up a procedural framework within
which extradition requests are considered. In effect, art IX provides that it is
for each country to determine how it complies with its Treaty obligations. The
provision appears, almost word for word, in dozens of American treaties,
including the United States treaty with Canada. 238 It was explained by Sopinka
J in United States v Lépine as follows: 239
With the exception of Art. 4(1)(iii) dealing with offences of a political

nature, the Treaty does not specify by whom extradition issues are to be
determined. Rather, this is left to the laws of the contracting states.
Thus, Art. 8 provides:
subject, adj (14c) 1 Int’l law. Under the power of dominion of another; specif., owing allegiance to a
particular person or state <subject people>. 2. Exposed, liable, or prone <a climate subject to
extreme temperatures>. 3. Dependent on or exposed to (some contingency); esp., being under
discretionary authority <funding is subject to the board’s approval>. 4. Referred to above; having
reference to the current discussion<the subject property was then sold to Smith>.
236 C & J Clark Ltd v Inland Revenue Commissioners [1973] 2 All ER 513 at 520 [US-SCA-006-2888]. On the same page,
Megarry J noted that the alternative construction would “strike terror into the hearts of Parliamentary counsel
when contemplating their output over the last two decades.”
237 New Zealand – United States Treaty 1970, art IX provides [US-AUT-002-0093]:
The determination that extradition based upon the request therefor should or should not be granted
shall be made in accordance with the laws of the requested Party and the person whose extradition is
sought shall have the right to use such remedies and recourses as are provided by such law.
238 Treaty on Extradition between the United States of America and Canada 1976 [US-CAA-025].
239 United States of America v Lépine [1994] 1 SCR 286 at 301 [US-AUT-162-4723].
58
ARTICLE 8
The determination that extradition should or should not be

granted shall be made in accordance with the law of the
requested State and the person whose extradition is sought
shall have the right to use all remedies and recourses
provided by such law.
While Art. 1 restricts extradition to those who have been convicted or

are charged with an offence committed within the respective territories
of the parties, and Art. 10 specifies that extradition is only to be granted
if under the laws of the requested state the fugitive would be committed
for trial, determination of these matters is left to the laws of the
requested state.
160. The reference in art IX of the Treaty to “remedies and recourses”

contemplates a local procedural regime for extradition decisions. 240 It provides
that it is not, for example, a breach of the Treaty for the requested country to
release a defendant on bail or set up an appeal framework (though equally it is
not obliged to do so). The appellants’ submission that the treaty negotiators
“confronted the possibility that the terms of the Treaty might be incompatible
with the local laws of the requested state” is simply incorrect. 241 Rather, as
Sopinka J observed, the mechanics of the determination, including the identity
of the ultimate decision-maker, is an area the Treaty reserves for domestic law.
United States of America v Cullinane

161. In Cullinane, the United States sought extradition on range of charges arising
from an alleged visa fraud, none of which, the Court held, fell comfortably into
art II. The Court decided that the alleged offending was not captured by the
Treaty, and that the United States should, instead, make an ad hoc request
under s 60. 242
162. The Court took the opportunity to review the correct approach to the Treaty.
The lower courts had assumed that extradition pursuant to the Treaty required
a cumulative process in which the requesting state first showed that the
offence fell within the Treaty. Having done that, the lower courts held the
requesting state was also required to establish double criminality under s 4.
The Court of Appeal held this approach was incorrect, and that in cases
240 New Zealand – United States Treaty 1970, art IX [US-AUT-002-0093].

241 Synopsis of submissions for Messrs Ortmann and van der Kolk at C2.5.
59
subject to the Treaty, demonstrating that the offence fell within the Treaty was
enough. As the Court put it: 243
[55] As s 11 requires that the Act be construed to give effect to an

applicable extradition treaty we do not consider it appropriate just to add
the United States/New Zealand treaty definition to the s 4 definition.
We consider that the test in art II of the United States/New Zealand
treaty replaces the test set out in s 4, instead of merely being added to it
(especially given the added “subject to” qualification in s 4 itself). The
proper inquiry for a Court faced with an extradition request made by the
United States is therefore whether the alleged conduct satisfies the
requirements of the United States/New Zealand treaty, and the Court
should no longer concern itself with the three-stage test that has been
utilised to date in this case.
163. After referring to the indications in the text of the Treaty itself (referred to in
[143.3] above) which showed double criminality was contemplated as the
exception, rather than the rule, the Court noted that its interpretation was
unlikely to make a substantial difference in many cases, given that most
offences in art II are offences in both jurisdictions. Nonetheless, the Court
observed that the removal of the cumulative doubt criminality requirement
would produce “a considerable simplification of the inquiry required by s 4 in
cases such as the present.” 244
164. As noted above, the Court’s approach to the Treaty did not freeze the criminal
law, for extradition purposes, in the year 1970. In cases involving non-treaty
offences – offences which do not fall within any of the generic descriptions in
art II, and which are not incorporated by ss 101A and 101B 245 – the United
States instead makes an ad hoc request under s 60. 246 Cases which do not fall
under the simplified Treaty procedure can be dealt with under the Act in the
usual way.
165. If the countries’ positions were reversed the United States would apply
Factor, 247 and determine eligibility with reference to the Treaty alone. One
benefit of Cullinane is that it ensured the courts of both countries would
interpret the Treaty in the same way.

245 Extradition Act 1999, ss 101A and B [US-AUT-001-0069].
60
The present case

166. In the present case, the Court decided to return to the pre-Cullinane status quo,
whereby the requested state was required to demonstrate that the offence for
which extradition is sought is included in the Treaty and meets the s 4 standard.
The Court did not seek to replace the Treaty’s enumerative framework with
the more modern eliminative approach. Rather, the effect of the Court’s
decision is that the offence must satisfy both the Treaty standard – in that the
offence must be referred to in art II or otherwise imported – and the more
modern eliminative approach created by the Extradition Act.
167. There is no dispute that the Treaty must be given a “generous and purposive
effect”. 248 The last phrase is a trite but important one – a purposive approach
requires the courts to ascertain and apply the two governments’ intention when
entering the Treaty, even if a different approach would prevail if a new treaty
were being drafted today. And the need for a “generous” interpretation means
the principles underpinning the Treaty, including the need for “more effective
… co-operation” on extradition, must be given effect to if possible. 249
168. The Court’s decision will not enhance effectiveness. As noted above, the
Court held that “treaties were incorporated into the definition [of extradition
offence] because they might further restrict extradition.” 250 This proposition
cannot be reconciled either with the role of treaties generally, 251 or with the
parties’ intentions in entering the Treaty in 1970.
169. The latter conclusion accords with the Law Commission’s view of the
appropriate relationship between extradition treaties and the s 4 definition. In
its 2014 Extradition and Mutual Assistance in Criminal Matters issues paper it
observed: 252
[5.12] …we also propose that the Act should state that bilateral
extradition treaties can supplement the Act’s definition [of an extradition
offence]. Where a bilateral treaty contains a list of offences, a particular
extradition request from that country could relate either to an offence
248 Extradition Act 1999, s 5 [US-AUT-001-0010]; CA judgment at [59] [SC.001.029], citing Edwards v United States
of America, above n 72, at [25]-[28] [US-AUT-010-0574].
249 New Zealand – United States Treaty 1970 [US-AUT-002-0088].
250 CA judgment at [84] [SC.001.038].
251 See, for example, Williams “The Double Criminality Rule and Extradition: A Comparative Analysis”, above n
188, at 586 [US-SCA-013-2917].
252 Law Commission Report Extradition and Mutual Assistance in Criminal Matters (NZLC IP 37, 2014) at [5.12] [US-
CAA-072-2462] (emphasis added).
61
that falls within the definition of the Act or within the treaty. This
approach effectively allows treaties to expand on the offences that are extradition
offences under the New Zealand Act but not to limit them.
170. In its final report in 2016, the Law Commission reiterated the desirability of
the Extradition Act and treaty creating complementary paths to extradition. It
began the extradition section as follows: 253
[6.1] At the heart of any extradition is the offence that the person sought
has allegedly committed in the requesting country or the offence for
which they have already been convicted. But the existence of a foreign
offence alone is not sufficient. There are additional requirements. For
instance, for an incoming extradition request, the offence:
(a) must be sufficiently serious (the seriousness threshold) and there

must be a similar or comparable offence in New Zealand (dual
criminality); or
(b) the offence must be listed as an extradition offence in a treaty.
[6.2] Our draft Bill maintains these basic requirements but seeks to
express them more clearly
[6.7] … the dual criminality provisions in our Bill largely replicate the
current Act. It is, however, more apparent on the face of the Bill that the dual
criminality requirement does not apply if an offence is recognised as an extradition
offence under a treaty. This may deal with some circumstances where New
Zealand is yet to implement international obligations through creating
New Zealand offences.
171. The Court’s new approach will move New Zealand’s law in the opposite
direction to that recommended by the Law Commission. Extradition pursuant
to the Treaty will also be more difficult than it is in the case of a non-treaty
country, or where the United States seeks extradition for a non-treaty offence
under s 60. 254 In non-treaty cases demonstrating double criminality will be
enough. It is submitted, given the Treaty was designed to make extradition
easier rather than harder, that this cannot be correct.
172. In departing from Cullinane the Court concluded that double criminality has
always been part of New Zealand’s extradition framework, and that the
drafters of the present Act set out to continue this longstanding legislative
253 Law Commission Report Extradition and Mutual Assistance in Criminal Matters, above n 253, at [6.1]-[6.7][US-CAA-
072-2468] (emphasis added).
62
policy. To examine this proposition, it is necessary to look first at the

predecessor to the 1999 Act, the Extradition Act 1965. 255
The 1965 Act

173. The 1965 Act, like the 1999 Act, was designed to ensure New Zealand’s law
gave effect to any treaties it might enter. Section 3(4) provided that, subject to
the mandatory restrictions on surrender in s 5, the Act was to be read “subject
to the terms of the treaty and shall be so construed as to give effect to the
treaty.” 256
174. Section 3(4) of the 1965 Act, like s 11 of the 1999 Act, 257 was the mechanism
by which New Zealand gave effect to La Forest J’s description of the
relationship between treaty and statute. 258 Sections 3(4) and 11 confirm both
that New Zealand’s “international obligations … are to be found in the treaty”,
and that “the purpose of the Act is to ensure that the law of the land conforms
to the treaty”. 259 Both New Zealand statutes defined extradition offences, but
in neither case did Parliament include the statutory definition among the
provisions immune from being overridden by treaty. 260
175. The 1965 Act’s definition of “extradition offence” differed from the 1999
definition. The First Schedule set out a list of offences for which extradition
could be available, but the offences only became extradition offences if they
were also described in the relevant treaty. In most cases, the Schedule was not
an ambulatory instrument which added and omitted offences as the criminal
law evolved. 261 Rather, a treaty offence could cease to be an offence in New
Zealand, but would continue as an extradition offence as long as it remained
both in the Schedule and in a treaty.
255 Extradition Act 1965 [MO-AUT.193].

256 Extradition Act 1965, s 3(4) [MO-AUT.193].
258 United States of America v McVey, above n 130, at [39] [US-AUT-016-0804].
259 At [10] [US-AUT-016-0795].
260 Though the First Schedule to the 1965 Act, which set out a list of potential extradition offences, ensured that
treaty offences would only be selected from among the list the Act provided [MO-AUT.193].
261 The Schedule was ambulatory in some cases; for example, the reference to the Dangerous Drugs Act 1927, and
later the Misuse of Drugs Act 1975, meant that illegal drugs would come and go from the Schedule as the law
changed. The Treaty was ambulatory in the same way (see art II.31) [US-AUT-002-0090]. The ambulatory
nature of the drug provisions accounted for the decision in Re Translateur [1982] 1 NZLR 700 (CA) [US-SCA-
008], on which the Court relied in the present case: CA judgment at [72] [SC.001.034].
63
176. The history of the First Schedule shows that Parliament was cautious not to
amend our domestic law in a way which might give rise to a conflict between
Act and treaty. While new offences were added over time, it was rare for a
repealed offence to be removed. Importantly, offences which had found their
way into extradition treaties were never removed from the Schedule, even where
the underlying offence provision had changed, or had even been repealed,
under New Zealand’s criminal law.
177. This is not to say the meanings of the generic terms in the Treaty are frozen in
time. As is discussed in more detail below, in interpreting the broad provisions
in art II the Court is charged with ascertaining the “ordinary meaning” of the
terms “for legal purposes.” 262 The ordinary meanings of some generic terms
have evolved over the years. For example, the law’s understanding of rape is
broader than was acknowledged in 1970 when, for example, in the absence of a
separation order a husband could not be convicted of raping his wife. 263
178. Others have narrowed. For example, it is now universally accepted that
“sodomy”, to the extent that term captured consensual conduct among adults,
should never have been a criminal offence in either country. 264 Both
jurisdictions now understand the generic term to cover only non-consensual
conduct, or conduct involving minors. Nonetheless, Parliament did not alter
the Schedule in a way which might have placed it in conflict with the Treaty.
“Sodomy” remained in the Schedule until the 1965 Act was repealed in 1999,
thirteen years after consensual sodomy ceased to be an offence in New
Zealand, even while other offences were added 265 and occasional offences
(which had not been incorporated into any treaty) were removed. 266
262 See Edwards v United States of America, above n 72, at [28] [US-AUT-010-0576].
263 Crimes Act 1961 (as enacted), s 128(3).
264 Consensual sodomy was decriminalised in New Zealand in 1986, and those convicted under the old law have
recently had their convictions quashed by statute. In Lawrence v Texas 539 US 558 (2003) [US-SCA-009] the
United States Supreme Court noted that historic sodomy laws had been broadly concerned to address non-
procreative sex more broadly, and had rarely been enforced except where one party was a minor or there was an
absence of consent. The Court held that earlier decisions upholding laws which criminalised consensual conduct
among adults were wrongly decided, and all American laws which purported to criminalise consenting conduct
among adults were invalid. In D’Cunha v United States of America HC New Plymouth M24/97, 24 June 1997 [US-
SCA-012], Giles J noted that the alleged offending (which involved boys under 16, and pre-dated the 1986
reforms) remained within the definition of “sodomy” for the purposes of both the Act and the Treaty, despite the
offence bearing that label having since been repealed in New Zealand. there can be little doubt the same result
would follow even today given the age of the victims.
265 See, for example, Crimes Act 1961, s 140A – indecency with boy aged between 12 and 16.
266 See, for example, Crimes Act 1961, s 146 – keeping a place of resort for homosexual acts, which was repealed in
1986 and did not feature in any treaty.
64
179. The way the Schedule evolved over the 34 years of the 1965 Act’s life ensured,
subject to the mandatory exclusions in s 5 (the provisions of which were
always reflected in treaties in any event) that treaties were able to operate, as
intended, as self-contained instruments which gained the force of law in New
Zealand by operation of the Extradition Act.
The 1999 Act

180. The 1999 Act created a new standard for non-treaty extraditions, but did not
seek to do so at the expense of existing regimes in existing treaties.
Descriptions of newly-created “bottom lines”, on which the Court of Appeal
relied, 267 must be read in this context. Section 105 went as far as to provide
that even the 1999 Act’s ultimate bottom line – the mandatory restrictions in s
7 – would not apply if inconsistent with an existing treaty. 268
181. The evolution of ss 4 and 11 as the Extradition Bill made its way through the
House in 1998 and 1999 confirms that Parliament intended the s 4 definition
of “extradition offence” would not affect an extradition request made pursuant
to a treaty. As introduced, cl 4 would have provided, in every case, that an
extradition offence was one punishable, in both New Zealand and the foreign
country, by imprisonment for not less than 12 months. Clause 16, which later
became s 11, would simply have provided that, subject to cl 7 and other
provisions, the Act “must be construed so as to give effect to [extradition
treaties].” 269
182. Both provisions were altered by the Select Committee to ensure existing
treaties would still be applied according to their terms. The words “subject to
an extradition treaty” were added to cl 4. In effect, the Bill was amended to
ensure the new definition of “extradition offence”, which provided for double
criminality, was expressly subject to any alternative definition in an applicable
treaty. Clause 16 was deleted altogether, replaced by a new cl 10A, which later
became s 11. The original clause was replaced by what Keith J described as the
“very strong direction” in s 11(1) which ensured, 270 subject to very limited
267 CA judgment at [79] [SC.001.036].

