Expanded protection for politicians?

Vernon Small thinks that The Hagaman-Little defamation case looks to have expanded protection for politicans

…without a lot of fanfare this week the rights of politicians to speak out without forking out on defamation claims seem to have been extended.

Of course, MPs already have that protection when speaking in the House under parliamentary privilege.

But their qualified privilege, beyond the confines of parliamentary debate, appears to have been broadened in a significant way – pending an appeal – with the release of Karen Clark’s considered judgment in relation to the defamation case between business couple Earl and Lani Hagaman and Labour leader Andrew Little.

As was widely reported, the jury found in Little’s favour in respect of Lani Hagaman’s claims.

In the case of Earl Hagaman’s claims it found by a majority that in one of the six causes of action Little had defamed him, but the jury could not agree whether he had lost the protection of qualified privilege.

The jury could also not agree whether Little had defamed Hagaman on four of the other five claims.

What is interesting about Clark’s judgment – and what is likely to spark a forensic analysis by politicians and those who deal with them – is her explanation of her ruling on qualified privilege including an acknowledgement that she may have expanded the common law privilege.

(Though she notes that is “matched” by the check on misuse in the Defamation Act, which stipulates that a defence of qualified privilege fails if publication was “predominantly motivated by ill will towards the plaintiff, or otherwise took improper advantage of the occasion of publication”.)

I would expect that “predominantly motivated by ill will” could be difficult to prove on the balance of probabilities.

It may never be tested in court but could ‘ill political will’ be considered sufficient?

Whether the Hagaman case leads to a significant extension of the protections for politicians – and an erosion of individuals’ opportunity to win defamation actions against them – remains to be seen.

These cases are always determined on the facts. As much as there is a precedent being set here, the core of Clark’s judgment applies specifically to the Leader of the Opposition and the constitutional requirements on that office-holder.

So it is quite a narrow application of the law.

Little established his duty to make the comments “to an audience who had an interest in receiving those communications” and that it was in the public interest that his freedom of expression should prevail “over protection of reputation”.

But will we in future see attempts to extend Clark’s logic beyond the Opposition Leader, perhaps to those spokespeople with delegated roles, or even at a longer stretch to MPs generally?

The Court of Appeal’s view will be well worth watching.

Yes it will, if it happens. If Earl Hagaman dies first we may never have this ruled on by the Court of Appeal.

Life Without Parole appeal

Last week the Court of Appeal ruled against the Crown in two cases involving the 3 strikes legislation.

Court of Appeal Judgment R v Harrison and R v Turner

The Court of Appeal media release aimed at assisting understanding of the judgment:


R v SHANE PIERRE HARRISON (CA691/2014)

R v JUSTIN VANCE TURNER (CA114/2015) [2016]

PRESS SUMMARY

This summary is provided to assist in the understanding of the Court’s judgment. It does not comprise part of the reasons for that judgment. The full judgment with reasons is the only authoritative document.

The Court of Appeal has today dismissed the Solicitor-General’s appeal against sentence in the case of Shane Harrison but allowed the appeal against sentence in the case of Justin Turner in part, increasing the minimum period of imprisonment of his life sentence to 17 years.

These appeals were the first to challenge the application of s 86E of the Sentencing Act 2002, part of the so-called “three strikes” legislation. Section 86E requires a person convicted of murder after committing a “serious violent offence” (a “stage-1 offence”) to be sentenced to life imprisonment without parole, unless that would be manifestly unjust. In the High Court the sentencing judges, Mallon and Woolford JJ respectively, found it would be manifestly unjust to sentence Mr Harrison and Mr Turner to a whole of life sentence. A Full Court of the Court of Appeal has agreed with this conclusion.

