The Hon J A Banks v the Crown

Flipper at Kiwiblog posts

CA428/2014. The Hon J A Banks v the Crown.

Has the Crown capitulated?

That question will be answered today just after 10 am when the Court of Appeal sits in the Wellington HC’s courtroom #6.

He asks that because Paul Dacre QC, who has run the Crown’s case, has been replaced by Mike Heron, the Solicitor Genera – details here. We might find out this morning.

Flipper also recaps the case.

To recap, the Crown sent solicitor Rowan Butler to interview Dotcom over the new evidence (from two US businessmen) that Banks would present to the CoA. Banks’ counsel had observed the rules and disclosed that to the Crown.

The interview with Dotcom (in the presence of his then counsel, P Davison) took place on September 29, 2014, and Butler reported to Crown Counsel Dacre in a memorandum, also on September 29. The “Butler Memorandum” introduces a new Dotcom claim – that there were two meetings with Mr and Mrs Banks, one of June 5, 2010 and the other on June 9, 2010. He had earlier asserted that there was only one meeting on June 9. Wylie J, however, found that the lunch was on June 5, as later also attested by the US businessmen.

The crux of the date issue is that both Mr and Mrs Banks were proven to have been elsewhere on June 9, and could not have been at a “second” meeting/luncheon with Dotcom on that date.

Now, understand this: This information was known to the Crown on September 29, 2014. It was not disclosed to Jones/Banks, nor to the Court of Appeal when it heard the case on October 29, 2014 – one month later. In fact the
existence of the Butler memorandum was kept secret by the Crown until finally it was released (received by) to David Jones (Banks) on February 27, 2015.

On March 2, 2015 (the weekend intervened) David Jones filed a memorandum with the High Court requesting a section 347 (discharge) hearing. David Jones then went back to the Court of Appeal because it appears, on the face of evidence now belatedly disclosed by the Crown, that the Court was deliberately misled.

It has been reported that ‘the Court’ was very unhappy.

The Crown seem to be in a very awkward position on this.

It would be ironic if a Graham McCready instigated prosecution is thrown out after an appeal the day before he files for another prosecution, this time against John Key.

Using the courts for political hit jobs seems to be McCready’s aim these days.

Case aimed at bringing down the Government crashes

A private prosecution resulted in John Banks being convicted, and that forced his resignation from Parliament. There seemed significant intent to bring down the Government.

Mixed in with that was Kim Dotcom whose testimony was deemed reliable by the judge and contributed to the guilty verdict.

The case went to the Court of Appeal who overturned the verdict and ordered a re-trial.

The case has now crashed, and the Crown prosecution could get burned – there are claims they deliberately withheld evidence from the Court of Appeal. And there’s also claims there are some very unhappy judges.

NZ Herald reports John Banks retrial: Urgent hearing ordered.

The Court of Appeal has ordered an urgent hearing about whether John Banks should face a retrial on his false electoral return charge following the discovery of evidence which the Crown failed to disclose.

The Court of Appeal quashed the conviction after the “obsessed” detective work of Mr Banks’ wife, Amanda, who was stung by the trial judge’s opinion of her credibility when he preferred Dotcom’s wife Mona’s evidence about a lunch which was crucial to the case.

The Court of Appeal has now ordered a new hearing after Mr Banks’ lawyer David Jones, QC, filed an application to recall its ruling in October after he received fresh material from the Crown about the contentious lunch at the Dotcom mansion.

“If this material had been before the Court of Appeal, which it should have been, it is submitted it would have been a critical factor not only on the substantive appeal but also in the decision whether to order a retrial or not,” Mr Jones wrote in a separate application to the High Court.

In finding Mr Banks guilty, Justice Edwin Wylie said Dotcom was a good witness but was wrong about the date of the lunch and ruled it must have happened on June 5.

But when interviewed by Mr Butler about the new affidavits before the Court of Appeal hearing, Dotcom accepted the evidence of the US businessmen – including that donations were not discussed at the June 5 lunch. Instead, he said there was a second lunch – again on June 9 – at which the donations were discussed.