268 See [135]-[137] and following above; the older mandatory restrictions in ss 5 and 5A of the Extradition Act 1965
[MO-AUT.193], which provided the template for treaty restrictions, would apply instead.
269 Extradition Bill 1998 (146-1), cl 16 [MO-AUT.195].
270 Yuen Kwok-Fung v Hong Kong Special Administrative Region of the People's Republic of China, above n 201, at [15]-[16]
[US-AUT-013-0714].
65
exceptions, that treaty provisions would prevail in the event of inconsistency

with the Act. The Committee noted that the changes were to clarify that the
Act is generally to be construed to give effect to a treaty, and to “more
comprehensively [deal] with” the ways in which a treaty cannot override the
Act. 271 The clause which became s 105 was designed to preserve “the refusal
grounds to which existing treaty countries are currently subject.” 272
183. The interpretation on which the Court of Appeal settled may have been
arguable if cls 4 and 16 had been enacted in their original form, but the reading
adopted by the Court is the interpretation the Select Committee was seeking to
avoid when it strengthened and clarified those provisions.
Application of the Treaty if double criminality is required

184. If Keith J’s observations in Edwards are applied to the present case, it is
apparent that the Court of Appeal was wrong to declare the pathways created
by arts II.16 and II.19 unavailable. 273 Moreover, it is submitted this conclusion
follows – at least in the case of art II.16 – even if the Court was right to
conclude that double criminality is required pursuant to the Treaty.
185. The Court’s conclusion that double criminality was required under the Treaty
led it to hold that the two art II pathways on which the United States relied
had “fallen away”. 274 Most notably, “conspiracy to defraud” (the old s 257 of
the Crimes Act), which was reflected in art II.16, has now been replaced with a
number of more modern offence provisions. 275 Nonetheless, it is submitted
the Court was wrong to hold that the Treaty pathways had fallen away. The
repeal of the historic provisions does not affect the United States’ ability to
show double criminality provided the underlying conduct remains unlawful.
186. It is settled law, even in jurisdictions where double criminality is a feature of

the extradition regime that generic offence categories contained in provisions
like art II should not be interpreted in a technical fashion. Instead, the test is
whether the defendant’s essential conduct falls within the scope of a domestic
offence which broadly reflects the treaty provision. As noted above, in
271 Extradition Bill 1998 (146-2) (Foreign Affairs, Defence and Trade Committee) at iii [MO-AUT.196].
272 Extradition Bill 1998 (146-2) (Foreign Affairs, Defence and Trade Committee) at iii [MO-AUT.196].
273 New Zealand – United States Treaty 1970, arts II.16 and II.19 [US-AUT-002-0089].
274 CA judgment at note 253 [SC.001.075].
66
Edwards, Keith J observed that the Court’s task is to determine whether the
conduct falls within the ordinary meaning of the relevant clause in light of the
treaty’s purpose and object. 276
187. Applying the rule from Edwards to the present case, and assuming double
criminality is required, the issue is whether the appellants’ alleged conduct (a)
falls within one or more of the general offence descriptions in art II, and (b)
also corresponds with an offence under New Zealand law as at the date of the
alleged crime. It does not matter whether “conspiracy to defraud” still exists as
a discrete offence provided the conduct in question represents a fraudulent
conspiracy of a kind which is still unlawful in New Zealand.
188. Having concluded that the appellants’ conduct falls within ss 228, 248 and 249,
the Court was wrong to hold that it did not also satisfy the double criminality
requirement it implied into art II.16. As noted above, conspiring to engage in
a prolonged and lucrative fraud on rights holders remains as unlawful in New
Zealand today as they did when the Treaty was struck in 1970.
Application of the Treaty without a double criminality requirement

189. If this Court agrees that the Cullinane was correctly decided, the Treaty
pathways are clearer still. Importantly, a direct route to extradition is
established which renders irrelevant the appellants’ argument that the
enactment of the Copyright Act in 1994 somehow drew together and codified
all copyright-related offending in s 131.
190. Gilbert J examined this issue in detail. 277 In brief, applying the ordinary words
of cl 16 in light of their purpose – as Edwards says the Court must – it is clear
that a dishonest conspiracy to deprive copyright holders of royalties qualifies as
a species of conspiracy to defraud. Copyright is a property right as entitled to
the law’s protection as any other. Moreover, in the 1960s, 1970s and 1980s, in
New Zealand and elsewhere, the law regarded a conspiracy to defraud
copyright holders as squarely within the broadly-expressed prohibition on
275 The offence of receiving has been updated and is now found in s 246, while the generic concept of conspiracy to
defraud is now reflected in a range of current provisions, including ss 228, 240 and 249 [US-AUT-0238].
276 Edwards v United States of America, above n 72, at [28] [US-AUT-010-0575].
277 HC judgment at [77]-[133] [CA.1.0029].
67
“conspiracy to defraud” then in force. 278 There is no reason to suppose that

the framers of the 1970 Treaty regarded intellectual property as less deserving
of protection from fraudulent conspiracy than any other property rights.
191. In 1970 New Zealand undertook to extradite those who conspired to engage in
the kind of meticulously organised fraud reflected in the conduct of
Megaupload. That broad commitment, regardless of technical changes to the
way New Zealand’s domestic fraud provisions have been expressed in the
intervening years, endures as long as the Treaty remains in force.
Count 3: Conspiring to Commit Money Laundering

192. The same comment applies to art II.19, which the United States relies on with
respect to Count 3. Count 3 279 is described as a conspiracy to commit money
laundering, but it alleges conduct that would not amount to money laundering
in New Zealand. Rather, it alleges the appellants dealt with property knowing
it to be dishonestly obtained. The High Court held that Count 3 fell
comfortably within art II.19, 280 but the Court of Appeal held that pathway was
unavailable when it declined to follow Cullinane.
193. Instead, the Court of Appeal held the allegations would be captured by s 246
of the Crimes Act, 281 which covers receiving stolen (or otherwise unlawfully
obtained) property. Acts captured by s 246 include possession, control, or
steps to conceal or dispose of the unlawfully-obtained property. The
appellants challenge this conclusion, arguing it is necessary for the United
States to allege both a predicate offence committed by someone else, and that
the appellants received the property from that person.
194. As discussed already, the United States characterises Megaupload as a

fraudulent enterprise designed to divert revenues away from the holders of
intellectual property rights and into the coffers of the company. Count 2
effectively alleges this. Megaupload’s business model relied on the unlimited
availability, to users, of copyright-protected works. Its subscriptions and
278 See, for example, Adams (ed) Adams on Criminal Law, above n 100, at 409 [US-AUT-208-5553]; Scott v
Metropolitan Police Commissioner, above n 30 [US-AUT-125]; Rank Film Distributors Ltd v Video Information Centre,
above n 91 [KD-AUT.177]; Busby v Thorn EMI Video Programmes Ltd, above n 82 [US-AUT-214].
279 See HC judgment at [202] [CA.1.0068].
280 Receiving and transporting any money, valuable securities or other property knowing the same to have been
unlawfully obtained.
281 Crimes Act 1961, s 246 [MO-AUT.003].
68
advertising revenues were derived from the popularity it enjoyed because

protected works were so freely available. For the reasons discussed above, it is
alleged that the conspirators were acting in a deliberately deceitful manner, and
knew that Megaupload’s revenues had been unlawfully obtained.
195. Count 3 alleges an agreement, involving Megaupload and its seven officers, to
deal with the funds obtained by Megaupload, which they knew were the
proceeds of criminal copyright infringement and wire fraud. The general
allegations describe the receipt of funds into Megaupload’s accounts, primarily
its Paypal account, and their disbursement in various ways, for example
payment to the appellants, payment of operating costs, and the payment of
rewards to users.
196. At its most basic, the conspiracy involved (Count 2) designing a corporate
operation which would defraud rights holders and (Count 3) the receipt and
dealing with unlawfully-obtained funds, either in the course of business or as
profits. The two counts describe different aspects of the same overall
conspiracy.
197. Article II.19 captures those who receive and deal with unlawfully obtained
funds. It is, on its face, a good fit for the conduct alleged in Count 3. Gilbert J
noted that art II.19’s focus is on the receipt and transportation (which in
contemporary parlance includes the transfer) of money, and that its meaning
accords with the allegations in the indictment. 282 In reaching his conclusion, he
adopted the approach described by Keith J in Edwards, and did not tie his
reading of art II.19 to the detail of the offence of “receiving” in New Zealand
law, which requires the funds to have been unlawfully obtained by a third
party.
198. It is notable that this aspect of the case is similar to Factor itself. 283 Mr Factor
was charged in the United Kingdom with “receiving money knowing it to have
been unlawfully obtained”, an offence not reflected in the domestic law of
Illinois. Despite his own involvement in the underlying fraud he was
282 HC judgment at [211] [CA.1.0071].

69
nonetheless found eligible for extradition based on a treaty clause similar to art
II.19. 284
199. Although it may be unnecessary to identify a further pathway, the allegations in

Count 3 also fall within the broad scope of art II.16. The steps the appellants
took to deal with the money, either by spending it in the course of
Megaupload’s business (for example by meeting the company’s operating costs
or paying rewards), or by paying the money to themselves, represent distinct
aspects of the overall conspiracy. For example, moving money to promote the
unlawful activity of the business (Counts 3(a) and (b)) helped sustain the
conspiracy to defraud rights holders. And personal profit-taking is merely
another form of “obtaining money by … conspiracy to defraud”. It follows
that art II.16 would also comfortably accommodate the allegations in Count 3.
200. In the courts below, the United States relied primarily on art II.19 rather than s
101B when seeking to show eligibility on Count 3. The Court of Appeal was
right to note that its decision that art II.19 was unavailable as a standalone
pathway complicated the Count 3 analysis. The Court resolved that difficulty
by holding that the crime of receiving, in s 246, would apply via s 101B, and
accordingly that both s 4 and the Treaty were satisfied.
201. The appellants submit, with some justification, that Count 3 is not a
comfortable fit with s 246. In New Zealand law, receiving requires the
unlawfully-obtained property to have been supplied to the receiver by someone
other than the receiver him or herself (though joint control is recognised in s
246(3)).
202. Here, the appellants were responsible for unlawfully generating the funds
through the Count 2 conspiracy. Despite the significant personal wealth they
derived as a result, it may be difficult to characterise the receipt of funds from
the company as the appellants’ obtaining the property from another person for
the purposes of s 246.
284 Embezzlement; larceny; receiving any money, valuable security, or property knowing the same to have been
embezzled, stolen or fraudulent obtained. The Seventh Circuit Court of Appeals (Laubenheimer v Factor 61 F 2d
626 (7th Cir 1932) at 627) summarised Mr Factor’s alleged offending as follows:
Whatever may be disclosed when the cause comes on for trial, it can scarcely be gainsaid that the
evidence before the Commissioner tended to indicate the formation in England and the execution
there of an ambitious scheme, of which Factor, under various aliases, was the central figure, and
whereby vast sums of money were fraudulently extracted from the British public, and much of it
knowingly received by Factor, who came with it to Illinois.
70
203. For the reasons discussed above, a better approach to Count 3 may be to
consider the steps the appellants took to deal with the funds generated by
Megaupload as a different part of the wider conspiracy to defraud. 285 It was an
important part of Megaupload’s model, for example, that money was paid to
repeat infringers. And Megaupload, like any company, had to spend money in
order to run. A person whose job was to spend Megaupload’s money in the
course of business would clearly be a party to any Copyright Act and Crimes
Act charges the evidence otherwise established. Similarly, the ultimate object
of the conspiracy was that the appellants would personally obtain the proceeds
of the offending.
204. It is accepted, therefore, that if double criminality is required, s 246 in

combination with art II.19 may not provide a workable pathway to extradition
on Count 3. On the other hand, the allegations in Count 3 describe additional
steps taken in furtherance of the existing Crimes Act and Copyright Act
pathways. It is submitted that in combination with art II.16, these provisions
render the appellants eligible on Count 3 even if the Court confirms the
decision to overrule Cullinane.
PART THREE: JUDICIAL REVIEW PROCEEDINGS: AN ABUSE OF