The crux of the appeals turned on the meaning of “manifestly unjust”. The Solicitor-General contended that manifest injustice would be established in rare and exceptional circumstances only such that the exception was a very narrow one. Section 86E created a statutory presumption that there should be a higher level of punishment for repeat violent offenders, irrespective of their actual culpability. This was the basic rationale behind the three-strikes regime. The Solicitor-General accepted that the manifestly unjust exception involved a 2 judicial discretion to ensure that the presumption in s 86E did not infringe s 9 of the New Zealand Bill of Rights Act 1990 — the right not to be subjected to disproportionately severe treatment or punishment.

The Court of Appeal considered the likelihood of grossly disproportionate sentences arising from the application of s 86E to be high. A key reason included the breadth of the qualifying catchment, namely a previous conviction for a “serious violent offence”. The offences within that definition number 40 and are extremely wide-ranging, producing an infinite range of circumstances of offending.

The consequences of the application of a whole of life sentence also contributed to the potential for gross disproportionality. Such a sentence provides no opportunity for review. For a sample of actual murder cases from 2009–2010, the length of time spent in prison, on average, was calculated to be upwards of 35 years, significantly longer than an offender sentenced for murder would usually serve.

Given the high likelihood of a sentence imposed under s 86E being grossly disproportionate, the Court concluded that the meaning of “manifestly unjust” must be interpreted broadly. Its application requires an intensely factual consideration of the circumstances of the offending and the offender, including: the sentence that would otherwise be appropriate for this offending, the consequences of a whole of life sentence, the actual culpability of the offending and the risk posed by the offender. Ultimately, the judicial approach to the scope of the manifestly unjust exception is intended to avoid wholly disproportionate sentencing outcomes.

Applying this approach to Mr Harrison’s and Mr Turner’s cases, the Court agreed it would be manifestly unjust to impose a sentence of life imprisonment without parole in each case. For Mr Harrison, the Court agreed with Mallon J that the low culpability of Mr Harrison’s stage-1 offence, together with his attempts to rehabilitate, his age and the views of the victim’s family, would have made a whole of life sentence grossly disproportionate. The Court also noted that Mr Harrison was only a secondary party to the murder.

In Mr Turner’s case, the Court concluded that although the circumstances of his offending were brutal, his age, guilty plea and mental health difficulties culminated to make a whole of life sentence grossly disproportionate. However, the Court agreed with the Solicitor-General that the appropriate minimum period of imprisonment was 17 years rather than 15 years as imposed by Woolford J.

Mr Harrison and Mr Turner also sought a declaration of inconsistency with the Bill of Rights Act, contending both s 9 and s 22 were breached by s 86E of the Sentencing Act. The Court declined such a declaration on the basis that a rights-consistent interpretation of s 86E was possible. The Court noted, however, that if the manifestly unjust safeguard did not operate to prevent gross disproportionality, this could be addressed at a later time.


As an ACT MP David Garrett was the driving force behind the 3 strikes legislation. He responds to this decision in detail in a guest post at Kiwiblog: Guest Post: Appeal Court refuses to apply LWOP

 

Court of Appeal versus Corbyn

It’s hard to keep up with the swings in legal action involving the UK Labour Party and their fractious leadership contest.

Guardian: Corbyn’s team incensed as new members denied Labour vote again

Jeremy Corbyn’s leadership campaign suffered a setback on Thursday after an unexpected Court of Appeal victory for the party’s ruling body that will bar thousands of the leader’s supporters from voting.

Angry recriminations from Corbyn’s team followed the court’s decision, which will mean about 130,000 new members who joined less than six months ago will not be able to vote in the forthcoming poll between Corbyn and Owen Smith for the Labour leadership.

Corbyn’s campaign team openly attacked both the court of appeal judges and the party’s HQ for fighting the appeal, castigating the decision as wrong “both legally and democratically.” Shadow chancellor, John McDonnell, said lawyers had used “a grubby little device” to win the appeal.

But Paddy Lillis, chair of the Labour NEC, insisted the party had a right to defend its processes.

