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.

Leave a comment

6 Comments

  1. Goebbels

     /  16th April 2015

    KDC’s latest tweet in rebuttal –

    ‘John Banks defense strategy: Mix up a meeting about a new Internet cable for NZ with a completely separate meeting about anonymous donation’

    Reply
  2. kittycatkin

     /  16th April 2015

    KDC is rapidly losing touch with reality.

    I don’t know John Banks, though I have met him, but everything I have heard about him makes me think that he is one of these people who’s so honest that he’s annoying-not that I am dishonest, but he’s someone who would never bend the rules in any way, unlike the rest of us.

    Reply
    • Missy

       /  16th April 2015

      I have heard the same about him Kittycatkin. Actually, when this all started I heard an interview on the radio with a former associate of KDC’s, this former associate said that KDC had asked him to offer all sorts of expensive & luxury accommodation and travel to John Banks during a holiday in Hong Kong, and Banks turned it all down saying he was happy with what he had. According to the associate KDC was very angry about that, and he said KDC was definitely the type of person to expect payback for favours he did, and would hold a grudge. All hearsay, but if even a small bit of it is true then it does make a person want to question what KDC is up to.

      I know who I find most credible out of Banks and KDC, and it isn’t the German! (and I am not exactly a Banks fan).

      Reply
    • duperez

       /  16th April 2015

      Maybe he’s honest but like John Key simply has a poor memory.

      The affliction of being “so honest that he’s annoying” gave rise to some of his worst moments to do with DotCom. He is someone I have heard talk about the importance of telling the truth.

      I saw him on tv having a crisis of confidence and conscience. He was asked some questions which in the circumstances he could not evade and “play politician”, give the Steven Joyce answer, smile, brush it off and carry on about something else. The answers formed in his brain, made their way to his throat and tongue and struggled to get out – they weren’t used to dealing with ‘not the truth.’
      The words stuttered and stumbled their way out and the die was cast. The oh-so-confident one, always so certain, would normally have not answered at all or insisted, “I have no comment.” The possum was in the headlights and while the moments moved on, the sound of the squashing was there.

      For all the bluster, all of the assuredness and all of the facets of the career, he had got himself to that terrible state. The stuff about the DotCom cheques? As irrelevant, as incredible, as anything could be. Now there is just the utter desperation to try to retrieve some honour, not to prove being honourable to the fans but to himself. The boat has left the wharf and there is this final fling, jumping to see if he can get back on board.

      Reply
  3. Alan Wilkinson

     /  16th April 2015

    Banks will have a claim for serious damages against Dotcom if his lies led to a false conviction, and against the Crown for covering up on appeal.

    Reply
  4. Mike C

     /  17th April 2015

    @George. After reading your above post, I’ve been left wondering if DotCom bribed one or more Crown Solicitors.

    Reply

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