PROCESS
The “nullity” issue

205. In this Court, the appellants submit that the entire District Court judgment is a
nullity, and does not qualify as a “determination” of any kind for the purposes
of Part 8 of the Extradition Act. 286 The appellants base this submission on the
fact the Judge misunderstood the s 24(2)(c) component of the eligibility test. 287
206. The District Court Judge wrongly held that the requirements of paragraph (c)
would be satisfied if he was satisfied that the appellants’ conduct constituted an
285 The emphasis on moving the funds in the United States charges is resolved by reference to the clause at the foot
of art II. The art II.16 offence is complete without further movement of the funds. Although transporting
completes the federal offence, the clause is an instruction to disregard that in the Treaty analysis. The element of
“transportation” in the United States offence can be disregarded for extradition purposes by virtue of the
concluding words in art II; see, for example, La Forest J in United States of America v McVey, above n 130, at [13]
[US-AUT-016-0796]:
The provision was not adopted to complicate the law, but to simplify it. In the United States, the
individuals states, of course, have jurisdiction over criminal law, and federal offences must be framed
so as to come within federal legislative power. Article 2(3) permits surrender for an offence listed in
the treaty thought it contains components to conform to United States constitutional requirements
that do not, of course, appear in comparable Canadian offences.
286 Extradition Act 1999, Part 8 [US-AUT-001-0054].
71
extradition offence in the United States, rather than in relation to the United
States. The District Court held that component of the test was satisfied
because the record of the case and its supplements certified that the alleged
offences were indeed extradition offences in the requesting state. He went on
to consider whether the evidence established a prima facie case on each count.
207. Gilbert J noted the Judge’s error, and considered the s 24(2)(c) question afresh
in the High Court. He held, with respect to each count, that the appellants’
alleged conduct did indeed represent an extradition offence in relation to the
United States. As a result, Gilbert J held that the District Court’s error had not
caused any substantial wrong or miscarriage of justice, and that the eligibility
declaration should be upheld. The correctness of Gilbert J’s substantive
conclusion about s 24(2)(c) is the principal question on which this Court
granted leave.
208. The appellants also seek to argue that even if they are wrong and the offences
in question are extradition offences, the District Court’s error was so
fundamental that it should be regarded as fatal. They submit that if an
“argument has not been understood, it has not been heard”, and accordingly
that the District Court judgment represented a failure of natural justice which
rendered it a nullity. 288 This is a sweeping and, with respect, novel submission.
Judicial errors arise for all sorts of reasons including, occasionally, when judges
misunderstand counsel’s submissions. The appellants cite no authority for
their proposition that errors arising from a judge misunderstanding a
submission should be in a special category which nullifies the entire
determination. The implications of such a conclusion for the administration of
justice would be considerable.
209. In any event, both the High Court and the Court of Appeal properly treated
the District Court’s mistake as an error to be considered in the same way as
any other. The Court of Appeal noted that s 73(3) permits the High Court to
consider whether an error led to a substantial wrong or miscarriage of
justice, 289 that the High Court is plainly entitled to have regard to the
288 Synopsis of submissions for Messrs Ortmann and van der Kolk at E4.6.
289 Extradition Act 1999, s 73(3) [US-AUT-001-0057].
72
substantive merits of the case, and that its power are wide enough to remedy
any deficiency in the lower court process. 290
210. To the extent it is addressed at all, the review proceedings characterise the
District Court’s mistake about the scope of s 24(2)(c) as an error of law rather
than a fundamental flaw invalidating the whole proceeding. 291 The “nullity
resulting from fundamental error” argument, which gives rise to a discrete
question of law, has not been the subject either of a grant of leave or special
leave. It is therefore submitted it is outside the scope of this Court’s grant of
leave.
Judicial review and the Extradition Act

211. There is broad agreement between the parties about the nature of the case
stated appeal procedure. The drafters of the 1999 Act did not create a right of
general appeal. Instead, Parliament selected a deliberately circumscribed
procedure as the mechanism by which errors of law in an eligibility
determination could be challenged. That said, in this case the Part 8 appeals
delivered robust and thorough scrutiny of all the appellants’ (numerous)
complaints. All were heard and resolved on their merits, and the courts’
consideration of the case was in no way impaired by the form the proceedings
took.
212. While the case stated procedure is not as broad in its scope as a general right of
appeal, the courts are increasingly expansive and accommodating in the kinds
of questions that can be considered. This case provides a good example of the
way case stated appeals have evolved to address almost any question which can
be closely linked with the relevant determination. Case stated appeals routinely
deal with purely legal questions, procedural issues, questions of whether factual
findings were available on the evidence, and mixed questions of law and fact.
As is discussed more fully below, prior to the High Court appeal Asher J
rejected the suggestion that any of the appellants’ challenges – including their
various complaints about the District Court’s refusal to stay the eligibility
hearing – were incapable of resolution within the statutory appeal framework.
290 CA judgment at [55] [SC.001.028].

291 See Mr Dotcom’s First Amended Statement of Claim for Judicial Review and Stay of Extradition Proceedings, 4
March 2016, at 146 [A-1464]. It is not separately referred to in the statement of claim filed on behalf of the other
appellants.
73
No appeal right in the 1965 Act

213. The 1965 Act made no provision for either party to appeal against a
determination that a person sought was (or was not) eligible for surrender,
though it expressly contemplated that a person who had been declared eligible
could seek a writ of habeas corpus. 292 Like the committal process on which it
was based, the eligibility procedure was designed to be simple and
straightforward, in which the eligibility court had only a limited inquiry to
make.
Right of appeal introduced in 1999

214. In 1999, at the Select Committee stage, the new Extradition Bill introduced a
right of appeal against eligibility determinations for the first time. This right
supplemented the longstanding right to seek habeas corpus. The new appeal
right – which responded to submitters’ concerns about the lack of appellate
oversight in both the existing law and the Bill as introduced – was nonetheless
carefully calibrated. The Committee noted the appeal right was modelled on
the case stated appeal procedure for summary convictions. 293 The Committee
considered it appropriate to move from a regime which afforded 294 no appellate
oversight to a new appeal right by which errors of law could be challenged by
way of case stated, if necessary in conjunction with the ongoing right to seek
habeas corpus.
215. The 1999 Act took care to set out, but also to limit, the scope of an appellant’s
challenge. For example, s 72(1) mirrors the equivalent provision in the
Summary Proceedings Act. 295 Section 72(2)(a), on the other hand, which
forbids the High Court to receive new evidence on appeal, had no Summary
Proceedings Act equivalent. 296
216. The drafting of s 68 provides an indication of its intended scope. Section 68(1)
provides that “[t]his section applies if … either party considers the [eligibility]
determination wrong in law”. 297 Subsection (2) provides that “[i]f this section
292 See, for example, Extradition Act 1965, ss 10(3)(a) and 11(1) [MO-AUT.193].
293 Extradition Bill 1998 (146-2) (Foreign Affairs, Defence and Trade Committee) at v [MO-AUT.196].
294 Especially relevant in the case of the requesting country, for which the right to seek habeas corpus was no help.
295 Summary Proceedings Act 1957, s 112 [MO-AUT.014].
296 Extradition Act 1999, s 72(2)(a) [US-AUT-001-0056].
297 Extradition Act 1999, s 68(1) [US-AUT-001-0054].
74
applies [i.e if either party considers the decision wrong in law], the party may
appeal …”
217. The way s 68 was framed, especially when considered against the backdrop of a
decision to introduce a limited appeal right in circumstances where previously
there had been none, indicates the procedure referred to in subs (2) was the
only mechanism the Act contemplated, at least for errors of law. Subsection
(1) asked a single question – does either party think the decision erroneous in
law? If the answer to that question is yes, subs (2) says what that party may do.
That framing, which did not reflect the Summary Proceedings Act provision
on which s 68 was based, was both unusual and deliberate.
218. The conclusion that judicial review is, at best, a residual remedy, is reinforced
by the advice which must be given when every eligibility determination is
announced. Pursuant to s 26(1)(d), 298 an eligible person must be informed (i)
that he or she will not be surrendered until 15 days after the warrant of
detention is issued; (ii) that during that time he or she has the right to apply for
habeas corpus and; (iii) that he or she has a right of appeal under Part 8. 299
Eligible persons are not advised that they may also select judicial review as
their mode of challenge. Section 72(2)(b) provides that an appeal and habeas
corpus application may be heard together. 300 These provisions indicate that the
Act regards Part 8 appeals and habeas corpus applications as complementary,
and that together they comprise the options available to a person declared
eligible for surrender. 301
219. As discussed below, the United States does not suggest that judicial review is
never available in the eligibility context. Rather, and as both the High Court and
Court of Appeal held, if an aggrieved party’s complaints can be heard and
resolved on their merits as part of the case stated procedure, there is no room
for judicial review proceedings which cover the same ground.

300 Extradition Act 1999, s 72(2)(b) [US-AUT-001-0056].
301 The Act does expressly contemplate judicial review proceedings as well, but only following a determination by the
Minister to make a surrender order; see, for example, s 31(2)(b) [US-AUT-001-0027]. There is no right of appeal
against a determination to make a surrender order.
75
Part 8 and its limits

220. The appellants argue that s 72(2) (among other provisions) places them in an
unacceptably restrictive straitjacket, and that an alternative method of
challenge, in the form of judicial review, is therefore required. 302 The obvious
rejoinder is that the statutory limits on the scope of the appeal were deliberate,
and designed to ensure the senior courts were not swamped with wide-ranging
challenges, involving among other things the introduction of new evidence and
multiple tiers of further appeal unmoored from the leave requirements in the
Extradition Act.
221. The appellants’ submission is essentially that judicial review is required because
they wish to avoid the limits imposed by the Extradition Act. It invites the
Court to disregard both the statutory structure and the policy considerations
underpinning it. Their submission invites a rhetorical challenge: if Parliament
had contemplated that aggrieved litigants could plead their way around the
restrictions in Part 8 by characterising their challenge as a judicial review, why
did it impose those restrictions in the first place?
222. The appellants’ challenges, both to the merits of the eligibility determination
and to the way their various stay applications were resolved, received careful
and detailed consideration in the courts below. As a result, the only real
prejudice they face from the case stated procedure is that in the case of many
questions for which they were unable to secure either leave or special leave,
there is no right of further appeal to this Court.
223. It follows that the review proceedings seek to circumvent not only Part 8, but
also this Court’s ruling in Simpson v Kawerau District Council. 303 Simpson
concerned an attempt to appeal to this Court against a refusal of special leave
in the Court of Appeal. The appeal was governed by s 144 and s 144A of the
Summary Proceedings Act, 304 which apply to the present appeal via the (now
repealed) s 69(1)(p) of the Extradition Act. 305 This Court observed: 306
… Section 144A [of the Summary Proceedings Act] relevantly allows an

appeal against a decision of the Supreme Court on “an appeal” under s
302 Extradition Act 1999, s 72(2)[US-AUT-001-0056].

303 Simpson v Kawerau District Council, above n 10 [US-SCA-001].
304 Summary Proceedings Act 1957, ss 144 and 144A [MO-AUT.014].
305 Extradition Act 1999, s 69(1)(p) [US-AUT-001-0055].
306 Simpson v Kawerau District Court, above n 10, at [5] [US-SCA-001-2668].
76
144(1). A decision of the Court of Appeal refusing special leave to appeal

to it is not a decision on an appeal. It is simply a decision that no appeal
shall be permitted. There is consequently no authorisation given by
s144A(1)(c) for this Court to hear an appeal against the Court of
Appeal’s refusal of leave.
[6] Mr Simpson placed some reliance on s144B but that section confers
powers only when an appeal is on foot, i.e. when leave has been given. It
has no bearing on the jurisdiction to grant leave.
[7] It is to be noted that the absence of any jurisdiction to grant leave in

this case is consistent with the position in civil cases, where s7(b) of the
Supreme Court Act is even more explicit, and with the position of the
Court of Appeal formerly in relation to attempts to obtain leave to
appeal to the Privy Council against a refusal of leave to appeal from the
High Court: Collier v Elders Pastoral Ltd (1991) 3 PRNZ 478 and Shardy v
Circa Holdings Ltd CA250/98, 24 February 1999.
The judicial review proceedings

224. The statements of claim are lengthy (135 and 189 pages respectively) and
encompass every aspect of the appellants’ challenge to the eligibility decision.
The principal remedy the appellants seek is not the correction of one or more
errors which have deprived them of a fair hearing. While they seek a rehearing
as an absolute last resort, the judicial reviews seek to have the extraditions
quashed entirely.
225. The High Court considered how to deal with the fact there were two sets of
proceedings before it in which the appellants were seeking to achieve the same
outcome on the same grounds. In rejecting the United States’ application for
questions which did not go directly to the merits of the eligibility determination
– most notably the stay applications – to be removed from the case stated,
Asher J observed: 307
… it would be surprising if Parliament, when it provided for an appeal

procedure, intended matters of process to be considered by a different
procedure (judicial review) than the substantive determinations relating
directly to extradition. It is unlikely that Parliament would have intended
there to be different pathways for challenges to the procedure by which a
determination had been reached, and the determination itself. It is the
tendency in conducting ordinary appeals, that all decisions leading to the
determination including those collateral to the substantive decision are
heard in one appeal.
The appeal procedure set out in s 68 of the Act is the primary appeal
procedure, and if matters can be properly included in those proceedings,
307 Ortmann v United States of America [2016] NZHC 522 at [17] [US-CAA-009].
77
they should be. The complications in relation to the other proceedings

will have to be worked through in due course.
226. In his eligibility judgment Gilbert J noted: 308
[8] There is significant overlap between the case stated appeals brought
by the appellants and their applications for judicial review. Every error of
law relied on for the purposes of the judicial review proceeding is
replicated in the case stated appeals. This is in accordance with a
judgment given by Asher J in this proceeding on 24 March 2016
directing that all aspects of the District Court judgment, including the
procedural rulings that led to it, should be dealt with in the context of
the appeals, rather than separately by way of judicial review. The only
issue raised in the applications for judicial review that is not also dealt
with in the case stated appeals is the allegation of bias and pre-
determination. I will therefore deal with that issue separately, at the end.
227. The bias and predetermination ground was dismissed and is no longer pursued.
In light of the otherwise-complete overlap between the two sets of
proceedings, Gilbert J’s decision on the case stated appeals also disposed of
each of the questions the appellants sought to raise by way of judicial review. 309
228. The Court of Appeal concluded that the judicial review applications
represented an abuse of process. It observed: 310
[311] In our view, if a ground of judicial review can be raised and

adequately determined through the case-stated appeal process under s 68
— as, in our assessment, it has been in this case — judicial review is not
available. Parliament cannot have intended it would be possible to bring
duplicate sets of proceedings covering identical grounds. In effect, what
the appellants are attempting to do by bringing judicial proceedings
replicating the same grounds is to circumvent the carefully circumscribed
appeal rights under the Extradition Act. That in our view is an abuse of
process and should not be permitted.
229. Neither the High Court nor the Court of Appeal purported to rule out review
proceedings in the context of an eligibility decision.
230. It is true that neither court examined the issues twice, first under the case
stated procedure and again on review, as the appellants apparently submit
308 HC judgment at [8] [CA.1.0008].

