Wednesday, February 22, 2012

The Dotcom bail decision II

Kim Dotcom has finally been granted bail. While the full decision doesn't seem to be available, the Herald has the reasoning:

The prosecution had argued that because Dotcom was "a wealthy man" he must have significant resources available to him and would be able to fund an escape from New Zealand.

However, a North Shore District Court Judge Nevin Dawson has found that there had been no new significant asset seizures since his mansion was raided and he was arrested.

"The disposition that he is wealthy and must have more assets is not evidence.

"It would seem that he has every reason to stay (in New Zealand) to be with his family and to fight to keep his significant assets," Judge Dawson said.

In other words, the police's secret flight fantasies aren't enough. There must be a real and substantial risk to justify continued pre-trial imprisonment. Absent such a risk, he must be released. It is that simple.

Unfortunately, a condition of bail is that Dotcom not use the internet, effectively denying him quick and easy access to his overseas lawyers and impeding his defence. While the (elderly) judge would no doubt say that he could use telephone and post, to modern eyes that's like telling someone they can use carrier pigeons. The Bill of Rights Act requires release on "reasonable" terms and conditions - and in the modern era, banning people from using the fastest, most efficient and pervasive communication mechanism is simply no longer reasonable. Unfortunately, we'll probably have to wait for a generation of pre-internet dinosaur judges to die or retire for our legal system to recognise that.