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Dotcom to challenge the case against him, Davison argued, because of the way his property had been searched and seized by the US. The Bill of Rights Act, also, acted as a “shield against an intrusive state”, he argued. The extradition process was one designed to protect the rights of individuals.

In the case brought by the US, Davison said there were special reasons why disclosure should be ordered. “The attempt to transfer civil copyright concepts into the criminal arena” brought in special considerations for the way technology was used, from which issues of fact and law would flow. Copyright was the “keystone” defence — if the case over copyright collapsed then everything else could be seen as a legitimate business activity. It was necessary for the prosecution to show wilfulness over copyright infringement, and the uses to which infringing material had been put. Here, he argued, was where the US had to provide evidence.

Crown Law Office lawyer Mike Ruffin took the opposite tack. The ROC was an exercise in faith. It could not be used to try to discover if a particular strand of the case against the accused was able to be justified. Instead it could be used if a strand was shown to be unjustified. It could not be used to transport the US criminal trial to a New Zealand court. The assurance of “good faith” was implicit in the ROC — the strength of a case is not tested at the extradition phase. That was what the trial in the US was for.

Harvey ruled in favour of disclosure — a massive win for Dotcom and the other three. Sure, he said, the ROC was a fast-track process that had a basis in trust. There were “certain presumptions about the fairness and rigour of the legal and investigative process” in the US. But he said the ROC was not the entire process — it was a means of putting evidence before the court. It was not the court’s role to decide whether someone was guilty or not, but to find if there was a case to answer.

Harvey said Dotcom “lives in a digital world” but did not have access to his information and records which were on computers and servers taken from his home during the raid. “He simply does not have access to information which may assist him in preparation for trial.” Denying Dotcom the ability to access his records deprived him of the opportunity to challenge the ROC — and it was a fundamental right he be able to do so with the information taken from him during the course of the investigation.

But Harvey said there was particular argument to be made about the “context of the case” which had “levels of subtlety and nuance” in regard to criminal copyright which went far beyond a normal criminal offence. He said the issues were complicated “by the fact that the United States is attempting to utilise concepts from the civil copyright context as the basis for the application of criminal copyright liability”. It

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