309 In this Court, Mr Dotcom submits that the Court of Appeal mischaracterised the basis on which Gilbert J
declined leave on the stay applications, observing that His Honour, in his leave decision, had observed (at [47]
and [48]) that those applications, if they were to be pursued further, were more properly dealt with in the course
of the review proceedings. See Ortmann v United States of America [2017] NZHC 1809 [CA.1.0383].
Those paragraphs do not alter the abuse of process analysis. Mr Dotcom’s submission overlooks Gilbert J’s
principal observation (in his leave judgment at [46]) that leave on the stay applications would be refused because
they had no realistic prospect of succeeding on the facts. It also overlooks his observation (reproduced in [226]
above), that he had resolved all questions before him, with the exception of the bias and predetermination claim,
pursuant to the statutory appeal procedure. The Court of Appeal dealt with the stay applications as part of the
statutory appeal process, and held that the concurrent judicial review was an abuse of process: CA judgment at
[269] and following [SC.001.104] and [311] [SC.001.115].
78
should have happened. But they declined to do so only after satisfying

themselves that all the issues the review proceedings raised had been resolved,
on their merits, as part of the statutory appeal.
The appeal
231. While the appellants assert that they did not receive “full consideration of
procedural unfairness, coercion, misconduct and invalidating error”, 311 they
have not pointed to any argument the Court of Appeal declined to examine.
Instead they submit that after dismissing the case stated appeals, the courts
should have examined the same questions through a judicial review “lens”. It
appears they submit that if they had done so, the courts might have answered
some of the questions differently.
232. In this Court the appellants seek to rehearse some of their longstanding
complaints – that, for example, their fraudulently-acquired funds were frozen
and later forfeited, and United States law does not permit such funds to be
spent on lawyers and experts in that jurisdiction. 312 But both the High Court
and the Court of Appeal carefully considered whether this restriction caused
them any material or illegitimate prejudice. Gilbert J’s consideration of the
District Court’s rejection of the so-called “funding stay” application was
detailed and thorough, covering 32 pages of the unreported judgment. 313 It is
unfair to characterise Gilbert J’s analysis as “brief consideration in the context
of the case stated appeals”. 314 He concluded: 315
[521] In summary, I agree with the District Court that there was no
misconduct by or on behalf of the United States in obtaining and seeking
to enforce forfeiture orders that were properly obtained in its
jurisdiction. There was no strategy “to choke off the appellants’ defence
and starve them into submission”. I also agree with the Judge’s
conclusion that the constraint on paying United States experts, which the
appellants only identified as an issue at the end of April 2015, did not
prevent the appellants from having a fair extradition hearing.
233. The Court of Appeal also gave careful consideration to the funding stay
complaint. It approved Gilbert J’s approach, and held that no prejudice to the
310 CA judgment at [311] [SC.001.115].

311 Synopsis of submissions for Messrs Ortmann and van der Kolk at F7.1.
312 The Criminal Proceeds (Recovery) Act 2009 contains a very similar provision: see s 28(2).
313 HC judgment at [429]-[521] [CA.1.0142].
315 HC judgment at [521] [CA.1.0173].
79
appellants’ defence of the District Court proceedings had arisen. 316 It is

impossible to imagine those conclusions, and the manner in which they were
expressed, being any different if viewed through what the appellants describe
as “the broader lens of judicial review”. 317 Both Courts did exactly what a
Court on review would do – they examined whether there had been any legal
or procedural irregularity which might have had a material impacted upon the
District Court’s decision, and held there had not.
234. Similarly, in the context of the so-called “misconduct stay” applications (which
covered two separate but related challenges, later described as the “August”
and “September” applications), Gilbert J detailed the complaints the appellants
made in their judicial review proceedings, 318 and dealt with them on their
merits. Both the High Court and the Court of Appeal 319 held that the
appellants’ various complaints, about matters such as the way the search of Mr
Dotcom’s home was conducted and the unlawful involvement, in the lead up
to the arrest operation, of the Government Communications Security Bureau,
were irrelevant to any question associated with the fairness of the eligibility
hearing or the District Court’s limited role in determining eligibility, and fell
“well short” of the “particularly high” 320 threshold for a stay of proceedings.
235. The appellants submit that some questions might have been answered
differently if the courts below had utilised the “different methodologies and
outcomes” of judicial review, and considered the case “in accordance with the
constitutional perspective … available when the supervisory jurisdiction is fully
engaged”. 321 It is unclear what this submission means or how a different
procedural footing might have made a difference. The appellants’ real
complaint is that they have failed to secure either leave or special leave, and as
a result have reached the end of the line on all issues bar the two for which
leave was given.
316 CA judgment at [283] [SC.001.107].

318 HC judgment at [534] [CA1.0179].
319 CA judgment at [299]-[303] [SC.001.112].
320 At [299] [SC.001.112].
321 Synopsis of submissions for Messrs Ortmann and van der Kolk at F6.2 and F7.12.
80
The law
236. The present case is distinguishable from H v Refugee and Protection Officer, 322 on
which the appellants rely. There, the statutory process had failed; the appellant
had not been afforded the two de novo opportunities to press his case for
refugee status contemplated by the Immigration Act 2009. As a result a
judicial review was the only way to get the proceeding back on track.
237. In Tannadyce Investments Ltd v Commissioner of Inland Revenue, nothing had gone
wrong with the statutory process (other than that the appellant had “preferred
not to challenge the assessment [by way of appeal] within the time allowed”). 323
This Court held that, in order for review proceedings to be permissible in the
face of a statutory appeal right which was also capable of accommodating his
challenge, it was necessary for the appellant to show it was not practically
possible to follow the statutory procedure. 324 The majority observed that
“cases of that kind are likely to be extremely rare.” 325
238. The appellants seek to distinguish Tannadyce from the present case on the basis
that the Tax Administration Act 1994, in issue in Tannadyce, included a
“privative cause” to the effect that the relevant statutory appeal process was
the only mechanism by which an impugned assessment could be challenged.
They submit that by applying Tannadyce in the present case, the Court of
Appeal has effectively read a privative clause into the Extradition Act too.
239. In fact, Tannadyce is only one of many cases which have held that recourse to
judicial review is inappropriate when Parliament takes the trouble to set out a
statutory appeals framework, especially in the context of criminal proceedings.
In Tannadyce itself McGrath J and Elias CJ, who were in the minority on some
aspects of the decision, took the view that the privative clause did not apply. 326
They nonetheless held that the judicial review proceedings were rightly struck
out, observing that recourse to judicial review, in the face of a statutory
process, “is an approach the courts have discouraged and ultimately is fatal if
322 H v Refugee Protection Officer [2019] NZSC 13 [MO-AUT.260].

323 Tannadyce Investments Ltd v Commissioner of Inland Revenue [2011] NZSC 158; [2012] 2 NZLR 153 at [45] [US-AUT-
133-3876].
324 At [58] [US-AUT-133-3876].
325 At [61] [US-AUT-133-3877].
326 At [40] [US-AUT-133-3872].
81
the Court considers that, in the circumstances considered objectively, the

statutory challenge is to be preferred.” 327
240. The Criminal Procedure Act 2011 now contains over 140 sections setting out
the appeal rights available in the criminal jurisdiction (including Extradition
Act appeals). Most criminal proceedings originate in the District Court. If the
appellants’ analysis is correct it will be open to any criminal defendant, who
prefers the less restrictive procedure available on review, to ignore his or her
right of appeal and proceed by way of judicial review instead. It will even be
possible for defendants to pursue both forms of challenge simultaneously.
241. In C v Wellington District Court, 328 a case where the appellant sought judicial
review of a decision to commit him for trial, the Court of Appeal observed: 329
As a matter of general principle truly exceptional circumstances will be

required for the Court to entertain an application for judicial review of a
decision to commit for trial under s 168 of the Summary Proceedings
Act 1957 where the sole ground is a challenge to the sufficiency of the
evidence. That principle should apply even if an identifiable question of
law (other than sufficiency of evidence) is said to arise. The Crimes Act
1961 provides a person committed for trial with an alternative, adequate,
and convenient procedure to obtain the same remedy. There is a
comprehensive statutory procedure included in Part XII of the Crimes
Act 1961 governing indictable trials which is directed to their just and
expeditious disposal, and in a situation such as the present there is no
cause for the Court’s wider review process to be brought into play and
thereby to interfere with that process.
Although made in the context of a taxing statute, the dictum of Lord

Scarman in Re Preston [1985] AC 835 at p 852 is apposite:
“My fourth proposition is that a remedy by way of judicial

review is not to be made available where an alternative remedy
exists. This is a proposition of great importance. Judicial
review is a collateral challenge: it is not an appeal. Where
Parliament has provided by statute appeal procedures, as in the
taxing statutes, it will only be very rarely that the courts will
allow the collateral process of judicial review to be used to
attack an appealable decision.”
242. Similarly, as the Court of Appeal observed in Gill v Attorney-General, “judicial

review will rarely be appropriate where there is a readily available alternative
remedy”. 330
327. Tannadyce Investments Ltd v Commissioner of Inland Revenue above n 323, at [45] [US-AUT-133-3873].
328 C v Wellington District Court [1996] 2 NZLR 395 (CA) [MO-AUT.173].
329 At 400 [MO-AUT.173].
330 Gill v Attorney-General [2011] 1 NZLR 433 (CA) at [19] [US-CAA-051-1545].
82
243. The rule which emerged from C is that where a statutory remedy exists,
collateral proceedings for judicial review are appropriate only in exceptional
circumstances, such as, for example, where the decision-maker acts without
jurisdiction and where the statutory regime is unable to address the substance
of the complaint. In C, the Court summarised the cases where a collateral
challenge had been permitted, and noted they were cases where there was
“only a very limited alternative remedy, of arguable suitability, available to the
disaffected party.” 331
244. It is unheard of for both an appeal and a judicial review, covering the same
issues, to be advanced at the same time. By definition, if the issues can be
advanced pursuant to the statutory procedure, there is “no cause for
the…wider review process to be brought into play.” 332 An express privative
clause is not required. As noted above, it has long been settled law that review
proceedings are inappropriate when an effective appellate challenge is available.
245. The appellants do not seek to circumvent the statutory appeal regime because
they were unable to pursue their case. They did, and they were unsuccessful.
Moreover, the High Court and the Court of Appeal were satisfied the
appellants received a fair hearing, and that they were not prevented from
raising any matter with the District Court which might have been material to
its decision.
246. All issues to which Simpson applies (in other words, all issues except the two on
which Gilbert J gave leave) have already been the subject of a final statutory
appeal and resolved on their merits. 333 The remaining issues are properly
before this Court. That outcome demonstrates a successful appellate process,
operating as it should.
247. This case displays none of the exceptional circumstances which require parallel
recourse to judicial review. It is respectfully submitted the Court of Appeal
was right to characterise the appellants’ attempt to bypass the statutory
procedure as an abuse of process.
331 C v Wellington District Court, above n 328, at 400 [MO-AUT.173].

332 At 400 [MO-AUT.173].
333 Simpson v Kawerau District Council, above n 10 [US-SCA-001].
83
PART FOUR: WHY THE CONDUCT OF MEGAUPLOAD AND THE

APPELLANTS FALLS WITHIN S 131 COPYRIGHT ACT 1994
Introduction
248. This section addresses Mr Dotcom’s thesis that an ISP cannot be criminally
liable under s 131 of the Copyright Act. 334 He submits that the activities of
ISPs are wholly encompassed by the concept of “communication”, inserted in
2008. In his submission, the 2008 clarification of the acts restricted by
copyright, designed as a modest enhancement of the owner’s enforceable
rights, translates to a parliamentary instruction that ISPs are immune from
criminal liability for deliberate infringement. Mr Dotcom argues that even
deliberately infringing ISPs are, in effect, given a free pass to act in ways that
would otherwise be criminalised by s 131. Megaupload claimed to absorb 4%
of the entire traffic of the Internet. On the evidence presented in the ROC,
the lion’s share of its traffic went to files that infringed copyright, and this
happened because of steps the appellants had taken to attract and preserve
such content. Mr Dotcom’s argument implies that this conduct was
affirmatively sanctioned by New Zealand law, in the name of enhancing a
“knowledge” economy. 335
249. The terms of the Copyright Act and the discernible intentions of Parliament
tell firmly against this interpretation. The Court of Appeal concluded that s
131 did reach the activities of ISPs; rather than effecting a silent revolution by
placing them beyond the law’s reach, the amendments in 2008 confirmed they
lay within it. 336 Parliament did not intend to exempt from penalty the most
significant form of commercial-scale infringement.
250. The United States respectfully supports the Court’s reasoning. To simplify
matters, the focus here is upon:
250.1 The fundamental role of copying in the statutory scheme;

335 The ROC actually contains an example of a New Zealand software developer who was a victim of internet piracy.
He identified 10-20 URL links to infringing copies of his software on Megaupload and submitted takedown
notices. “JM stated that if the underlying files remained active on Megaupload.com, even if the individual URL
links were disabled, then the process was hopeless because JM could not afford legal representation to bring a
copyright-infringement lawsuit.” ROC First Supplement at [97] [B-0939]. As this example suggests, sanctioning
deliberate infringement by file hosting sites obviously does nothing to enhance the “knowledge economy”. One
concern underlying the 2008 amendments to the Copyright Act was to encourage the development of New
Zealand’s internet infrastructure, hence the protection, in s 92A, extended to mere connectivity providers. File
hosting sites were directly addressed in s 92B [US-AUT-006-0323].
336 CA judgment at [135]-[136], [163]-[169], [186]-[189] [SC.001.061].
84
250.2 The offence of possession with a view to committing any act

infringing copyright, s 131(1)(c). 337
International obligations
251. New Zealand is a party to TRIPS: Agreement on Trade-Related Aspects of
Intellectual Property Rights 1994 (TRIPS) 338 and the Copyright Act was, in
part, enacted specifically to meet its obligations under that agreement. 339
Article 61 stipulates that “[m]embers shall provide for criminal procedures and
penalties to be applied at least in cases of wilful… copyright piracy on a
commercial scale.” 340 By its interpretation, the Court of Appeal has ensured
consistency with TRIPS. Mr Dotcom’s interpretation, on the other hand,
leaves a significant gap in coverage and would place New Zealand in breach of
its TRIPS obligations.
252. The argument that the WIPO Copyright Treaty 1996 (WCT) supports the
“free pass” thesis is examined further below. 341
“Object” in the Court of Appeal analysis

253. Mr Dotcom submits that the Court’s attention to this concept was an
unhelpful distraction from what he portrays as the more important issue of
what the “communication right” was intended to achieve. He notes that the
appellants accept that intangible copies are objects. 342 But there were two
important reasons for explaining why the Act treats digital files as objects:
253.1 In the High Court’s analysis, it was important that s 131 was
concerned only with tangible objects. This gave support that to its
view the activities of ISPs took place in a special realm, bounded by
the statutory concept of communicating an infringing copy. More
337 Copyright Act 1994, s 131(1)(c) [US-AUT-006-0370].