The ruling comes at the end of a stormy week for the party, with relations collapsing between Corbyn and his deputy Tom Watson after a public spat over the latter’s claims in the Guardian that the party was at risk of “Trotskyist entryists”. That was dismissed by Corbyn and then repeated by Watson who produced a document of far-left activists now involved in the party. The two leadership rivals, Corbyn and Smith, also clashed at a bitter hustings in Gateshead on Thursday, with Smith saying he would refuse to serve in a future shadow cabinet under Corbyn should his rival win the election.

On Friday there had been expectations the appeal by the NEC would most likely be rejected by the court

About the only good thing going for Labour at the moment is there won’t probably be an election for a few years.

What a mess.

Slater’s response to Court of Appeal judgment

Cameron Slater has responded to Thursday’s Court of Appeal judgment on ongoing proceedings in Matthew Blomfield’s defamation case against Slater.

It’s notable that this wasn’t in a post, it was in the General Debate thread:

Just for the record people. There are two news stories and some excited tumbleweed blogs who think that I lost an appeal yesterday.

I didn’t.

I made an application to Court of Appeal to introduce new evidence that has come to light.

Unfortunately the Court of Appeal declined to allow me to introduce the new evidence. It seems it doesn’t matter to them that the High Court was misled or witnesses are being intimidated. Just another challenge and hurdle for me to overcome.

The Appeal is still live before the Court of Appeal and sometime next year it will be heard. Don’t believe everything you read in news reports or on tumbleweed blogs.

That is like if England had claimed they didn’t win this year’s world cup (and had also been beaten by Fiji and Uruguay).

The Court of Appeal ruled that the evidence was either not new, not shown to be new by Slater, or could have been obtained in time for the High Court Trial so was deemed not new.

Tumbleweeds are survivors in harsh conditions.

Greg M responded to Slater’s comment:

Saw that, unbelievable. The next time the IPCA comes out with a finding does this mean we can now all ignore it as “hearsay” ? 
The only good thing to come out of it is that now you know how ridiculously high the hurdles has been set.

Cam Slater:

Yeah astonishing…an IPCA report, and Police records are now hearsay.

On the hearsay from the IPCA report and Police records:

[26] Next, Mr Slater referred to intimidatory acts against Mr Price. He alleges at para 14 of his affidavit that he holds “contemporaneous emails” (unspecified as to date) relating that Mr Price was threatened with being “done over” by Mr Blomfield’s “gang associates”. He refers to Mr Price stating that he believes that Mr Blomfield is a psychopath, and also asserts that Mr Price related to another person that he (Mr Price) had been unlawfully detained and then assaulted by Mr Blomfield. These allegations are backed up by a police report mentioning that Mr Blomfield had coerced Mr Price into swearing an affidavit by “threats of being sued for defamation”. This evidence is all hearsay, and inadmissible.

If the Police report quoted something someone had said then I presume that’s hearsay.

[38] Mr Slater now seeks to adduce evidence in the form of police reports showing that the question of whether the information had been stolen has been investigated by the police who have reached the view that there was insufficient evidence of criminal conduct “on the part of the appellant or any source or alleged source”. The reports attached to Mr Slater’s affidavit have dates between January and May 2013. Mr Slater has made no attempt to explain why he could not have obtained this information earlier and in time to adduce it at the trial. He would have been aware from the statement of claim that Mr Blomfield complained that the material was taken from him unlawfully, and asserted that it contained a large number of “copyrighted, privileged and confidential items belonging to the plaintiff, his clients and his family”. The evidence on which he now seeks to rely could have been called in the High Court, but Mr Slater chose not to do so. It is not fresh.

[39] The material is in any event hearsay and inadmissible for that reason. The same applies in relation to a letter of the Independent Police Conduct Authority dated 13 June 2014. Mr Slater seeks to rely on that letter for its statement that the police investigation had found the missing hard drive “to have never been stolen”. He says that he endeavoured to produce the letter in the High Court “from the bar” but it was successfully opposed. Again, it is a hearsay statement which ought not to be admitted at this point.

Can anyone with legal and court knowledge explain whether the police reports and IPCA letter are correctly classified as hearsay by the Court of Appeal judges?

