Paul Dacre QC led the fatally flawed prosecution of John Banks. Photo / Wayne Drought
Auckland Queen's Counsel Paul Edmund Dacre - who led the fatally flawed prosecution of John Banks - is not out of the fire.
Neither is Crown Law and Solicitor General Mike Heron, QC.
Former Act MP and Auckland mayor Banksie has "lawyered up" and is determined to make Dacre and Heron pay for their behaviour, which resulted in a miscarriage of justice.
After CaseLoad sent questions to him earlier this week Attorney-General Christopher Finlayson, who appointed himself a QC in December 2012, leapt to the defence of Crown Law by issuing a statement expressing full confidence in Heron over the handling of the Banks Affair.
Distancing himself from Dacre's error, Finlayson says Crown Law's supervision of the litigation was satisfactory and "in line with prosecution guidelines..."
He made no mention of Dacre other than to refer to Crown Law briefing "an independent barrister to conduct the prosecution."
[CaseLoad reckons it's open to conjecture whether Dacre will get any more work from the Crown - a question put to Finlayson, who said he had nothing further to add.]
Finlayson said the next step is the determination of costs between Crown Law and Banks' lawyer and he would be making no further comments.
Banks says Finlayson's response "is as disappointing as it is seriously flawed..."
"He wants to rubber-stamp Crown Law's bad behaviour and pretend it never happened ... Yet the Court of Appeal ruled there was a serious miscarriage of justice as a result of the Crown's bad behaviour..." Banks told CaseLoad.
"For reasons known only to themselves Crown Law withheld critical evidence that would have vindicated me months earlier, and kept it secret from the Court of Appeal..."
Banks was originally convicted by Justice Ed Wylie at a judge-alone High Court trial of filing a false electoral return, but was sensationally exonerated and acquitted by the Court of Appeal when it ruled the appeal court was mislead by the Crown.
A QC since 2013, Dacre prosecuted Banks on behalf of the Crown, relying substantially on the evidence of giant German Kim Dotcom, Dotcom's wife Mona and a bodyguard.
At Banks' first appeal, Dacre failed to tell the Court of Appeal of the existence of a crucial memorandum he had prepared by a barrister, which was also not disclosed to Banks' lawyers.
In the memorandum specifically obtained by the Crown, Dotcom changed his evidence - evidence that originally helped convict Banks.
Banks claimed the Crown knew, but did not tell the Court of Appeal when it last year quashed his earlier High Court conviction and ordered a retrial, that its principal witness, Dotcom, had changed his evidence when confronted with affidavits filed on appeal by Banks.
Banks maintained that had the Court of Appeal known the true position it would not have ordered a retrial.
In later declaring a miscarriage of justice, and acquitting Banks without the need for a retrial, the Court of Appeal agreed. (CaseLoad May 29)
It recalled its earlier judgment, saying there was a serious error of process, albeit one it accepted was attributable to an error of judgment rather than misconduct.
University of Auckland law professor Bill Hodge says that of the thousands of documents involved in the case the unpresented memorandum in which Dotcom changed his evidence "screamed for disclosure ... It had bells and red lights all over it screaming for attention..."
"But in a complicated case of this kind, I suspect there may have been too many cooks involved and no one noticed," Prof Hodge says.
"In a private law firm you can bet every single document would be ticked off and someone would have picked this one up."
"Crown Law might take a close look at Paul Dacre's bill but it's unlikely anything will happen to him unless, for example, someone makes a complaint to the Law Society."
Ordinary folk have been fired from their jobs for far less grave errors so why should lawyers be any different?
The Crown error is seen by some to be of such fundamental gravity there are calls from inside and outside the law for Messrs Dacre and Heron to be held accountable and pay a price.
Ordinary folk have been fired from their jobs for far less grave errors so why should lawyers be any different?
Observers wonder aloud if the New Zealand Law Society should be investigating what went wrong.
Some say that because of how the Court of Appeal reflected the seriousness of the error it may even be appropriate for Dacre to consider the unprecedented step of surrendering his QC-ship.
At the time of his exoneration Banks was scathing of the conduct of Messrs Dacre and Heron, vowing to take further advice about his legal options.
CaseLoad understands Banks' position is not altered and is hardened.
Banks is supported by folk who think that a miscarriage of justice caused by such a serious error of judgment cannot go unpunished.