338 Marrakesh Agreement Establishing the World Trade Organization 1867 UNTS 3 (opened for signature 15 April
1994, entered into force 1 January 1995), annex 1C (Agreement on Trade-Related Aspects of Intellectual Property
Rights) [TRIPS Agreement] [US-SCA-005].
339 CA judgment at [147] [SC.001.065]. TRIPS: Agreement on Trade-Related Aspects of Intellectual Property
Rights 1994, above n 338 [US-SCA-005].
340 TRIPS: Agreement on Trade-Related Aspects of Intellectual Property Rights 1994, above n 338, art 61 [US-SCA-
005-2726].
341 World Intellectual Property Organization [WIPO], Copyright Treaty (adopted 20 December 1996) WIPO Doc.
CRNRIDC/94 [KD-AUT.230]. See discussion in [311]-[324] below.
342 Submissions for Mr Dotcom at 3.5, 4.3.
85
than one passage made this explicit. 343 Because digital files were not
objects, the High Court thought that s 131 could not apply to ISPs.
253.2 Confirming that digital files were objects meant that the language of
the 1994, as enacted, was already broad enough to capture of the
activities of an ISP. When the position of ISPs was specifically
addressed in 2008, the amendments were predicated on that basis.
Indeed, parliament took steps to ensure that there was no doubt that
the Act covered digital files. It did so through an amendment to the
key definition of “copying”.
254. By accepting that digital files are objects within the meaning of s 131, Mr
Dotcom significantly erodes the reasoning that led the High Court to accept
his argument about the “communication right”.
“Copying” and “object”

255. Although the breadth of “object” is apparently common ground, it is helpful to
consider how these terms work together in the Act. 344
256. Fundamentally, the statute deals with works protected by copyright and copies
of such works. Nothing in the Act is aimed at varying the consequences of
making an infringing copy depending on whether that copy is “tangible” or
not. Anything that can be a copy can also be an infringing copy. This is the
natural symmetry of the Act, which has as its purpose protecting qualifying
works from infringement.
257. The s 2 definition of copying therefore brings all forms of copying within the
scope of the statute. It was amended in 2008 to refer expressly to copies in
digital format, though the existing language was considered broad enough to
capture digital copies already, as the Explanatory Note shows. A digital copy is
deemed to have a material form.
258. Section 131 speaks of possessing or dealing with “objects” that are infringing
copies. This language (also found in s 36) 345 does not carve out a subset of
343 HC judgment at [176], [183], [191] [CA.1.0059].

344 Aside from the matters discussed here, there are other features of the statute indicating that “object” covers non-
tangible copies. In view of the appellants’ position, it is not necessary to consider these. Somewhat
inconsistently, Mr Dotcom relies to an extent on the tangible/intangible distinction. See Submissions for Mr
Dotcom at 4.35, 4.69, 4.81.
86
copies – i.e. so-called “tangible” copies – for the purpose of defining civil and
criminal infringement on a commercial scale. It harks back to the definition of
“infringing copy” in s 12(2): “an object is an infringing copy if it making
constitutes an infringement of the copyright of the work in question.” 346 The
focus here is the status of the copy, not the form in which it exists. An
“object” is simply the product of the act of copying. All copies, including
digital copies, have a material form by virtue of s 2. It is self-evident that they
must exist in a physical medium of some kind and this makes it sensible to
speak of digital or even transient copies as “objects”.
259. The essential work is done by the all-embracing definition of copying - not the
term “object”, which is not further defined. Any copy is an object. Whether
its creation amounts to infringement depends on whether one or more of the
protected rights is encroached upon.
260. As the Court of Appeal recognised, there is no magic in the use of the term
“object”. 347 In various places, the Copyright Act uses “object”, “material”,
“item” and “copy” as if they all have the same significance. 348 Further, the
original section dealing with copy-protection expressly applied to copies in
electronic form. It was designed to work with s 132, which implies a
prosecution under s 131. For these provisions to function together, s 131
must permit prosecutions for “objects” that are electronic copies. 349

347 CA judgment at [147]-[148] [SC.001.065].
348 For example, the term “material” is used in the provisions addressing ISP liability. Section 80 concerns the
limited right to make a back-up copy of a computer programme. Subsection (4) is confined to the purposes of
the section, but subs (4)(b) provides that “[a] reference to a copy of a computer program is a reference to any
object in which the programme is reproduced in a material form…”[US-AUT-006-0313] This is once again to
treat the copy as synonymous with an object. It would not matter whether the copy of the protected programme
existed as a single CD-ROM or as a file on a computer hard drive, intermingled with other material. The section
focuses on the copy in whatever material form it exists. Section 136 deals with pirated copies and refers to an
“item” that is a “work”. Read with the definition of “pirated copy” in s 135, the statute envisages a pirated copy,
that is an item, that is a work. The only sensible reading is that any pirated copy is an item, in the same way that
any copy is an object.
349 In its original form, s 226 addressed devices designed to circumvent copy-protection mechanisms and applied
“where copies of a copyright work are issued to the public… in an electronic form that is copy-protected. The
person issuing the copies in electronic form had the same rights against the person who deals with a
circumvention device as they have in relation to an infringement. In relation to the means of circumventing any
copy-protection, they had the same rights that s 132 confers in relation to an infringing copy. (The section does
not use the term “object,” which further indicates that it is synonymous with copy.) This relationship assumes a
prosecution under s 131, which is a trigger for s 132 to operate: s 132 applies when “proceedings are brought
against a person for an offence against section 131…” Electronic copies of copyright works must therefore fall
within the scope of s 131. The word “object” cannot exclude electronic copies, regardless of whether these are
thought to have a tangible or intangible form. There otherwise could not be a s 131 prosecution that would give
the owner of a work in electronic form the s 132 rights which s 226 conferred. Section 226 was replaced in 2008
and further provisions were added. These changes did not alter the relationship with ss 131 and 132. Put another
way, the original s 226 required that s 131 applied to electronic copies and nothing in the amendments changes
87
Copying, storing, and “online dissemination” of protected works

261. A storage provider does not “communicate” an infringing work without first
copying it. The High Court missed this essential step and went straight to the
act of communication.
262. As the Explanatory Note observed, “[c]opying is a central function of the

Internet and central to the services provided by Internet Service
Providers…” 350 This initial act is described in the ROC under the heading,
“Life Cycle of a File Uploaded to the Mega Sites”. 351 When a user selected a
file and clicked the upload button, certain functions were performed using
software the conspirators had written. The result was that the “file would be
reproduced onto one or more Mega-controlled servers…” 352 Under s 2,
“reproduced” means the creation of a copy, here a copy stored on the server.
An especially popular file might be further copied to enable faster distribution
via the Cogent servers. 353
263. The point here is that the creation of a copy precedes any of the other restricted
acts that an ISP might perform. Megaupload could not enter the realm of
“online dissemination” of a work, or communicate a work, without first
possessing it as a copy stored on a server.
264. The stored file might then be accessed for downloading or viewing by any
person via URL links initially provided to the original uploader, or other users
who acquired and uploaded the same unique file. This activity would fall
within the 2008 definition of “communicate”, but was also caught by the
the meaning of s 131. The intention in 2008 was to broaden the rights of copyright owners in relation to
Technological Protection Measures (TPMs) – see Copyright (New Technologies and Performers’ Rights)
Amendment Bill 2006 (102-1) (explanatory note) at 5 [US-CAA-028-1113]. Section 226 now defines TPM, TPM
circumvention device and TPM work. All three can exist in electronic form, as the original section made explicit
in subs (1) and (3). Because these new definitions are not confined to “tangible things”, they continue to show
that an electronic copy of a TPM work is an “object” under s 131. They also show that “an object specifically
designed… for making copies of a particular copyright work” (s 131(2)(a)) may also be intangible. This is because
“a TPM circumvention device” – indispensable to the making of infringing copies of the work - may itself exist
in intangible form. (“TPM” is defined as “any process, treatment, mechanism, device, or system…” And “TPM
circumvention device “means a device or means”.) The continued dovetailing of s 131 with provisions clearly
applicable to intangible TPM works and devices necessarily means that a s 131(1) “object” is not confined to
tangible copies. (See s 226B)
350 Copyright (New Technologies and Performers’ Rights) Amendment Bill 2006 (explanatory note), above n 349, at
4 [US-CAA-028-1112].
351 ROC Second Supplement at [102] [B-0951].
352 See also ROC at 7–8 [B-0167]. If the Megaupload system detected that the file had exactly the same MD5 hash
as a file already stored, a further copy was not made and the user received a new link pointing to the existing file.
See ROC Fifth Supplement at [162(b)][B-1096].
353 ROC Second Supplement at [102] [B-0951] and ROC First Supplement at [72] [B-0921].
88
existing language – for example to distribute in the course of a business in ss

36(d) and 131(1)(d)(iii). 354 It is also another act of copying.
The offence of possessing an infringing copy with a view to committing any act
infringing copyright – s 131(1)(c)
265. The appellants conspired to commit this offence by agreeing to obtain
infringing copies with the intention of doing further acts restricted by
copyright.
266. The appellants would be criminally liable at this point. Section 131(1)(c)
captures possession with a view to an infringing act; performing the act is not
required. 355 It is in one sense the primary offence, as it will be unusual for an
ISP to commit the offences in subsection (d) without first having possession,
coupled with the necessary mens rea.
267. The actus reus of s 131(1)(c) is quite separate from what the conspirators
might actually go on to do with a particular file. It is enough that they have in
view an infringing act.
268. The ways those infringing acts are categorised may overlap. Megaupload’s
subsequent interaction with the user may be treated as copying or
communicating the protected work, which are both restricted acts under s 16.
Section 131(1)(d) is not symmetrical with s 16 and introduces other terms for
conduct that is potentially criminalised. As we shall see, the dissemination of
infringing copies by an ISP falls within the term “distribute”. These are not
intended to be mutually exclusive categories of conduct. “Distribute” is not
used elsewhere to describe the restricted acts.
269. The actus reus is also unaffected by what the conspirators did or might do if
their possession of an infringing copy was later detected. This is why the
Court of Appeal was correct to hold that the issue of safe harbour had no
relationship to the possession offence. Safe harbour does not avail if
possession, with the requisite intent, is a crime in the first place. It is only a
limited protection for an ISP which has unwittingly hosted an infringing copy.
354 Copyright Act 1994, ss 36(d) [US-AUT-006-0285] and 131(1)(d)(iii) [US-AUT-006-0370].

355 The words “with a view to committing” may signal something less that “with intent to commit”. Caddick,
Davies, Harbottle Copinger and Skone James on Copyright, above n 96, at 1627 [US-CAA-050-1536].
89
The 2008 amendments

Background to the amendments
270. ISPs were a specific focus of the amendments inserted in 2008. The Position
Paper and the Explanatory Note proceeded on the basis that:
270.1 The existing definition of copying was broad enough to capture

digital copying. 356
270.2 ISPs already faced potential liability for infringement. 357
270.3 The Bill should define when ISPs should be civilly and criminally
liable for infringement. 358
271. Nowhere in the policy development phase or the legislative history is there any
suggestion that ISPs were not liable for copyright for infringement, or should
be excluded the scope of the existing criminal offences. Instead, it was
recognised that digital technology allows infringement to occur cheaply,
quickly and on a vast scale. 359
272. Under the heading “Internet service liability”, the Explanatory Note observed
that the copying of material - “central” to the functions of ISPs - exposed
them to liability for infringement. “Communication”, on the other hand, was a
new term introduced to enhance the position of copyright owners. The
existing language was regarded as “relatively broad” but the Note advised that
a “technology-neutral” term would be better.
Transient reproduction/communication
273. The passages in the Note dealing with “Reproduction” treat that activity as
synonymous with copying. This is consistent with s 2. 360 The definition of
copying was amended “to clearly apply to digital copying of works in all
356 Ministry of Economic Development Digital Technology and the Copyright Act 1994: Position Paper (December 2002),
at [37] and [38] [US-CAA-031-1195].
357 At [74]–[76] [US-CAA-031-1203].
358 At [74]–[80] [US-CAA-031-1203]. Copyright (New Technologies and Performers’ Rights) Amendment Bill 2006
(explanatory note), above n 349 at 4–5 [US-CAA-028-1112].
359 Ministry of Economic Development Digital Technology and the Copyright Act 1994: A Discussion Paper (July 2001) at
[34]–[39] [US-CAA-032-1261]. Digital Technology and the Copyright Act 1994: Position Paper, above n 356, at 15–16
[US-CAA-031-1191].
360 “Copying – (a) means… reproducing… the work in any material form (including any digital format), in any
medium and by any means…” Copyright Act 1994, s 2 [US-AUT-006-0260].
90
forms.” This was done in “the interests of clarity and simplicity”.

Significantly, the Explanatory Note stated: 361
Under the Act, liability for unauthorised copying can currently arise in
relation to such transient or incidental copies that are a necessary part of
the computer or communications processes, for example, when
browsing websites on the Internet. This has implications for individual
computer users as well as organisations like Internet service providers.
The Bill, therefore, amends the Act to introduce a limited exception
from infringement for such copying where the resulting copies have
no independent economic significance.
274. It is recognised here that the “communications processes” of the internet

potentially expose ISPs to liability for the creation of transient copies because
the communication of a work as an act of copying, and already covered by the
statutory language. 362 That is confirmed by the inserted provision, s 43A,
which assumes transient or incidental reproduction can infringe copyright and
creates an exception to infringement only when the reproduction is “…an
integral and essential part of a technological process for (i) making or receiving
a communication that does not infringe copyright; or (ii) enabling the lawful
use of, or lawful dealing in, the work; and… has no independent economic
significance.” 363
275. The position, then, is that an ISP is otherwise liable for the communication of
an infringing copy. By adding “communication” as a restricted Act, Parliament
did not intend to immunise ISPs for all activities covered by that term. On the
contrary, the amendment removes any argument that transient reproduction
cannot infringe copyright.
The ISP provisions

276. These amendments clarify when an ISP will be exposed to liability for copyright
infringement. They do not create new forms of liability but are predicated on
existing liability. To say that ISPs are immunised from the consequences of
361 Copyright (New Technologies and Performers’ Rights) Amendment Bill 2006 (explanatory note), above n 349 at
4–5 [US-CAA-028-1111].
362 The Explanatory Note describes the new provision dealing with technological protection measures as capturing
anything that could circumvent the owner’s rights, “not just the reproduction right”: at Copyright (New
Technologies and Performers’ Rights) Amendment Bill 2006 (explanatory note), above n 349, at 5 [US-CAA-
028-1113]. The p 2 summary of government decisions has the phrase “(including communication, not just
copying)”. In context, this does not mean that reproduction/copying and communication do not overlap to
some extent – the amendment aims to remove any quibble that some aspect of the owner’s rights is not
protected. “Communicating” may involve activities that are not copying, for instance the broadcasting of a sound
recording.
363 Copyright Act 1994, s 43A [US-AUT-006-0288].
91
their online offending is to deny the premise on which these provisions are
based.
277. The definition of “internet service provider” identified two kinds of provider:
277.1 Those whose services involve transmission or routing, or provisions

of connections between points the user specifies and material of the
user’s choosing.
277.2 Those who host material “on websites or other electronic retrieval
systems that can be accessed by a user.” 364
278. The distinction is between pure “connectivity” providers and those which
store or host material and provide online access to it. Megaupload fell into the
second category.
279. The same distinction emerges in provisions dealing with “Internet service
provider liability” (ss 92A–E). 365 If a person uses a service to infringe
copyright, the service provider is not, “without more”, exposed to “any civil
remedy or criminal sanction” (s 92B). This will generally protect connectivity
providers, though s 92B(2A) addresses the situation in which infringing file
sharing is known to have occurred, and the steps to be taken in response to
that. If the “criminal sanctions” are not supplied within the Copyright Act,
they must arise under the Crimes Act, which would contradict the notion that
the Copyright Act codifies the offences for commercial infringement.
280. Providers who store or host material stand in a different position from
connectivity providers. Mere storage does not infringe copyright but that
protection is lost when storage is accompanied by knowledge of the infringing
material and failure to act properly on that knowledge. 366 Receipt of a
takedown notice will be relevant to knowledge.
281. The corollary of s 92C that an ISP which stores material it knows to be
infringing will be exposed to civil or criminal liability. This activity will be “in
the course of a business” and ss 36 and 131 are therefore engaged.