The interview with Dotcom was never disclosed to Banks’ legal team before the Court of Appeal hearing. The newly disclosed material contradicts all the evidence given at trial by the Dotcom witnesses, wrote Mr Jones.

And more, from ‘Flipper’ at Kiwiblog.

It is seems that Tuesday’s Chambers telephone conference with Justice Fogarty was about procedural matters over the section 347 application – matters that have now been overtaken by the CoA formally advising that it has recalled its earlier decision ordering a retrial.

This follows a request by Banks’ counsel David Jones, and in turn follows the belated disclosure of Dotcom’s invention of yet another luncheon date – a clumsy attempt to circumvent the US evidence that the luncheon took place on June 5, 2010 not June 9 as the Crown/Dotcom had claimed.

In mid-March Flipper posted:
”Flipper hears that there are some very upset people (seriously p****d off is the way one source describes them) at the Court of Appeal, particularly Justices E France, J Wild and F Miller.
Now, understand this: This information was known to the Crown on September 29, 2014. It was not disclosed to Jones/Banks, nor to the Court of Appeal when it heard the case on October 29, 2014 – one month later. In fact the existence of the Butler memorandum was kept secret by the Crown until finally it was released (received by) to David Jones (Banks) on February 27, 2015.
On March 2, 2015 (the weekend intervened) David Jones filed a memorandum with the High Court requesting a section 347 (discharge) hearing. Flipper hears that the Crown has now agreed to this hearing. But that is not all the bad news for the Crown. It is also said that David Jones has gone back to the Court of Appeal because it appears, on the face of evidence now disclosed by the Crown, that the Court was deliberately misled.”

Flipper awaits further whispers and will report ASAP. But the Crowns case and standing in the eyes of the CoA seem to have turned into custard – another major embarrassment for Crown Law.

It sounds very poor from Crown Law – they must be able to be trusted to act correctly and honourably and their credibility here has crashed.

Dotcom may not come out of this looking very good either. Is he just an inaccurate unreliable witness? Or has he deliberately lied to inflict his vindictiveness on Banks?

Some more lawyerly opinions.

Alex Masterly:

Mike Heron might have blown his chance for appointment to the High Court!

Complaints in these matters will be sent to the National Standards Committee in Wellington, chaired by Nigel Hampton QC rather than a branch standards committee.

If the conduct is considered by the National Standards committee to be misconduct, and concealing (as seems to be the case here) material information could be considered to be such especially in the case of appellate litigation.

If a complaint is made then because of the confidentiality provisions in the LCA regarding the conduct of standards committee business the matter will disappear until a decision is made as to whether the conduct complained of is a) not sufficient to be unsatisfactory conduct, b) is unsatisfactory conduct or is c) considered to be misconduct resulting charges being laid in the LCDT.
If it is a or b you might never hear about it. if c you might hear about it in 18-24 months unless the tribunal puts name suppression orders in place as it does from time to time.

Nookin:

1. Dotcom and Mona said that the conversation to which you referred took place at the dinner table during the lunch session.
2. Mona says that she was there and heard it.
3. Dotcom said that that Mona was not there and did not hear it.
4. John Banks says that that the discussion did not take place in those terms and he denies asking for 2 cheques. As I recall, Banks said that he had a private conversation with Dotcom which was inconclusive and, according to Banks, gave him no assurance that any money would be coming let alone $50,000 let alone two payments of $25,000.
5. Banks says that there were a couple of American businessmen at the table. Dotcom says that that there were not a couple of American business people at the table.
6. The judge believed Dotcom but says he was mistaken about the date of the meeting and the presence of Mona.
7. The two American businessmen have surfaced. They say that they were present at the meeting. They heard everything that was discussed. There was no discussion about campaign contributions. This directly contradicts Dotcom’s evidence.
8. The Court of Appeal concluded that if the evidence was produced at the first hearing, it may very well have resulted in a different outcome altogether.
9. The Crown knew that Dotcom had reversed his evidence, accepted that the Americans were present, accepted that there was no campaign discussions at that meeting but has now invented another luncheon meeting a few days later. The date he asserts as the date of the discussion is a day on which Mr Banks established, to the unquestioned satisfaction of the court, that he was campaigning elsewhere and that Mrs Banks, also to the unquestioned satisfaction of the court, was working.
10. Keeping Stock’s theory, and indeed the theory of a considerable number of people, is that the revelations of the American business people raise very serious doubts about the credibility of Mr Com. When you add the undisclosed evidence, you have Mr Com doing a complete about face on his denials about the presence of the American business people and adding an entirely new dimension, namely a second meeting on a date already rejected by the court as untenable. At no stage, over the very prolonged period that this matter has been debated, has anybody ever suggested that there was a second meeting.
11. Which ever way you look at it, the introduction of the new evidence from the Americans, the backdown by Mr Com and what appears to be a complete fabrication in the face of compelling evidence from the Americans do somewhat undermine the veracity of what Mr Com has been saying.