Footnote:
Guidelines for Queen's Counsel candidates emphasise the rank is awarded to barristers who have demonstrated excellence in their careers as litigators.
The criteria includes: Excellence, Knowledge of the law, Oral and written advocacy, Independence, Integrity, Honesty and Leadership.
New Zealand Law Society figures show only 10 per cent of an average of 94 lawyers who apply to be Queen's Counsel succeed.
So highly regarded and coveted is the rank, that since the first round of appointments in 1907, only 279 King's and Queen's Counsel have been appointed.
Some say the rank permits holders to charge like wounded bulls but that is not always the case and it is said to be debatable whether "fortune follows fame".
Guinness is flowing to celebrate popular Auckland lawyer Niamh McMahon's appointment as Honorary Consul-General for Ireland, replacing the long-serving and famously hospitable Rodney Walshe.
Dublin-born and Tipperary-raised Niamh (she pronounces it Neef), a principal at law firm McMahon Butterworth Thompson, has been in private practice since 1987, primarily as a commercial lawyer.
A devoted CaseLoader, scuba diver and regular attender at physical workout Boot Camp, Niamh has worked closely for many years with the Honorary Consulate General and with other organisations including the Ireland Fund of New Zealand, Enterprise Ireland NZ and the Irish Business Network NZ.
"Is that a complimentary keg I hear rolling into the Ladies & Escorts Lounge?" said Our Man At The Bar, wishfully dusting off a pair of handy green garden fairies.
"Ireland may be a nation once again, but there's nothing free for the likes of you," said The Scunner.
[Read more about Niamh in this week's New Zealand Law Society Lawpoints online bulletin.]
CaseLoad's acknowledgment last time of the passing of former Chief Justice Sir Ronald Davison - anointed New Zealander of the Year by the New Zealand Herald for jailing the Rainbow Warrior bombers for 10 years - failed to mention something that put His Honour on the world map.
When his abyssinian cat was kidnapped in 1998 Sir Ron (then 77) spent $1000 on advertisements, hired a pet psychic - who apparently provided little help - and eventually lured his moggy home with smoked salmon ...
Attorney-General Christopher Finlayson's job-lot appointment of 10 acting district court judges - five of them to work in the Family Court - indicates a lower judiciary under mounting pressure.
Why are they "acting"?
Word is a legal limit on the number of "real" district court judges able to be appointed has been reached, so "acting" judges - known as "Claytons" - are desperately needed to prop up the system.
"Do these Claytons need law degrees and if we get ten does the next one come free?" said Our Man At The Bar, pocketing his application for another day.
"You're teetering on the edge," said The Scunner.
Actors, and where they will work, include Warren Cathcart (Gisborne), Richard Earwaker (Manukau), Jim Large (Palmerston North), Kim Saunders (Hamilton), Tony Snell (Rotorua), Garry Barkle (New Plymouth), Lynne Harrison (New Plymouth), Antony Mahon (Manukau), Sharyn Otene (Hamilton) and Dianne Partridge (North Shore).
Wellington barrister Kevin Riordon - who rates "good" on CaseLoad's B*st*rd scale - has replaced Queen's Counsel Chris Hodson, the fourth husband of Justice Dame Lowell Patria Goddard, and who doesn't rate so well, as Army Judge Advocate.
Hodson has retired to the English countryside while his missus spends the next five years trying to smell out and expose Britain's legions of paedophile politicians, VIPs and other deviant bigwigs.
Leading franchise lawyer and notary public Stewart Germann (63), principal of Stewart Germann Law, advises CaseLoad he is the new president of the 140-member Rotary Club of Auckland, the largest in New Zealand.
Not many folk know that Stewart is a film fan hooked on James Bond.
In a profile interview in 2014 he rated Sean Connery the best Bond ever - closely followed by Daniel Craig - and From Russia With Love the best Bond film, featuring S.P.E.C.T.R.E executioner, the late Robert Shaw.
Stewart rates Clint Eastwood as both actor and director and for action realism after Bond his pick is Matt Damon's Jason Bourne series.
At Auckland Grammar School he kept score in a notebook of 55 films he saw in one year, acknowledging later that his wife Janet thought he was a "bit odd over films..."
The S&P/NZX 50 Index closed down 0.10%, falling to 12,627.32.