365 Copyright Act 1994, ss 92A-E [US-AUT-006-0323].
366 Copyright Act 1994, s 92C [US-AUT-006-0324].
92
282. Any Megaupload claim to “safe harbour” is not relevant in this extradition:
282.1 Section 92C is concerned with innocent possession of infringing

material, and timely steps to prevent continuing infringement once
knowledge is acquired. It gives the honest ISP a period of grace in
which to cease what would otherwise be infringing conduct, once it is
aware of the owner’s claim.
282.2 Section 131(1)(c), on the other hand, penalises dishonest possession –

i.e. possession “with a view” to committing acts of infringement. 367
282.3 Section 131(1)(d) captures the dishonest commission of acts of

infringement.
282.4 The United States alleges conduct that falls within s 131, i.e.
dishonestly hosting and using infringing copies in various ways. If
there is prima facie evidence of offences under that section, there is
no intersection with the s 92C “safe harbour”.
283. The Court of Appeal was correct to treat the “safe harbour” claim as being in
the nature of a defence, irrelevant to eligibility. Safe harbour was offered as a
matter of justification beyond “the elements of the offences punishable within
the penumbra of s 131.” 368
284. In reality, the appellants position was advanced as a defence within a defence.
They agree that Megaupload never did the things a New Zealand ISP would
need to do, on notification of infringement, if it wished to claim protection
under s 92C. It did not delete the content. It did not remove access to the
infringing file. That effectively concedes a prima facie case when any issue of
the notice and takedown procedure is involved.
285. They argue instead that there was some justification for their practice of not
deleting files or blocking access (which cannot be reconciled with their policy
of pretending they did remove content). The weight to be accorded to such

368 CA judgment at [189] [SC.001.080].
93
excuses is a matter for trial. 369 In effect, Megaupload says: “we received a
takedown notice relating to unique file X; we accepted the notice was valid
because we acted on it to the extent of deleting the URL link named in the
notice; but we continued to keep and distribute the file via other links because
we had an excuse for doing so; nevertheless, we deceived owners, the USTR
and others by telling them that we did remove infringing content.” 370
286. This would be a free pass to continue infringing activity even once an ISP had
acknowledged the owners’ claim of infringement. The 2008 amendments were
never intended to produce that result. There is no significance in the
placement of the amendments in Part 3, which concerns “Acts permitted…”
Section 92B means a user’s activity does not, of itself, render an ISP liable for
infringement “without more”. In that limited sense it may be regarded as a
permitting provision. But s 92C does not “permit” the knowing infringement
by an ISP at all. It confers a period of grace to stop unwitting infringement –
Megaupload simply carried on.
Why there was no amendment to s 131 in 2008

287. The appellants attach significance to the fact that s 131 was not altered when s
16(f) was amended. As noted above, the definition of “communicate” in s 2
and the new restricted act in s 16(f) were introduced to improve the position of
copyright owners, not to confer a “free pass” on ISPs. 371 This did not imply
any need to redefine the criminal offences to which ISPs were already subject.
288. It was unnecessary to amend s 131 because possession that is inconsistent with
the restricted acts in s 16 was already captured. The amended wording of
s 16(f) means that unlicensed possession with a view to communication
became an offence under s 131 as it stood. Section 131(4) was amended to
replace broadcasting with the communication right but no step was taken to
make subs (1) inapplicable to that right. 372
369 See MM v United States of America [2015] 3 SCR 973, at 95 [US-AUT-018-0916] and Bujak v Republic of Poland
[2009] NZCA 257 at [22] [US-CAA-040-1476]. Furthermore, there was no evidence before the District Court
about the reasons for these failures – merely assertions through counsel.
370 Supplementary Materials Volume 2 at 95, note 241 [US-SUB.02b].
371 Copyright Act 1994, s 16(f) [US-AUT-006-0275].
372 To the extent that Megaupload’s activities included “transient reproduction”, s 43A makes it clear it would not
have protection for unlawful use, of or dealing, in copyright works
94
289. The fact that s 131(1) was not amended in 2008 therefore provides no support
for the thesis that ISPs are not subject to the offences in that provision.
290. Mr Dotcom submits an amendment might have taken the form of an addition
to subs (1)(d), or a provision that mirrored s 107(2A) in the Copyright, Design
and Patents Act 1988 (UK). 373 But:
290.1 There was also no amendment of s 36 of the Copyright Act, which

imposes civil liability for infringement by a business and has a similar
structure.
290.2 Subsection (1)(d) was not symmetrical with s 16 in the first place. It
used the catch-all term “distributes” rather than reflecting the more
detailed list in s 16. Amending the restricted act in s 16(1)(f) did not
imply a need to amend s 131 as communication was already captured,
both by ss 36 and 131. Changing the existing forms of criminal
liability was not the point of the communication right.
290.3 Distributes in subs (d) covered the act of communicating an

infringing copy.
290.4 For the reasons already given, and in any event, file hosting service is
unlikely to come within the scope of subs (d) without first being liable
under (c).
291. Section 198 is the offence provision for Part 9, which deals with performers’
rights. 374 The amendment of s 198(2)(b) to make an offence of communicating
an illicit recording is of no relevance. “Communicated to the public” has been
substituted for “broadcast or included in a cable programme”. Comparable
changes were made to other provisions referring to broadcasts and cable
programmes, including s 131. 375 Some of the restricted acts in s 16 are restated
as restricted acts in separate provisions under Part 2 – e.g. copying (s 30),
issuing copies to the public (s 31) and communicating (s 33). The amendment
of s 33 (amended, not introduced) is part of the global wording change and
373 The High Court noted the United Kingdom provision at [185] [CA.1.0062]. Copyright, Design and Patents Act
1988 (UK), s 107(2A) [US-CAA-027-0756].
375 Cf. HC judgment at [188] [CA.1.0064].
95
was not some special step aimed at immunising ISPs. 376 It is likewise incorrect
to submit that there is any inconsistency between ss 33 and 36, or that s 36 is
concerned with “downstream distribution of infringing copies” (it also applies
to possession). 377
Possession
292. Mr Dotcom submits:
292.1 It is significant that s 92C speaks of storage rather than possession;
292.2 As a matter of law, an ISP does not “possess” a file and Megaupload
had no power of control over a file.
293. Although different terminology has been used, s 92C must harmonise with
other parts of the statute. Section 92C speaks of “material” rather than
“objects” or “copies”, yet it is premised on underlying liability, which must
involve the concept of “object” used elsewhere in provisions defining liability.
If material and objects are necessarily interchangeable, there is no difficulty
equating “stores” and “storing” in s 92C with “possesses” in ss 36 and 131.
Any other interpretation would be hard to reconcile with Dixon, 378 in which
this Court held that transferring a digital file was an obtaining of property. By
the Oxford English Dictionary, the first meaning of “obtain” is “[t]o come into
the possession or enjoyment of (something)…”
294. Through a process the appellants created, Megaupload copied files onto
servers over which it had exclusive control. 379 It not only had physical
possession of the files on its servers, it also had rights of control over those
files, including the right to delete them. The terms of service, governed by the
law of California, entitled Megaupload to suspend, archive or delete an
account, “and all related information and data”, without notice, for, among
other things, unauthorised use of copyright material. For all the copyright
infringement notices it dealt with, Megaupload was contractually armed with
the power to delete an infringing copy. And for all the repeat infringers it
376 Cf. Submissions for Mr Dotcom at 4.21, 4.24 and 4.84.

377 Cf. Submissions for Mr Dotcom at 4.24 and 4.84.
378 Dixon v R [2015] NZSC 147 [US-AUT-060].
379 Apart from access by the lessor for maintenance. ROC First Supplement at [72(b)] [B-0921].
96
rewarded, it had the power to suspend or terminate the users’ accounts for
conduct that infringed copyrights. 380
295. The 2008 amendments assume that an ISP seeking to claim immunity once it
becomes “aware of the infringing material”, will have the ability to “delete the
material or prevent access to it”. 381 If its contractual obligations with users
inhibit it from taking that action, there is no immunity and it becomes
pointless for the appellants to suggest they are protected under ss 92B and
92C. In Megaupload’s case, the appellants exercised their own choice about
how to respond to takedown notices, and chose not to exercise the powers
conferred on them by their own terms of service. Repeat infringers were not
advised that notices had been lodged against their content. 382
296. The appellants sometimes removed the user’s access to files and assumed
exclusive control. The biography of TE is a good example. The appellants
cultivated this “known infringer”, paying him nearly $50,000 in 28 payments
over a year, and granting him exemptions from auditing and file size limits.
TE claimed to have uploaded more than 9,000 videos but eventually became
disillusioned with his income from the rewards programme and set up his own
“tube site”. He also began deleting his videos from Megaupload, whereupon
Mr van der Kolk deactivated his account. TE complained he had lost access to
his videos and could not delete them. Mr Dotcom forwarded one of his emails
to Mr van der Kolk with the instruction: “[d]o not turn this idiots account
back on. And don’t give him access to his videos”. TEs videos remained
publicly available on Megaupload. 383
297. The appellants rely on Your Response Ltd v Datateam Business Media Ltd in arguing
that an ISP is not the bailee of a file. 384 The Court of Appeal (UK) accepted
there was “a powerful case for recognising that the essential elements of
possession can be exercised over digitised materials”. 385 But it was bound to
maintain the common law distinction between tangible property as choses in
380 ROC Second Supplement at [135] [B-0131].

381 Copyright Act 1994, s 92C(2)(a) [US-AUT-006-0324].
382 See, for example, the repeat infringer TH: ROC First Supplement at [63(b)] [B-0913].
384 Submissions for Mr Dotcom at 4.86 [KD.SC.SUB.01]. Your Response Ltd v Datateam [2014] EWCA Civ 281 [KD-
AUT.210].
385 Your Response Ltd v Datateam Business Media Ltd, above n 384, at [27] [KD-AUT.210].
97
possession and intangible property as choses in action. For this reason it held
that a digital database could not form the subject matter of the tort of
conversion, which requires interference to possession of chattels, and could
not be the subject of a possessory lien at common law.
298. The contractual arrangements are different in these appeals and, more
importantly, the statutory context prevails over the conceptual boundaries of
the common law. This Court considered Your Response in the course of its
reasons in Dixon, and did not regard it as determining the meaning of
“property” in the context of our Crimes Act. 386 The meaning of possession in
the Copyright Act should be similarly interpreted. An internet hosting service
is the possessor of the digital files it stores:
298.1 A digital copy is deemed to have a material form and, as a copy, is

also treated as an “object” for the purposes of the statute. 387 (It
would be treated as a “document” under the Crimes Act definition.)
298.2 An ISP is potentially liable for copyright infringement by storage. 388

The “safe harbour” provision assumes the power to delete or block
access to an infringing file.
298.3 Within the Act, an ISP’s civil liability arises under s 36 and its criminal
liability under s 131. Both create forms of liability for possessing an
infringing object.
299. ISPs must be capable of possessing digital files (objects) – and possessing them
by storage - for these provisions to work sensibly together. As with Dixon, the
statutory language provides an interpretation that is not dictated by the limits
of traditional common law categories and the tangible/intangible distinction in
Your Response does not accord with the Copyright Act framework. 389
386 Dixon v R, above n 378, at [50] [US-AUT-060-2206].

