Kim Dotcom: Lost papers and window washer put court in flap

Kim Dotcom in the Auckland District Court on the first morning of the extradition hearing. Photo / Jason Oxenham

Steve Braunias observes the Kim Dotcom hearing.

Dramatic scenes at Kim Dotcom's extradition court hearing - and the largest copyright case in history, where issues of internet freedom as well as Dotcom's freedom are at stake - in a courtroom in downtown Auckland this week when some papers went missing.

They were very important papers. They were copies of a particular series of affidavits. They were needed, they were crucial, they were the sheet music that made the whole extradition hearing sing. But where were they?

"Your Honour," said Ron Mansfield, who acts for Dotcom, "they cannot be located."

Judge Nevin Dawson looked down upon Mansfield with something that may or may not have resembled a cold fury.

His jaw was firm. The line of his mouth was severe. He did not part that line; he said nothing. His silence was concise. It spoke paragraphs.

It demanded that Mansfield step into the void and fill the silence. Mansfield tried his best. "It's due to their size, sir," he gabbled.

And still the judge said nothing. Mansfield swallowed, and talked about the importance of the papers.

He loved those papers. He loved them like them they were his family. He couldn't live without them; their absence was inexplicable, the devil's work.

"Registry can't find the files," he said. "I'm not trying to attribute blame, but ..." He looked at court officials. His eyes were attributing blame.

Finally, Judge Dawson spoke. He has a deep, thrilling voice, with a mahogany timbre. It is the voice of authority.

But when addressing the conundrum of the missing affidavits, it became the voice of hope and optimism. He attempted a smile, and said, "It's possible they're out there somewhere."

It bucked Mansfield's spirits. He took heart. Now that he thought about it, there was every chance the papers were in a box in a storeroom at the end of a hall in a building on the North Shore.

The building could be located. So could the hall, and the storeroom. But which box? "We just need to check through the boxes," he said. The judge sighed.

It was an audible, very expressive sigh. It was a sigh from the heart.

Here he was, 64 years old, appointed to the bench in 2003, now presiding over a complex and difficult case which involved the FBI, Hollywood, politics in Washington and Wellington, illegal raids, allegations of money laundering and fraud, in a hearing conducted before the narrow-eyed squint of national and international media interest - and the whole damned thing had ground to a halt because some papers went missing.

His gaze shifted from the square-shouldered Mansfield to Grant Illingworth QC, who sported a pair of socks with the happy message BEST DAD.

Illingworth represents the co-accused, Bram van der Kolk and Mathias Ortmann. The judge's eyes roamed to the prosecutor, Christine Gordon QC, resplendent in purple skirt and jacket.

And then to Dotcom, wiping his brow with a black cloth. And then to - just who was that gentleman at the back of the court, rather more than merely resplendent in an outrageous suit done out in bright candy stripes?

The judge closed his eyes. So much was on the table.

There were issues of safe harbour, of extradition law, of civil law vs criminal law, of treaty agreements between the US and New Zealand, of frozen funds of hundreds of millions of dollars.

The judge had been around; five years ago, stationed in Vanuatu, he had faced down death threats by a senior thug in a paramilitary unit; but the Dotcom case was huge.

It demanded intense concentration. It kind of like really needed all the paperwork.

Judge Dawson ordered an adjournment. When he left the room, lawyers and court officials faced off. There were whinings, recriminations, tensions.

"Don't look at me. I don't know where they are."

"But you had them ... "

"I'm not lying!"

"No one's accusing you of that. Let's not get carried away."

"Well, when something's gone missing ...

"Is it in the front office? Could it have gone there?"

"No. I've checked."

The hearing has spluttered through three weeks of such stops and starts, and is likely to continue for at least another three weeks.

Prosecution took the opening fortnight to lay out its charges against Dotcom, Ortmann, Van der Kolk and the fourth executive at Dotcom's Mega empire, Finn Batato. It was a very long fortnight.

Essentially it meant that Christine Gordon QC read out from Agent Postin's greatest hits - a massive document containing the work of FBI agent Michael Postin, who led the investigation against Dotcom and his Mega empire.