The full judgment:

UPDATE: Hearsay evidence

An important part of our legal system is that any witnesses (with some defined exceptions, notasbly that the witness is now dead) giving evidence should present it in court so they are able to be cross examined.

Hearsay evidence is covered by sections 16-22 of the Evidence Act 2006. Pursuant to s 4(1) of the Act, a hearsay statement is a statement made by someone other than a witness (in the proceedings) that is offered to prove the truth of its contents. Under section 17 of this Act a hearsay statement is generally not admissible in any court proceeding. Though section 18 states when a hearsay statement may be able to be given in court. This is when the statement is reliable, the statement maker is unavailable to be called as a witness or it would provide undue expense and delay if that person was required to be a witness. There are also a number of specific exceptions such as statements in business records. Other exceptions include state of mind evidence (see R v Blastland) and whether the statement is tendered to prove the fact it was uttered or made, rather than to prove the truth of its contents (see DPP v Subramaniam).

It is covered in the Evidence Act 2006:

Part 2
Admissibility rules, privilege, and confidentiality

Subpart 1Hearsay evidence

Slater and his legal advisers might benefit from reading and understanding that (I have and will).

Court of Appeal: the Slater A = Z strategy

Yesterday a Court of Appeal judgment released regarding Cameron Slater versus Matthew Blomfield made several rulings against Slater.

It suggests that Slater’s legal abilities seem to be on a par with his boxing abilities – he has talked himself up but looks totally out of his depth.

SlaterBoxingFloored

One of  the judgments illustrates the Slater A = Z strategy, where evidence supplied suggests one thing but Slater claims the opposite.

Dermot Nottingham, an ‘associate’ of Slater on Blomfield’s defamation action against him, secretly recorded a phone conversation between a Mr Mattu and Blomfield.

In the conversation Blomfield tells Mr Mattu he wishes him well and doesn’t want to be mean to him, and wants to stay as far away from Mr Mattu and those he was association with. Slater claimed in the Court of appeal that this amounted to threats.

[32] Mr Mattu also gives evidence in the second affidavit that Mr Blomfield had threatened him over the phone, in person and in front of Mr Hare, and told him that “his brothers are connected to the gangs”. Later in the affidavit, he refers to his relationship with Mr Slater, recording his understanding that Mr Slater and his team are gathering evidence to bring Mr Blomfield, Mr Hare, Mr Johnson and Mr Sherriff to justice. Mr Mattu says he is “doing the same”.

[33] In his submissions, the main emphasis Mr Slater gave this second affidavit related to the fact that Mr Blomfield had telephoned Mr Mattu on Monday 5 October 2015. Mr Mattu recognised the caller’s number as that of Mr Blomfield and decided not to take the call. Instead, he telephoned Mr Slater to seek his advice. Mr Slater was unavailable, but an associate, Mr Nottingham, advised him to take the next call from Mr Blomfield and to record it. It was then arranged that instead Mr Mattu would telephone Mr Blomfield while Mr Nottingham remained on the line and both would record what was said. That then ensued, the discussion lasting for some 26 minutes. A little over an hour later, Mr Mattu again telephoned Mr Blomfield while Mr Nottingham was on the line. This time, the conversation lasted a little under four minutes.

[34] Transcripts of the discussion were then drawn up and attached to Mr Mattu’s affidavit. The presiding Judge in this Court asked Mr Slater to identify the parts of the transcripts of the phone discussions which were of most concern. Mr Slater referred to the following passages attributed to Mr Blomfield:

(a) Your affidavit wasn’t even written by you Shiv. I, the affidavit … I’ve matched it up with the previous stuff that [Mr Slater] and [Mr Nottingham] have written. Those guys wrote this affidavit for you, and what’s going to happen when you have to stand up in Court, and the first question the lawyer’s going to ask you when they cross-examine you is “Who wrote this affidavit?”