Some, of course, disagree.

Alex Masterly:

Nookin,
Well said.
A fair summary of the essential evidence.
I suspect that the Court of Appeal will not be happy with the late provision of the Barristers report.

Good news for Banks and Dotcom

It seems unlikely the news received by Kim Dotcom and John Banks over the last day or two is about the same thing, but there were coincidental claims of good news for both of them.

From Kiwiblog:

Nostradamus: Are you in a position to update us on how a certain judicial teleconference went yesterday?

Flipper: Yes, the source has delivered, and for Banksie it is good news which I shall post here in the morning.

More on that when Flipper fronts up.

I can’t tell you why (not yet) but today I have received the greatest news. I’m so happy right now. I just want to hug the entire world :-)

I’m not sure the entire world would be willing recipients but I get the drift. But it could be related to this news from Canada:

Kim Dotcom Megaupload case falters over sharing Canadian data

More than three years have passed since Canadian police seized 32 Megaupload servers on behalf of U.S. authorities seeking to prosecute company founder Kim Dotcom in one of the world’s largest copyright infringement cases.

Still, no one — except perhaps officials with the file-sharing company itself — knows what’s on the servers.

At issue now is how much of this seized Canadian data can be shared with the U.S. Department of Justice, which is very eager to press its case against Dotcom, who is currently fighting extradition from New Zealand, where he’s a permanent resident.

In a Toronto court on Monday, Crown attorney Moiz Rahman, acting on behalf of the U.S., recommended bringing in a U.S. “clean team” — an American term for a group of forensic investigators independent of the case — to sift through the 25 terabytes of data on the servers to pick out relevant files and separate them from personal information.

But Megaupload’s lawyer argued that the Ontario court can only ask the U.S. police officials on the so-called clean team to “double pinky promise” that they won’t share information not relevant to the case, since there’s no way to enforce the court’s decision south of the border.

The judge ordered both parties to do a cost comparison between the U.S. clean team versus. hiring Canadian experts before a decision will be made.

So that news seems a legal step on the way amongst many steps for Dotcom, hard to see it as “the greatest news”. Perhaps he’s referring to something else.

More explanation of the Dotcom data at Torrent Freak in MegaUpload Canada Servers Battle Reignites:

When Megaupload was raided in 2012, more than 1,100 servers were seized in the United States. However, an additional 32 were also locked down in Canada, the contents of which still remain a mystery. More than three years on and the U.S. government is again trying to get its hands on this hardware.

One of the oldest issues surrounds the hardware seized as part of the global operation to close down what was once the world’s largest centralized file-sharing operation.

The U.S. Government seized 1,103 servers at Carpathia’s hosting facility in the United States, equipment that is currently gathering dust in a Virginia storage facility. Also at issue is a lesser-discussed batch of servers seized in Canada.

On January 18, 2012, a judge in Ontario issued a warrant to seize the 32 servers located in an Equinix datacenter. As the case continued to build against Megaupload, Kim Dotcom and his associates, the U.S. government asked Canadian authorities to hand the hardware over, claiming that an internal Megaupload email revealed them to be “database / number crunching machines.”