387 Copyright Act 1994, ss 2, 12 [US-AUT-006-0258].
388 Copyright Act 1994, ss 92B and 92C [US-AUT-006-0323].
389 The distinction drawn in Your Response Ltd v Datateam Business Media Ltd, above n 384, at [19]-[21] [KD-AUT.210]
between digital information and the medium in which it is held – the latter tangible and capable of possession and
the former not – is problematic in the circumstances of the Copyright Act. Objects that embody an infringing copy
of a work are merely a subset of the s 131 concept of “an object that is… an infringing copy of a copyright
work”. An unlicensed copy of a sculpture is an example from this subset; the infringing copy of a work and its
physical embodiment are one and the same. Pirated compact discs – i.e. discs that replicate the licensed works
sold in CD stores – could be regarded as objects that embody musical works. But this example shows the
difficulty of reading into s 131 a requirement that “objects” be discrete physical embodiments of the infringed
98
300. While it is possible to regard the Megaupload servers embodying infringing

copies as objects for the purposes of s 131, the better view is that the
individual files are themselves infringing objects, just as the file in Dixon was a
transferable form of property – and would have been so even if it remained on
the owner’s hard drive.
The offence of distributing an infringing copy – s 131(1)(d)

301. We have so far focused on committing the possession offence in s 131(1)(c), or
conspiring to do so. The alleged conduct also conforms with the offence in
subs (1)(d).
302. As submitted above, the term “distributes” in s 131 largely subsumes the
activity of communicating an infringing copy. This is another reason ISPs
were potentially liable for online infringement before 2008.
303. In Ming v HKSAR, the Court of Final Appeal (Hong Kong) considered the
meaning of “distributes” in s 118 of the Copyright Ordinance. 390 Like s 131,
this provision was derived from s 107 of the Copyright Designs and Patents
Act 1988 (UK). 391 The relevant definitions also work in a similar way. 392
304. Ming had been convicted under s 118(1)(f), which is the close equivalent of
s 131(1)(f). Using the BitTorrent system, he had enabled downloaders to
obtain infringing copies of films from his computer. He argued that, for
distribution of a copy to occur, the distributor must first have possession of
works. If a person (# 1) sells at a market CDs that contain a certain album (A), those discs might be treated as
single “objects”, or tangible property on the Your Response approach. Yet tangible/intangible distinction implies
an illogical difference for a second person (# 2) who sells discs containing three infringing albums A, B and C, or
yet another person (# 3) whose discs contain some music that infringes copyright and other music which does
not. The same difficulties arise with analogue technology. A magnetic tape might contain only one infringing
song or forty. It cannot have been Parliament’s intention that, in the context of pirated digital copies, liability
under s 131 should depend on whether the specific kind of medium in which the infringing copy is made is
tangible or intangible or physically separable from other “objects” that might be contained in the same storage
medium. If sellers (# 2) and (# 3) are exposed to criminal liability, which is the only sensible conclusion, it
should not matter how many copyright protected albums are included in each compact disc.
390 Ming v HKSAR [2007] 2 HKLRD 489 [US-AUT-079]. The unanimous Court comprised Li CJ, Bokhary, Chan
and Ribeiro PJJ and Lord Millett NPJ.
391 By way of comparison, the Australian Copyright Act 1968 (Cth), Part 5, Division 5, creates a number of separate
offences. Section 132AA defines “article” to include “a reproduction or copy of a work or other subject-matter,
being a reproduction or copy in electronic form.” “Distribute” includes “distribute by way of communication”
(except in Subdivision E). Comparable offences include s 132AI, “Distributing infringing copy”, and 132AJ,
“Possessing infringing copy for commerce”. [KD-AUT.299].
392 The Copyright Ordinance 1997 (Cap 528) (HK) [US-CAA-057] (since amended) defined copying to mean
“reproducing the work in any material form. This includes storing the work in any medium by electronic means.”
(Cf. s 2 of the New Zealand statute.) Under s 26 of the Ordinance, making available copies of the work is a
restricted act, including by means of the internet. In the New Zealand statute, the s 2 definition of
“communicate” means “to transmit or make available by means of a communication technology…” It is
apparently common ground that this extends to the online activities of an ISP. [US-AUT-006-0260].
99
the copy which he transfers to the recipient, after which the distributed copy is
no longer in his possession. 393 He maintained his conduct was entirely passive.
305. The Court rejected these arguments. It did not accept that “an electronic copy
can only exist as incorporated in a storage article which is only distributed by
its physical transfer.” 394 Nor did it consider “that an electronic copy of a
copyright work somehow a priori cannot be distributed via the internet”. 395 The
term “distribution” was not defined in the Ordinance and should receive its
ordinary meaning (neither is it defined in the New Zealand Copyright Act).
That ordinary meaning was “clearly capable of encompassing a process in
which the distributor first takes necessary steps to make the item available and
the recipient takes steps of his own to obtain it.” 396
306. The Mega companies were registered in Hong Kong. The Ming case shows
that, under a law of that jurisdiction comparable to our own, their activities
would be punishable as distributing in the course of a business. 397
307. In London Sire Records, the United States District Court for the District of
Massachusetts reached a similar conclusion. 398 The Australian offence in
Griffiths, the counterpart of the same United States offences charged here,
made it a crime to “distribute” an infringing work, which in that case was
software disseminated over the internet. 399 The reasoning of this Court in
Dixon is also comparable. If obtaining property can mean acquiring a digital
copy, sending and receiving a digital copy can readily be thought of as a
distribution – in neither situation does the retention of the original file make a
difference: “[w]e do not regard the fact that Mr Dixon deleted the compilation
393 Ming v HKSAR, above n 390, at [52]–[55] [US-AUT-079-2737].

394 at [38]–[46] [US-AUT-079-2732] and [55] [US-AUT-079-2738].
395 At [54] [US-AUT-079-2737].
396 At [54] [US-AUT-079-2737].
397 Megaupload did not provide service to Internet Protocol addresses from Hong Kong, apparently to reduce its
legal exposure in the jurisdiction where it was registered. See ROC Fifth Supplement at [165] [B-1100] and
ROC at [39(l)] [B-0204].
398 London Sire Records v Doe 1 542 F Supp 2d 153 (D Mass 2008) [US-AUT-076]. The statute defined “distribution”
to mean exchanges “by sale or other transfer of ownership”. It was argued that an electronic download does not
divest the sending computer of its file, and therefore does not implicate any ownership rights over the sound file
held by the transferor. But the Court held that, while there must be a distribution of “material objects”, there was
“no reason to limit ‘distribution’ to processes in which a material object exists throughout the entire transaction –
as opposed to a transaction in which a material object is created elsewhere at its finish.” (At [13]) [US-AUT-076-
2645]. The transfer requirement was “concerned with the ability of a transferor to create ownership in someone
else – not the transferor’s ability simultaneously to retain his own ownership.” (At [14]-[15]) [US-AUT-076-
2646].
399 Griffiths v United States of America, above n 13, at [45] [US-AUT-021]. Copyright Act 1968 (Cth), s 132(2).
100
from the computer after he had copied it as critical. He would still have
obtained property if he had simply downloaded a copy of the compilation.” 400
308. Distribution also subsumes the communication of transient copies.

Section 43A assumes that transient reproduction may infringe copyright. In
subs (b)(i), it also aligns reproduction – i.e. copying – with the making or
receiving of a communication. 401 “Communication” is defined to include
making available by means of an electronic retrieval system.
309. The process of “downloading” is an act of distribution. It results in a new

copy stored, more or less permanently, on a user’s computer. The creation of
a transient copy is no less a distribution. Making available an infringing copy
(for instance, via Megavideo’s streaming service) involves only a difference that
the statute does not treat as significant – i.e. the new copy is transient or
ephemeral. Several English cases establish that to create a transient copy is to
create it in a material form. 402 It follows that activities such as the streaming of
infringing video content involve the distribution of a protected copy in the
same manner as would downloading. The only difference is that the copy is
transient.
310. This analysis has two consequences:
310.1 Streaming infringing video content in the course of a business is not,

as the High Court apparently supposed, a more benign activity
intended to fall outside the criminal offence. 403 Section 131(1)(c) and
(d) would each apply to the conduct of Megaupload/Megavideo.
310.2 Because subs (1)(d) independently applied to the creation of digital

copies in both fixed and transient forms, the fact that (d) was not
amended in 2008 is immaterial.
400 Dixon v R, above n 378, at note 70 [US-AUT-060-2206].

401 Copyright Act 1994, s 43A [US-AUT-006-0288].
402 See Bookmakers’ Afternoon Greyhound Services v Wilf Gilbert (Staffordshire Ltd [1994] FSR 723 at 738 (reproducing a
work “in any material form” does not exclude “materialisation on a television monitor”) [US-CAA-037-1399].
Kabushiki Kaisha Sony Computer Entertainment v Ball [2005] EWHC 1738 (Ch), [2005] FSR 9 at [15] (per Laddie J –
the term “article was not limited to tangible substances. Computer RAM transiently embodying a copy was an
article) [US-CAA-036-1375]. R v Gilham [2009] EWCA Crim 2293 [2010] ECDR 5 [US-CAA-038] (transient
contents in RAM would represent a substantial copy).
403 It constituted only a part of Megaupload’s activities in any event.
101
WIPO Copyright Treaty and TRIPS

Summary
311. The appellants submit that international instruments point to the compression
of ISP activity into a “communication right”, which our legislature has decided
to immunise from criminal sanction.
312. In fact, they work in the opposite way. The Copyright Act must be interpreted
in light of New Zealand’s obligations under the Berne Convention for the
Protection of Literary and Artistic Works (Berne Convention) and TRIPS. 404
New Zealand is not a party to the WIPO Copyright Treaty 1996 (WCT) 405 and
its limited response to that Treaty did not undermine the criminal remedies
necessary to comply with TRIPS, nor the breadth of the protected right of
reproduction necessary to comply with the Berne Convention.
313. The WIPO statement of the communication right was in the nature of a gap
filler in international copyright law and was a synthesis of the existing
communication concept. It did not mark a radical departure. 406 As Ming
suggests, it is not relevant to the construction of a criminal provision akin to s
131.
WIPO
314. New Zealand is not a party to the WCT or the WIPO Performers and
Phonograms Treaty 1996. 407 New Zealand delegates, however, participated in
the diplomatic conferences on the drafting of those treaties.
315. The only legislative response to this association with the WCT was the
introduction of the communication right in 2008. The need for such a step
was seen in qualified terms. The existing language was “relatively broad” but
“technology-specific”, and it was not clear that it covered “all aspects of
communication and making available of works, particularly as technology
404 Berne Convention for the Protection of Literary and Artistic Works (9 September 1886, as revised at Paris on 25
July 25 1971 and amended in 1979) [MO-AUT.162]; TRIPS: Agreement on Trade-Related Aspects of
Intellectual Property Rights 1994, above n 338 [US-SCA-005].
405 WIPO Copyright Treaty 1996, above n 341 [KD-AUT.230].
406 See Jane Ginsburg “The (New?) Right of Making Available to the Public, Columbia Law School: Public Law and Legal
Theory Working Paper Group” (2004) No. 04-78 [US-SCA-006].
407 World Intellectual Property Organization [WIPO], Performances and Phonograms Treaty (adopted Geneva on
20 December 1996).
102
continues to develop.” 408 For that reason, the Bill amended the Act “by
creating a technology-neutral right of communication to the public.” 409
316. The WCT expressly addressed only civil law matters. It did not affect the
obligations of member states to provide criminal sanctions one way or another.
Its influence in New Zealand was that it produced a small enhancement –
really no more than a clarification – of the civil remedies available to copyright
holders. This modest step cannot justify the conclusion that Parliament, at the
same time, set out to decriminalise egregious cases of online piracy.
TRIPS
317. Article 1(1) of the WCT provides that the Treaty shall not “prejudice any rights
and obligations under any other treaties”. 410 The WCT post-dates TRIPS.
New Zealand is a party to TRIPS and the Copyright Act was enacted
specifically to give effect to TRIPS provisions. 411 Article 61 of that agreement
stipulates that “[m]embers shall provide for criminal procedures and penalties
to be applied at least in cases of wilful… copyright piracy on a commercial
scale.” 412
The WCT commentary on “distribution”

318. The High Court placed some emphasis on the WCT and associated
commentary. It saw this as recognising “an important distinction between
dissemination by the transfer of possession of a physical embodiment of a
protected work (distribution under art 6) and dissemination through electronic
transmission (communication under art 8).” 413 But the WCT provides a floor
not a ceiling in the context of the distribution right. 414 Nothing in the WCT
prevents a state from applying the distribution right to intangible copies. The
same WCT distinction was examined in Ming and found to be irrelevant to the
408 Copyright (New Technologies and Performers’ Rights) Amendment Bill 2006 (explanatory note), above n 349, at
4 [US-CAA-028-1112].
409 At 4 [US-CAA-028-1112].
410 WIPO Copyright Treaty 1996, above n 341, art 1 [KD-AUT.230].
411 Digital Technology and the Copyright Act 1994: Position Paper, above n 356, at [13] [US-CAA-031-1190]. Video Ezy
International (NZ) Ltd v Roadshow Entertainment (NZ) Ltd [2002] 1 NZLR 855 (HC) at [15] [US-CAA-043-1511].
412 TRIPS: Agreement on Trade-Related Aspects of Intellectual Property Rights 1994, above n 338, art 61 [US-SCA-
005-2726].
413 HC judgment at [176] [CA.1.0059].
414 See Sam Ricketson and Jane Ginsburg International Copyright and Neighbouring Rights: The Berne Convention and Beyond
(2nd ed, Oxford University Press, Oxford, 2006) at 697 [11.94], noting that the United States has extended the
distribution right.
103
interpretation of the Copyright Ordinance 1997 (HK). 415 The Court regarded
the WCT as “an agreement as to minimum levels of copyright protection to be
implemented.” 416 It did not follow that the scope of the Ordinance offence: 417
… should be similarly constrained, if, as a matter of proper construction,

it provides more extensive protection. This is especially so where, as in
the present case, the Court is not concerned with ascertaining the scope
of a rightholder’s distribution right nor with conduct permissible after
exhaustion of that right – which was the relevant focus of the Treaty –
but with the unlicensed dissemination of multiple infringing copies via
the internet.
319. The Court, which included Lord Millett, also considered the view expressed in
Laddie, Prescott and Vitoria, The Modern Law of Copyright and Designs, that the
distribution right did not apply to transmission over the Internet. This
position reflected the applicable European Directive, which “echoes the level
of protection agreed to by the contracting parties to the WIPO Treaty.” 418 The
learned authors “were postulating a construction of United Kingdom
legislation which would reflect the limited level of protection stipulated by the
Directive, which was a measure aimed at harmonising copyright law in the
European Community. Those concerns do not engage the Hong Kong
courts.” 419
320. The High Court saw the creation of a new offence in s 107(2A) of the United
Kingdom statute as marking a significant contrast with the 2008 amendments
in New Zealand. 420 But s 107(2A) was enacted because the British government
“decided that in order properly to implement the Directive it was necessary to
create a new criminal offence.” 421 The taking of this step in 2003, in response
European obligations, does not illuminate the meaning of s 131 before or after
the 2008 amendments.
415 Copyright Ordinance 1997 (Cap 528) (HK) [US-CAA-057].