(b) But what you’ve gone and done with these boys, and getting involved with them, I wanted to ring you and make it clear to you that I have no issue with you, and I wish you all the best, and I’m sorry for what happened. But I’m not going to talk to you again, and I’m not going to have anything to do with any of this, for as long as I possibly can. If I’m forced to be involved, I’ll be involved, but I want to stay right away from this, the people you’re involved with, everything to do with it. I’m going to stay as far away as …

(c) As far as I’m concerned, you’ve gone and partnered up with the devil, and you’re asking me … I want to stay as far away from you and these people as possible. All I wanted to do was make it clear to you that I am not going to do anything mean to you. I feel sorry for you for what’s happened, and I’m sorry that things haven’t turned out.

It’s worth repeating that this was presented  as evidence of most concern,  the Court “asked Mr Slater to identify the parts of the transcripts of the phone discussions which were of most concern”.

[35] Mr Slater invited us to infer from the language used that these comments by Mr Blomfield were in fact veiled threats, that the observations were intimidatory and effectively asking Mr Mattu not to stand by his affidavit. We are not prepared to draw those inferences. As Mr Miles QC pointed out, Mr Mattu’s claims of intimidation have not prevented him from swearing detailed and damaging affidavits, including a claim that Mr Blomfield, together with Messrs Hare, Johnson and Sherriff are “members of an organised and sophisticated criminal gang”. Mr Mattu has also provided details of his address and place of work in the affidavits. It seems that, even if he is concerned, Mr Mattu has not been deterred from making serious allegations against Mr Blomfield by anything Mr Blomfield has said or done.

[36] We do not consider any of this evidence cogent in relation to the relevant findings made by Asher J.

The presiding Judge in this Court asked Mr Slater to identify the parts of the transcripts of the phone discussions which were of most concern

A dictionary definition of cogent: convincing or believable by virtue of forcible, clear, or incisive presentation; telling. 2. to the point; relevant; pertinent.

Another related practice is to make claims withoput providing supporting evidence:

[30] We do not regard this evidence as cogent. While Mr Mattu says he is fearful, he gives no evidence of any direct or particular threat of physical violence…

Accusations without evidence. Accusations with evidence that suggests the opposite.

And I don’t think this is uncommon from Slater and his associates. I’ve seen other examples, for example Lauda Finem posts are riddled with accusations without evidence. There’s been examples in comment threads here on Your NZ. I have also seen examples in emails involving associates of Slater. And in other court documents, which other judges have stated as being mostly inadmissible evidence.

The above examples are as presented by Slater to the Court of Appeal.

One could wonder whether Slater uses the same level of backing claims and accusations that he makes outside a court of law, for example in Whale Oil posts.

Readers can make their own judgment on that.

And you can read the full judgment for yourself:

I should point out here that over the last year or so a number of claims have been made about Matthew Blomfield on Your NZ, not dissimilar to what has been raised in this Court of Appeal judgment.

I believe that some people have genuinely believed what they have stated, because they have believed claims posted and made by Slater,  [Deleted as per court order] and associates.

Others have been trying to disseminate A = Z type claims in what has appeared to be a malicious manner, mostly [Deleted as per court order] (please don’t assume that of everyone who has attacked Blomfield).

The number of people believing Slater, [Deleted as per court order] and associates should be dwindling after judgments like this one made by the court of appeal.

Sorry Slater supporters, he has duped a lot of people into believing him, including John Key, but the more sunlight, the more we can see the reality. And I believe the unraveling is far from over.

Slater loses in Court of Appeal

Cameron Slater has failed in a Court of Appeal bid to overturn a High Court ruling that he didn’t have journalist protection from revealing his sources.

NZ Herald reports: Slater’s ‘journalist’ protection fails

An attempt by the blogger Cameron Slater to use a journalist’s legal protection for sources has failed.

The case came after the High Court told the Whaleoil blogger he qualified as a “journalist” but couldn’t hide sources for a series of blog posts about a businessman using a journalist’s legal protection because of the nature of the posts.