A year later in January 2013, Megaupload protested the handing over of the hardware to U.S. authorities claiming that the servers contained a lot of information irrelevant to the case. Megaupload said an independent forensic examiner could examine the servers and determine their contents before any handover.

An Ontario court sided with Megaupload and refused to send the servers’ data to the United States. Instead, both sides were ordered to find a way to filter out irrelevant content.

Now, more than two years later, the issue of just how much of this seized content can be sent to the United States remains an issue. The matter reappeared before a Toronto court Monday, with fresh ideas on how progression can be made.

The extended court wrangles may eventually save Dotcom from prosecution, but they are also dominating his present and future. And they may prove futile in the end. Three years and counting.

Dotcom claims to have access to bizarre internal SIS communications

Kim Dotcom tweeted on Saturday:

The new SIS spy chief sent me an apology letter because of PERVERSE communications amongst spies about my wife & myself. Disgusting stuff.

One SIS spy suggested my wife be gang raped and after that a female SIS spy suggested to become the next Ms. Dotcom & move into the mansion.

My legal team gained access to internal SIS communications after years of legal wrangling. The contents are absolutely shocking!

If true that is disgraceful – but Dotcom hasn’t got a reliable record of with claims he’s made.

The claim of the ‘SIS spy suggestion’ is bizarre in the extreme. It’s nuts as well as stupid and offensive, even if said as some attempt at a joke. It’s hard to believe that would pass in internal communications and it’s also hard to believe the SIS would release it.

So this needs some sort of evidence to make it credible.

And if this is a Dotcom stunt it’s an extremely bizarre one.

Internet Party to “relieve the family of his threat of extradition”

While much of today’s focus has been on Kim Dotcom tells court he is ‘broke, destitute and penniless’ – his financial situation – there’s some comments amongst the coverage that point to something else of interest.

The High Court in Auckland has also heard that Mona Dotcom was initially hesitant to donate money to the Internet Mana political party, at her husband’s suggestion, but eventually agreed the family trust would give $400,000.

Why?

She believed Dotcom’s claims that his involvement with the Internet Mana party would eventually relieve the family of his threat of extradition, she said.

“At the end I was fine with it because Kim explained to me how this Internet Party would benefit us and the kids because it would help him with his political issues,” she said.

She says the Internet Party was intended to help Dotcom with his “political issues” and “relieve the family of his threat of extradition”.

If I remember correctly Dotcom denied his party was targeting his extradition although that was widely believed to be a significant motive.

UPDATE: Dotcom on The Nation, 30 March 2014:

Dotcom: Well I have to say I was actually quite disappointed when some MPs linked this to my extradition, you know. I think that was very unfortunate because I believe in the New Zealand judicial system, and I wouldn’t accept any minister of justice to overrule what that courts are deciding after, you know a long time evaluating all these legal challenges. So I think that would be wrong, and that’s not why I’m doing this.

So just to be clear, you would be happy for the justice minister to sign the dotted line, you wouldn’t want them to overturn a decision from the courts?

Dotcom: If the courts come to the decision that I should be extradited, well then that’s how it should be.

Dotcom’s response

Kim Dotcom has responded via Twitter to the guilty plea and subsequent sentencing of one of Megaupload’s programmers, Andrus Nõmm – see Mega-admission of Megaupload guilt, rapid sentence for Nomm.

@KimDotcom:

The US Justice system: An innocent coder pleads guilty after 3 years of DOJ abuse, with no end in sight, in order to move on with his life.

I have nothing but compassion and understanding for Andrus Nomm and I hope he will soon be reunited with his son.

The good news: After 3 years the German government is releasing the assets of defendants and my mother will get her car back :-)

“I would sign anything to get out of this mess.”
– Andrus Nomm Source: A witness for the defense.

We are back in court in New Zealand and Hong Kong soon to get funds unfrozen for lawyers so the DOJ can’t force us into fantasy plea deals.