416. Ming v HKSAR, above n 390 at [47] [US-AUT-079-2735].
417 At [47] [US-AUT-079-2735].
418 At [50] [US-AUT-079-2736].
419 At [52] [US-AUT-079-2737].
420 Copyright, Designs and Patents Act 1988 (UK), s 107(2A) [US-CAA-027-0757].
421 Caddick, Davies, Harbottle Copinger and Skone James on Copyright, above n 96, at 1628, at [22–23] [US-CAA-050-
1537].
104
The Berne Convention

321. The WCT cannot be applied to prejudice New Zealand’s obligations under
TRIPS. It must also be read as subject to New Zealand’s obligations under the
Berne Convention:
321.1 Art 1(2) of the WCT provides: “Nothing in this Treaty shall derogate
from existing obligation that contracting parties have to each other
under the Berne Convention…” 422
321.2 And art 1(4) of the WCT provides: “Contracting Parties shall comply
with Art 1 to 21…of the Berne Convention.” 423
322. Agreed Statement concerning art 1(4) of the WCT states: 424
The reproduction right, as set out in Art 9 of the Berne Convention, and
the exceptions permitted thereunder, fully apply in the digital
environment, in particular to the use of works in digital form. It is
understood that the storage of a protected work in digital form in an
electronic medium constitutes a reproduction within the meaning of Art
9 of the Berne Convention.
323. If storage in digital form is a “reproduction”, the Copyright Act ought to be

interpreted consistently with Berne to mean that the creation of a
copy/reproduction at both the ISP user’s end is an act of copying and/or an
act of distribution. Reinbothe and von Lewinski observe that art 9 is a
“confirmation of the general understanding attached to the wider concept of
reproduction.” 425
324. Reading the Copyright Act as giving ISPs a free-pass because they
“communicate” digital material would therefore be inconsistent with art 9 of
the Berne Convention. 426
The time bar in s 131A of the Copyright Act 427

Time bar not relevant to Question 1
325. The dates and time periods in Counts 4, 7 and 8 are either particulars or
elements of the United States offences that are inessential to the conduct
422 WIPO Copyright Treaty 1996, above n 341, art 1(2) [KD-AUT.230].
423 WIPO Copyright Treaty 1996, above n 341, art 1(4) [KD-AUT.230].
424 WIPO Copyright Treaty 1996, above n 341 note 1 [KD-AUT.230].
425 Jorg Reinbothe and Silke von Lewinksi The WIPO Treaties on Copyright: A Commentary on the WCT, the WPT and the
BTAP (2nd ed, Oxford University Press, Oxford, 2015) at [7.1.55] [US-SCA-004-2699].
426 Berne Convention for the Protection of Literary and Artistic Works 1886, above n 404, art 9 [MO-AUT.162].
427 Copyright Act 1994, s 131A (repealed by s 413 of the Criminal Procedure Act 2011) [KD-AUT.338].
105
comparison s 24(2)(c) involves. The distillation of the conduct to its essential

form will not involve these details, and the conclusion that the conduct
amounts to the kind of offence for which extradition may be granted is
reached without them.
326. If a time bar were relevant, it would bite at the assessment under s 24(2)(d)(i).
Examination of the evidence might, for instance, reveal that it could not
“justify the person’s trial” because what would otherwise be extraditable
conduct – the conclusion from s 24(2)(c) – is stale under New Zealand law.
327. By challenging the Court of Appeal’s conclusion on s 131A, the appellants

raise another matter that is not properly before this Court. It is also an issue
that is confined to the Copyright Act pathway only.
Continuing offences
328. Count 2 is framed as a continuing offence. It is not dependent upon proof
infringement of any specific work. Section 131A obviously does not apply to
this offence.
329. The time bar issue potentially arises for Counts 4, 7 and 8. Count 4 alleges an
act of uploading and distribution in 2008. Counts 5 and 7 nominate particular
180 day periods in which specific infringing files were distributed. These time
periods reflect elements that are inessential to establishing an extradition
offence under s 24(2)(c). For s 24(2)(d)(i), the evidence shows that the
conduct constituting the infringement continued up to January 2012, well
inside any three year window for laying an information under s 131. Special
Agent Poston detected the infringing files in 2011 and they remained available
for viewing and download in 2012. 428
330. The rationale of art VI.3 of the Treaty is that a person should not be
surrendered for conduct that is “stale” and could not be prosecuted
domestically. 429 Applying this measure, the conduct in the United States
request could be prosecuted in New Zealand. The essence of the offences lies
in the knowing distribution of infringing files, which also implies the prior
possession of those files. The totality of the acts and omissions, described in
428 ROC at [35(b)], [36] and [40(g)] [B-0196].

429 New Zealand – United States Treaty, art VI.3 [US-AUT-002-0092].
106
documents supplied with the request, shows both possession and distribution
continuing until 2011-12. That conduct, if detected in New Zealand, could be
charged under s 131.
331. Communication overlaps with distribution and includes making a copy

available. The relevant infringing copies in Counts 4, 7 and 8 were
continuously made available to the public from the time they were uploaded,
infringing the owner’s right under s 33. 430
332. The conduct constituting an offence under New Zealand’s Copyright Act is
therefore unaffected by any time bar.
Section 131A would not apply to a prosecution under s 131, laid indictably
333. The conduct represented by Counts 4, 7 and 8 could in any event have been
prosecuted indictably in this country in 2012. For this reason also, the time bar
in s 131A would not apply. The context in which s 131A was enacted shows
that the time limit applies only when an offence under s 131 was dealt with
summarily.
334. The present proceedings are governed by the law as it was before the Criminal
Procedure Act came into force. 431 Criminal proceedings were (usually)
commenced by the laying of an information. The prosecution (usually Police)
could choose whether to lay charges summarily or indictably. If laid summarily
the defendant could elect trial by jury if the maximum sentence for the offence
exceeded three months’ imprisonment. If laid indictably the defendant had no
choice in the matter. 432
335. Part 2 of the Summary Proceedings Act set out the procedure where a
defendant was to be proceeded against summarily, and it provided in s 14: 433

431 At the time offences were categories as either summary or indictable. Any offence for which the maximum term
of imprisonment was three months or less was purely summary. Any offence for which the maximum sentence
was 14 years’ imprisonment or more was purely indictable. Offences “in between” were triable either way. Since
1957, the Summary Proceedings Act governed the position. Schedule 1 to the Summary Proceedings Act listed
those indictable offences which could be tried summarily. When the Copyright Act came into force offences
under s 131 carried a maximum sentence of three months’ imprisonment. Therefore they were purely summary.
But the Trade Marks Act 2002 increased the maximum penalty to five years’ imprisonment and those offences
therefore became indictable. That same Act inserted s 131 offences into sch 1 of the Summary Proceedings Act.
432 Summary Proceedings Act 1957, ss 15, 145 and Sch 2 [MO-AUT.014].
433 Summary Proceedings Act 1957, s 14.
107
Except where some other period of limitation is provided… every

information for an offence… shall be laid within six months from the
time when the matter of the information arose.
336. Part 5 of the Summary Proceedings Act was concerned with indictable
offences and made provisions for preliminary hearings of such charges
(committal proceedings). There was no equivalent of s 14 in Part 5, nor was s
14 incorporated into Part 5, unlike some other provisions from Part 2. This
reflected the position before the Summary Proceedings Act and reflected the
position at common law, namely that there was (rarely) any limitation period
for indictable offending.
337. When the Trade Marks Act 2002 increased the penalty for offences under s
131 of the Copyright Act it also brought in a new provision, s 131A:
Despite section 14 of the Summary Proceedings Act 1957, an

information in respect of an offence against section 131 may be laid at
any time within 3 years of the time when the matter of the information
arose.
338. By its very wording “[d]espite section 14…”, the new section made clear that
the general six-month limitation period for the laying of a summary
information no longer applied to offending under s 131.
339. Also, if Parliament had intended to introduce a limitation period for the laying
of an indictable information – in itself an unusual statutory provision – it was
entirely inappropriate and/or unnecessary to make any reference to s 14. Nor
would Parliament have used the permissive language of “may” as opposed to
the mandatory language of “must”, which would have been the appropriate
formula to adopt if it was intended to place a fetter of this kind in relation to
trial on indictment.
PART FIVE: OTHER MATTERS
Jurisdiction of the Extradition Court

340. Section 13 of Mr Dotcom’s submissions raises the same issues on which leave
was declined in Dotcom v District Court at North Shore. 434
434 Dotcom v District Court at North Shore [2019] NZSC 27.

108
Mr Batato’s Appeal
Section 24(2)(d)(i)
341. Mr Batato advances his appeal primarily on the basis that there is an absence of
prima facie evidence that he became a member of the conspiracy for Counts 1-
3, or participated in the offences alleged in the remaining counts. The Court of
Appeal denied special leave on all questions of law concerning the satisfaction
of a prima facie case, and specifically addressed his position in reaching that
decision. 435 Consequently, this argument is not properly before the Court as
part of these appeals.
342. The submission is made that the United States charges do not concern the
actions of Megaupload and its officers, but rather the conduct of users of the
site. And it is said that a general awareness of infringing content on
Megaupload cannot support criminal liability. These contentions have already
been addressed – the United States charges concern the deliberate conduct of
the conspirators themselves and the evidence supports inferences of
knowledge and dishonesty in relation to the specific offences in Counts 4-13.
343. The prima facie evidence that Mr Batato joined the conspiracy is identified in
the Supplementary Materials Volume 2 at [471]-[514]. 436 This refutes the
submission that Mr Batato was not aware he assisted in the operations of a
company that purposefully engaged in copyright infringement for financial
gain. It cannot be said that Mr Batato was at arm’s length from the unlawful
activities of his colleagues. One example suffices: 437
On or about March 11, 2010, by Skype, BATATO asked NOMM to

approve an advertising campaign on Megaclick.com for JSC. 438 NOMM
responded that JSC 439 was an “advertizer of full lenght movies and a
“warez 440 movies site.” BATATO immediately asked, “Yes, and?”
NOMM replied, “ill ask Mathias [ORTMANN]… last time we talked
deal wa not to add obviosly stolen content sites.” BATATO then asked,
“What is the problem? Just want to understand”. NOMM responded,
“According to Mathias [ORTMANN] its not good approve warez
movies sites as its bad for MV 441”. BATATO then replied, But we have
435 CA judgment at [267] [SC.001.104].
437 At [494] [US-SUB.02b].
438 Megaclick was a pay-per-click advertising program owned and operated by the Mega Conspiracy that permitted
advertisers to place ads on the Mega Sites. See ROC Third Supplement at [136(e)] [B-1049]. The operations of
Megaclick are referred to in the ROC Sixth Supplement at [170(n)], [170(z)] and [170(dd)] [B-1132].
439 Described in ROC Seventh Supplement at [171(i)] [B-1149].
440 See glossary at ROC Fifth Supplement, Exhibit A: “Warez: Infringing copies of copyrighted computer software
and other content…” [B-1110].
441 Megavideo.
109
ireel 442 also”. NOMM responded by asking BATATO to discuss the

issue with ORTMANN. Despite this conversation, JSC was permitted
to continue advertising on Megaclick.
On or about March 11, 2010, by Skype, NOMM and Ortmann discussed

whether to allow “warez” sites to advertise directly on the Mega Sites.
NOMM said, “for MV… I have ads… what links to warez site that has
ful length vidos”. ORTMANN responded, “actually, suicidal for MV”
and then asked “Finn [BATATO] approved that?” NOMM replied,
“sure he always does”.
On or about April 9, 2010, by Skype, BATATO told NOMM, “Be aware

that advertising (cash” are as important as EVERYTHING else in the
company.”
Section 24(2)(c)
344. Counts 1-3 allege that Mr Batato was a member of the conspiracies. Counts 4-
13 allege that he aided and abetted Megaupload and the named defendants in
the commission of these offences. There is no deficiency here. The
allegations of conduct translate to conspiracy as defined by s 310 of the Crimes
Act or party liability under s 66. 443 If Cullinane was correctly decided, there
would be no need to go beyond the general concepts of “conspiring to” or
“participation in”, described in art II.
Costs
345. The respondent seeks costs in the event that the judicial review proceedings
are seen to be an abuse of process.
6 May 2019
___________________________________
K Raftery QC / D Boldt / F Sinclair / Z Fuhr
Counsel for the United States of America
TO: The Registrar of the Supreme Court of New Zealand.

AND TO: The appellants.
442 Described in ROC Seventh Supplement at [171(b)] [B-1149].

443 The Copyright Act has a specific provision (s 133) defining the liability of corporate officers for the offence in s
131 [US-AUT-006-0372].

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IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI SC57/2018

BETWEEN KIM DOTCOM

AND THE UNITED STATES OF AMERICA

AND THE UNITED STATES OF AMERICA

AND THE DISTRICT COURT AT NORTH

SUBMISSIONS OF COUNSEL FOR THE UNITED STATES OF AMERICA

AND BRAM VAN DER KOLK

AND THE UNITED STATES OF AMERICA

AND BRAM VAN DER KOLK

AND FINN HABIB BATATO

AND THE UNITED STATES OF AMERICA

AND THE DISTRICT COURT AT NORTH

AND THE UNITED STATES OF AMERICA

The 1965 Act .............................................................................................................................. 62

2. Unlike today’s legitimate streaming services, however, Megaupload held the

3. Rights holders sustained many hundreds of millions of dollars in losses, while

1 Record of the Case (ROC) First Supplement at [103(aa)] [B-0958].

Scope of the appeals

5.1 Did the Court of Appeal correctly answer Questions 1 and 2,

5.2 Did it correctly dismiss the judicial review applications as an abuse of

7. Question 2 concerns one aspect of the evidential requirements for eligibility, in

3 Extradition Act 1999, s 24(2)(c) [US-AUT-001-0019].

The United States charges

11. The superseding indictment alleges three conspiracy offences: 12

11.2 There was an associated agreement to deal with the money so

9 CA judgment at [325]; see also [265] [SC.001.118].

12.1 Two counts, 4 and 8, involve direct acts by the appellants:

12.1.1 Count 4 concerns Mr van der Kolk’s uploading and

12.1.2 Count 8 describes the mass acquisition of YouTube clips, in

Summaries of the alleged offending

The appellants’ continued attack on the prima facie case

The appellants’ “gaping hole” thesis

18.1 That status may either be transposed; or

18.2 May be inferred from the evidence described in the ROC.

The “dumb pipe” defence

discussing the redirection of links to pornographic files from Megaupload.com

ORTMANN then said, “yes... we could, however, also be shooting

23 Supplementary Materials Volume 2 at [66] [US-SUB.02b].

22.3 Personally examined the portfolios of repeat infringers before making

Notice and takedown issues

27.1 For Count 2, the deliberately ineffective response to takedown

35 Copyright Act 1994, s 92C(2)(a) [US-AUT-006-0324].

29. Megaupload received millions of takedown notices identifying specific

Multiplication of URL links pointing to the same file - the “deduplication”

32.1 If B published their link on the internet, it might be detected by the

33.2 As discussed in Part Four below, this is really a defence within a

33.3 It is the subject of adverse factual findings in the courts below. 43

43 See, for example, CA judgment at [260] and [284] [SC.001.102].

35.3 “[G]rowth is mainly based on infringement anyway :)”; 51 or

35.4 “99.999%” of their videos are not “legit”; 52 or

PART ONE: THE TWO QUESTIONS ON WHICH LEAVE WAS GRANTED

58 Disney Enterprises Inc v Hotfile Corp, above n 55, at [10] [US-AUT-059-2154].

Defining the conduct alleged

63 Extradition Act 1999, s 4 [US-AUT-001-0009].

Count 2 in the indictment charges the appellants jointly with conspiring

populating Megavideo front pages with user-generated content

48.6 Conduct their auditing procedures to allow infringing content to be

48.9 Showcase the availability of High Definition copyright movies.

48.10 Frustrate the efforts of copyright owners to have infringing content

48.13 Disguise the hosting of infringing content by making Megaupload

79 CA judgment at [185],[200], [216], [219], [222], [229] [SC.001.079].

49.1 The translation of the laundering conduct to a New Zealand offence