Act Party leader John Banks will be called to court to answer allegations that he knowingly received donations to his Super City mayorship campaign from internet mogul Kim Dotcom and SkyCity but recorded them as anonymous.
Political activist and retired Wellington accountant Graham McCready has filed court documents to bring a private prosecution against Mr Banks after police determined they could not lay a charge because it was outside the six month time limit for summary charges to be laid.
In a decision released today, Judge Ian Mill said Mr Banks should be called to court to answer the allegations that relate to two $25,000 donations from Dotcom and his company Megastuff Ltd. A third donation of $15,000 from SkyCity Casino is also included in the allegation.
He said if the allegations are proven true, they show Mr Banks knew who the anonymous donations were made by when he signed his return
"There is sufficient evidential foundation for a summons to issue. The provision for private prosecutions in our law is itself an important check on potential abuses of prosecutorial discretion conferred on the Executive [Crown and police]," Judge Mill said.
Mr Banks' lawyer David Jones QC, who opposed his client being summoned to court, said there was no realistic chance for the prosecution to succeed and the court was being asked to "second-guess" why police had not prosecuted his client.
Mr Jones also said the case would be a "media circus".
But Judge Mill said media interest could not be a ground for declining a prosecution.
"In my estimation strong media interest indicates a strong public interest, which would tend to support the contention that it is appropriate for the case to be answered in open court."
He said material supplied by Mr McCready showed there were a number of people who could comment on what Mr Banks knew and when.
Sources close to Dotcom said he would be happy to comply with a subpoena from the court and appear as a witness.
Dotcom told police Mr Banks visited his home on June 9, 2010.
He said he offered Mr Banks a $50,000 donation to his mayoral campaign for the Super City.
According to Dotcom, Mr Banks asked for the donation to be split into two cheques and kept anonymous so that Mr Banks could continue to "help" him. The meaning of "help" was not expanded on.
That version of events was backed up by Dotcom's bodyguard Wayne Tempero.
Dotcom also told police that Mr Banks later phoned him and confirmed that he had received both cheques for $25,000.
A commercial lawyer for Dotcom, Gregory Towers, told police that he called Mr Banks after Dotcom was arrested on a warrant from the US.
Mr Towers said Dotcom needed medical attention and asked Mr Banks to help.
According to Mr Towers, Mr Banks said he could not help because doing so could have "potentially adverse effects" for Dotcom, in light of his support of Mr Banks' mayoral campaign.
SkyCity Casino boss Nigel Morrison told police he met Mr Banks in May 2010 at the SkyCity main offices and personally handed him a cheque for $15,000.
The treasurer for Mr Banks' campaign told police that he took sole responsibility for filing the cheque as anonymous and that Mr Banks signed off on his electoral return only after the treasurer confirmed it was correct and true.
Police determined they could not prove that Mr Banks knowingly filed a false electoral return and the lesser charge could not be laid because the six-month limitation period for a summary offence had passed.
Mr McCready told APNZ Dotcom would be called as a witness.