The case involves defamation proceedings taken by business Matthew Blomfield over blog posts made by Slater in 2012. High Court Justice Raynor Asher had ruled there was a “public interest” in the sources being identified as there was no public interest in coverage of Blomfield’s affairs and because of the “extreme and vindictive” nature of the disclosures. He also found the claim for journalistic source protection weakened because “the documents disclosed by the sources appeared to have been obtained illegitimately”.

The Court of Appeal has now rejected arguments by Slater that new evidence should overturn Justice Asher’s ruling and allow him to engage source protection rules for journalists in the Evidence Act.

Fail #1

While some of Slater’s new evidence was ruled out as hearsay…

Sounds familiar.

…the judges heard other evidence including that of a phone call made to Blomfield by a former business association who was now known to Slater.

A transcript of the phonecall had been produced by Slater, saying it showed “veiled threats” from Blomfield. When the appeal judges asked for examples, Slater selected a sample including one comment in which Blomfield was quoted saying: “All I wanted to do was make it clear to you that I am not going to do anything mean to you.” The Court of Appeal judges said they did not believe the comments were threatening.

Fail #2

This also sounds familiar, claiming the opposite of what was said.

The judgment revealed the phone conversation had been made by Blomfield’s former business colleague to Blomfield, and recorded without his knowledge by self-styled justice campaigner Dermot Nottingham, an “associate” of Slater.

I wonder what sort of  ‘associate’.

The judges also dismissed Slater’s claim Blomfield had acted in an intimidating way against one of those believed to have supplied information for the blog posts. The judgment said Blomfield had successfully sought the restraining order against a businessman  over a series of “aggressive and abusive” text messages he had been sent.

Fail #3

Claiming he “had acted in an intimidating way” but the opposite being found to have occurred also sounds familiar.

Slater said Blomfield seeking a restraining order on text messages which pre-dated Justice Asher’s decision was contrary to an assurance Blomfield had given saying “no witness was at risk”. The appeal judges dismissed the claim as unconvincing.

Fail #4

On the issue of the hard drive, Slater had attempted to put into evidence a letter from the Independent Police Conduct Authority which stated the hard drive had been found “to have never been stolen” The judges ruled it as inadmissible hearsay.

Fail#5

Slater was ordered to pay Blomfield costs.

Expect another begging post at Whale Oil? That would be contrary to a claim by Slater in another recent ruling detailed here where a judge said:

[49] I have no affidavit evidence of Mr Slater’s personal circumstances. The tenor of Mr Blomfield’s submissions is that he has backers and has access to funds. Mr Slater claimed that he had no backers and was self funded.

That’s a bit awkward.

Slater should consider getting better legal advice.

UPDATE: the judgement is now included underneath the Herald article
Slater’s ‘journalist’ protection fails

UPDATE 2: The judgment has now been posted:

Dotcom extradition hearing to go ahead

It is over three years since the raid on Kim Dotcom’s residence in January 2012 and his arrest. Since then there has been a long running legal battle with many delays.

Today the Court of Appeal rejected Dotcom’s latest arguments and ruled that the extradition hearing will go ahead, starting next Monday 21 September.

NZ Herald reports:

Kim Dotcom extradition hearing to go ahead September 21 after latest arguments rejected

Kim Dotcom and his former Megaupload colleagues have lost their latest battle in the fight against extradition to the United States.

An extradition hearing will go ahead as planned in North Shore District Court next Monday, after the Court of Appeal rejected the latest arguments from Dotcom and three co-accused.

Dotcom joined chief technological officer Mathias Ortmann, computer programmer Bram Van Der Kolk, and fellow Megaupload alumnus Finn Batato in applying to stay the extradition proceedings.

The four men claimed there had been abuse of process and that the US had blocked their proper defence of the extradition application.

Batato, Ortmann and Van Der Kolk applied to the Court of Appeal on August 7 and Dotcom did so a fortnight later.

A half-day hearing was set down for last Tuesday but the hearing took longer than expected and the Court of Appeal reserved its judgment for a few days.