The long legal battle looks set to continue. And also the PR battle:

Top 3 list of safe career choices:

1. Bankster
2. CIA Torturer
3. Racist Police Officer

Source: Department of Justice

And…

Top 3 list of dangerous career choices:

1. Journalist
2. Whistleblower
3. Cloud Storage Provider

Source: Department of Justice

He presumably classifies himself and Megaupload as ‘Cloud Storage Provider ‘.

His problem is that Nomm has admitted guilt to not just providing cloud storage but also to encouraging the uploading and downloading of copyright material, in particular movies and sings.

The name differentiates Dotcom’s business focus from other cloud storage providers.

It wasn’t called Megastorage, it was called Megaupload – with a big emphasis on encouraging uploading and downloading. They offered financial incentives to people who uploaded material that was popular to download.

The big question is whether they knowingly encouraged the upload and download of copyright material or whether they were ignorant of the content that made up a lot of their traffic.

Nomm’s admissions and guilty plea deal will make the defence of ignorance Megadifficult.

Nomm to testify against Dotcom

After giving himself up in the USA, admitting guult and being sentenced – see  Mega-admission of Megaupload guilt, rapid sentence for Nomm – Andrus Nõmm is also set to testify against Kim Dotcom and co-defendants if/when they are extradited.

NZ Herald calls it Blow to Dotcom as co-accused pleads guilty.

Kim Dotcom’s long-running legal battle has suffered a blow after one of his co-accused pleaded guilty – and will now testify against his former colleagues.

In one of the biggest developments since Dotcom’s Coatesville compound was raided three years ago, computer programmer Andrus Nomm pleaded guilty to internet piracy in a Virginia court on Friday.

The 36-year-old struck a plea bargain deal with the US Justice Department, admitting he personally downloaded copyright-infringing files. Nomm will serve a year and a day behind bars.

As part of Nomm’s plea bargain, he agreed his co-accused, including Megaupload founder Dotcom, knew Megaupload.com and other sites the group operated contained copyright-infringing materials and they were making money from it.

Nomm said he brought up copyright infringement to colleagues, noting files he was sent to review for errors had FBI piracy warnings.

Dotcom and his lawyer Ira Rothken are trying to play down this development.

His attorney, Ira Rothken, told the Herald on Sunday the guilty plea did not serve as a precedent.

“If Mr Nomm testifies in a truthful manner … we expect that his testimony will help the defence.

“It’s a plea bargain of convenience and the Department of Justice seems to have used this as a Hollywood-style publicity stunt to try to elevate the status of their case.”

But it’s also a plea-bargain of significant inconvenience to Dotcom’s defence. It may also put pressure on other defendants.

Mega-admission of Megaupload guilt, rapid sentence for Nomm

After surrendering to the US authiortities in Virginia last week – see A plea deal against Dotcom? – ex-Megaupload programmer Andrus Nõmm has pleased guilty and been sentenced to a year and a day in prison.

This isn’t a good sign for Kim Dotcom and the other accused who are still fighting extradition.

Ars Technica reports: Megaupload programmer pleads guilty, sentenced to a year in prison

Andrus Nõmm “was aware that copyright-infringing content was stored” on-site.

Federal prosecutors have achieved their first guilty plea and prison sentence in the Megaupload criminal case that has dragged on for over three years.

Andrus Nõmm—who was arrested this week in Virginia after years of fighting extradition in the Netherlands—pleaded guilty to felony copyright infringement. He was sentenced to a year and a day in federal prison, according to a press release issued by the Department of Justice on Friday.

American criminal charges against the six co-defendants related to Megaupload, including Kim Dotcom, still remain pending. All of the Megaupload defendants (most notably founder Kim Dotcom) have been battling extradition and fighting the government’s case from outside US borders. (Ars profiled Dotcom’s extradition efforts last month.)

Prosecutors also added that Nõmm “agreed to waive his extradition hearing in the Netherlands, where he was arrested in January 2012, and plead guilty in the United States.”

And Nomm has agreed with prosecutirs that he knew that Megaupload were knowingly flaunting copyright. The Department of Justice press release details:

In court papers, Nomm agreed that the harm caused to copyright holders by the Mega Conspiracy’s criminal conduct exceeded $400 million. He further acknowledged that the group obtained at least $175 million in proceeds through their conduct.