A lot of his work involved the detailing of films and TV shows that Mega users illegally downloaded from the Mega site. Gordon faithfully stuck to Postin's script. "Oprah Winfrey," the court was told, "is an American talk show host."

Gordon also read out choice snippets of email chat between the four accused, especially van der Kolk and Ortmann.

Their cheerful comments about piracy were presented as evidence of their alleged conspiracy to commit fraud and engage in copyright violation.

How they chatted, and shot the breeze in all those emails; their exchange suggested a warm friendship. They spoke the same language, shared the same sense of humour.

In court, they look like the same person - short-haired, pink-skinned, they wear seemingly identical black suits and white shirts with no ties. The two Euro-geeks look like some kind of act, a duo.

An out-of-work duo. The defence began its case this week and called the two men to the witness stand.

Mansfield to Ortmann: "What do you do?"

Ortmann: "I'm unemployed."

Mansfield to van der Kolk: "Do you work?"

Van der Kolk: "Not at the moment."

Neither were on the stand for long. The defence was solely occupied with presenting its arguments for a stay of application - to pause or halt the entire proceeding - based on the US refusal to allow Dotcom to release his funds to pay expert witnesses.

They estimate they would cost about $500,000. Without these experts, they argue, the defence is operating with its hands tied.

In cross-examination, prosecutor Mike Ruffin asked Ortmann why he didn't attempt to use his own money to pay for the experts. He said he didn't have the cash.

Ortmann had 21,750 shares in Mega; before the raid on the company, they were worth an estimated $210 million. And now? "There is no market for these shares," he said.

Prosecution took the opening fortnight to lay out its charges against Dotcom, Ortmann, Van der Kolk and Finn Batato. Photo / Jason Oxenham

"No offers." All he had to his name was about $43,000 in his ASB account, after the transfer of 16,000 from a Swiss bank.

Like Ortmann, van der Kolk was paid for his Mega work in shares. He had a parcel of 8700, which he gave to his wife. She sold them last year for US$1 million.

Well, said Ruffin, why didn't he attempt to use his own money to pay for the experts? He said he didn't have the cash ...Where had all the money gone? Oh, he said, on legal bills, various debts, tax, "and a credit agency was chasing me". How much was left? About $100,000.

Dotcom's attorney, Ira Rothken, was also called to the stand. He was born in New York, and now lives in Marin County, California.

A man of east coast and west coast, of sea to shining sea, Rothken is all-American, which is to say he has the not uncommon American characteristic of seemingly being madly in love with the sound of his own voice.

"It would be of great service to the court," said Judge Dawson, with an edge to that dark timbre, "if you just answered the questions with yes or no."

But he couldn't. Rothken was born to preamble. He answered yes or no only after delivering a Gettysburg address. Mansfield objected, too, even though Rothken is on his team. "It's like having to watch a movie to find out what happens in the end," he moaned.

Rothken detailed the kind of expert witnesses needed to defend Dotcom. They included a "technical interface expert", and experts in various points of law. One such expert is running for the US Presidency - Professor Larry Lessig, from Harvard. Lessig volunteered his expert services for free.

But a problem remained.

Court reporter Rob Kidd's droll paraphrasing of Ron Mansfield put it very well in a story that appeared online at the Herald: "His attempts to replace Barack Obama at the helm of the most powerful country in the world might make his appearance before a New Zealand court difficult, Mr Mansfield said."

As well as the issue of expert witnesses, the defence plans to present separate arguments in its bid to obtain a stay of proceedings. All this is even before it begins to rebut the prosecution case.

Farce is never far away in a courtroom, and it banged on the window when a window washer appeared as Rothken took the stand.

The cleansing person, tied to his harness, crashed against the window with his gumboots. He found his balance and then he got out a hose.

Dotcom giggled, Rothken guffawed, a goose let loose a hoot of delight - apologies, Your Honour. But the judge was not amused. He waited until the noise of the water blaster died down. "Proceed," he instructed.

As for the gentleman wearing an array of outrageous outfits, there's a rumour that he has a suit patterned with bananas. The farce, like the threat of extradition, is a work in progress.