The Court of Appeal judges said the appellants’ submissions regarding technical evidence were “vague” and failed to explain how evidence of cloud storage industry practice affected their eligibility for extradition.

The court also said it did not have the resources “urgently to resolve a dispute which was not straightforward and involves fundamental disagreement between the parties”.

For three reasons, the Court of Appeal decided to reject the appeal.

First, the judges said the district court had been managing the issue appropriately and in line with the extradition treaty.

Second, the court said it had to be careful about “interfering” in district court pre-hearings.

“Micro-management of pre-trial procedure by higher courts risks delaying and fragmenting the criminal process,” the Court of Appeal said.

Third, the Court of Appeal said it was satisfied going ahead with the stay application and extradition hearing together on September 21 would not deprive the appellants of adequate remedies.

The Court of Appeal said if a district court judge decided the US had deprived the appellants of American expertise they needed, then “inevitably” that judge would have to adjourn the extradition hearing.

The appeals were dismissed and the appellants were ordered to pay the US’s costs.

So the next step in trying to extradite Dotcom and co takes a significant step forward next week but expect a log battle still.

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.

Amanda Banks succeeds in John’s appeal

The conviction against John Banks for filing an incorrect electoral return has been overturned by the court of appeal, largely due to the efforts of his wife Amanda to clear her own name.

NZ Herald reported Wife clears Banks’ name:

The Court of Appeal yesterday overturned former Act leader Mr Banks’ conviction for filing a false electoral return, charges which ended his parliamentary career.

A jubilant Mr Banks paid tribute to his wife who he said had been a hero for her part in clearing his name.

Amanda Banks’ “obsessive” detective work saw her husband John Banks’ electoral fraud conviction quashed yesterday and answered a High Court judge’s doubts over her honesty.

Mr Banks was convicted in the High Court this year after failing to disclose donations from Kim Dotcom to his Auckland Mayoralty campaign in 2010.

Crucially, the High Court’s Justice Edwin Wylie believed testimony given by Dotcom’s wife Mona over that of Mrs Banks about what was said at a lunch where both were present and at which Dotcom said donations were discussed.

Mr Banks’ appeal introduced affidavits from two US-based businessmen who he says were at that lunch. The pair – David Schaeffer and Jeffrey Karnes – both said donations were not discussed at that lunch.

The Court of Appeal’s Justices Ellen France, John Wild and Forrest Miller said that if the new evidence had been accepted in the High Court trial “it likely would have changed the outcome”. The Court of Appeal’s decision notes that Mrs Banks “was stung by the judge’s opinion of her reliability”.

“She became quite obsessed, as she puts it, with identifying the two Americans.

“She recalled that a transpacific communications cable had been discussed at the lunch and scoured news articles on the topic, eventually finding one which mentioned that Mr Dotcom had endorsed such a project and was trying to organise a group of investors to fund it.”

Mrs Banks’ research also identified the second businessman and Mr Banks’ lawyers contacted the two men and secured sworn affidavits from them.

The trial has taken a heavy toll on Banks – it wrecked is political career – and on both John and Amanda who say the pressure contributed significantly to their marriage breaking up.

The Court of Appeal has ordered a new trial – but say the new evidence would likely have overturned the outcome of the case.

The original trial judge put the credibility of Dotcom and his wife Mona ahead of the credibility of the Banks and this seems to be a major factor behind him finding Banks guilty – apparently incorrect or false claims swung the trial and the judge guessed incorrectly who wasn’t telling the truth.

A re-trial would add further hardship to Banks but he may think it could be worth it if it further clears his and his wife’s names.

This has been a major legal wrangle over the often fudgy world of political donations – it seems to have been driven by politically motivation – to take down the Government by removing Bank’s support from the last term coalition.

Bank’s resignation from Parliament was too late to cause major problems,

Dotcom went on to finance and set up a party with a main aim being to get John Key and National out of Government.

Politics is often a dirty game, and there’s some very dirty looking things swirling around this case.

How does signing off an electoral return after a failed campaign compare to bringing down the Government?