Megaupload.com had claimed that, at one time, it accounted for four percent of total Internet traffic, having more than one billion total visits, 150 million registered users and 50 million daily visitors.

In a statement of facts filed with his plea agreement, Nomm admitted that he was a computer programmer who worked for the Mega Conspiracy from 2007 until his arrest in January 2012.

Nomm further admitted that, through his work as a computer programmer, he was aware that copyright-infringing content was stored on the websites, including copyright protected motion pictures and television programs, some of which contained the “FBI Anti-Piracy” warning.

Nomm also admitted that he personally downloaded copyright-infringing files from the Mega websites. Despite his knowledge in this regard, Nomm continued to participate in the Mega Conspiracy.

Even a year in prison for someone not previously acquainted with criminal processes is a major penalty, but if Dotcom is extradited and charged and found guilty he coukld expect a heftier sentence.

It can be guessed that Nomm has plea bargained to reduce his sentence, probably in return for hammering the bigger fish.

A plea deal against Dotcom?

An interesting development in Kim Dotcom related legal issues – a co-accused appears to have given up fighting extradition and voluntarily gone to Virginia to be arrested. Stuff reports in Ex-MegaUpload exec arrested in US

News agency AP reported that Estonian software programmer Andrus Nomm, who was described in a US indictment in 2012 as the head of MegaUpload’s software development division, had been arrested by US police in Alexandria, Virginia, yesterday.

Nomm was originally arrested by Dutch police in Rotterdam days after New Zealand police raided Dotcom’s rented Coatesville mansion in 2012.

He had been fighting extradition to the US and initial reports did not make clear whether he had travelled to Virginia voluntarily, sparking speculation of a possible plea bargain.

The charges against him include copyright infringement and conspiracy to commit racketeering.

Nomm had his own counsel and was hardly mentioned in the original US grand jury indictment of Dotcom and his co-accused, he said.

Nomm could be just trying to front up and get things over with. He would be have been severly restricted in what he could do and where he could travel.

Or he could be also be helping investigators with their inquiries.

More detail from The daily Courier (Canada) – Estonian man indicted in Megaupload case 1st to face charges in US

U.S. District Court records indicate that Andrus Nomm was arrested Monday in Alexandria, Virginia, where he is one of seven men indicted three years ago in the Megaupload case. He was initially arrested in the Netherlands in 2012 and had been fighting extradition.

A transfer to the U.S. under these circumstances can sometimes indicate that a plea deal has been struck, but there was no indication of that in court records. A spokesman for the U.S. attorney’s office had no immediate comment.

Nomm is the first of the seven to be brought to the U.S. to face charges. Megaupload’s founder, Kim Dotcom, has been fighting extradition from New Zealand since 2012, publically criticizing the case against him and mocking prosecutors as Hollywood lackeys for shutting down his site under pressure from the film industry.

Nomm’s public profile does not match that of the flamboyant Dotcom or some of the others charged in the Megaupload case. The indictment describes him as a programmer and head of Megaupload’s software development division. It says he was paid more than $100,000 by Megaupload in 2010. The charges against him include copyright infringement and conspiracy to commit racketeering.

The indictment says Nomm is an Estonian citizen but a resident of both Estonia and Turkey.

Three years since Dotcom raid

It’s been three years since the raid on Kim Dotcom on 20 January 2012.

Ars Technica marks the date and summarises progress (or lack therof):

Why Kim Dotcom hasn’t been extradited 3 years after the US smashed Megaupload

On January 20, 2012, New Zealand authorities raided Dotcom’s mansion, complete with two helicopters, as part of the American-led global shutdown of his Hong Kong-based file sharing company.

An extradition hearing is set for June 2015. Based on history, don’t hold your breath.

It’s not a bad summary but curiously they don’t say much about Dotcom’s lawyers quitting the case late last year.

Wikipedia’s summary of the Megaupload legal case

And going back into Dotcom’s past: Die Welt on Kim Schmitz/Dotcom

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