Brett Donaldson was labelled a fraudster but after six years he has won his fight with the Serious Fraud Office, which has been banned from prosecuting him again, reports Phil Taylor.

Brett Donaldson is grateful and angry. "I'm pissed off with the SFO but grateful that justice is alive and kicking. I had to fight to get there but eventually the system worked."

He is sick of courts but made one more application this month - to lift his name suppression so he could tell the story of how he lost his shirt to fraud and ended up being charged as a co-conspirator.

Donaldson, 53, wants those who looked at him sideways after he was charged in 2011 to know what happened.

His association with Mark Whelan - jailed for four years and four months - left Donaldson bankrupt and with an uphill struggle to overturn his own convictions. He voluntarily did two interviews with the SFO, but told the Weekend Herald he believes the agency had already made up its mind.

Advertisement

The SFO was too aggressive under the directorship of Adam Feeley after the Global Financial Crisis, Donaldson believes. "They were over-zealous. It wasn't in their agenda to believe me."

He was convicted in March 2013 relating to documents used to borrow $550,000 from vehicle-finance company, Motor Trade Finances Ltd. The convictions were overturned 19 months later, in September. Then, in a rare move, the SFO was barred in May from prosecuting him again.

Three Court of Appeal judges and a District Court judge were strongly critical of the case. The SFO had not presented evidence to prove Donaldson knew the documents were fraudulent and that he knew the money was coming from the motor finance company.

"It was not apparent to us from the [trial] record, and still remains unclear at the appeal, exactly what the basis of [Donaldson's] liability was said to be," the judgment said.

The judges recommended that the SFO review its case before deciding whether to seek a retrial and when it missed the deadline, Auckland District Court judge David Sharp found that the "extraordinary circumstances" necessary to stay a prosecution were met. The prosecution had failed to bring a proper case within three and half years of charging Donaldson, he said.

The SFO declined to comment on criticism of its case.

Fewer than a dozen prosecutions are understood to have been stayed in the SFO's 35-year history, often because of death or poor health of the accused, rarely because of the quality and conduct of its case.

Donaldson found himself in trouble because he signed loan documents prepared by Whelan that listed non-existent securities, such as diggers.

Advertisement

The prosecution alleged he was complicit; the defence said Donaldson was in the thrall of Whelan whom he saw as a wealthy expert in finance and it had never occurred to him that the diggers didn't exist.

"I think that anyone who has met Brett can see what he is," Donaldson's lawyer, Andrew Speed, told the Herald this week. "While he did make unwise decisions, he didn't deserve to face all this. It has been a pretty gruelling experience for him. You have got to have the stomach for the fight, for the stress."

Seven people were charged with defrauding the finance company: Whelan, described by the Appeal Court as "the central figure in all the offending", and six friends or acquaintances. Whelan, 42, organised the loans and did the paperwork. He pleaded guilty to 66 charges totalling $4.9 million.

Of the other six, three pleaded guilty in plea bargains, while Donaldson and two others were found guilty at a jury trial. Donaldson and one other appealed and won.

"The problem," says barrister Gary Gotlieb, who acted for the other appellant, "was that the Serious Fraud Office charged some of the victims of the person committing the fraud as though they were party to the fraud. We are talking five or six years to sort this out. It's come with a huge toll on these people."

One of the most upsetting things for Donaldson was that his father did not live to see the convictions overturned.

Advertisement

"That is hard," said Donaldson. "He was old-school, honest, a hard-doer. He raised us kids good. We never dared steal anything."

And the ordeal almost cost him his relationship with his son, 12, as the boy's mother, with whom he shares custody, didn't want him staying with Donaldson after he was charged.

Where he once owned houses in Pauanui and Bucklands Beach, Donaldson is now broke, a discharged bankrupt who is again selling cars for a living.

It was the decision to move on from car sales and try something new that led to the mess.

He began to work for Gregory Arnott, 52, a former big-firm broker, who Donaldson understood was running a successful and exclusive Australian investment fund. Donaldson received commission to attract "high-net-worth investors" and invested himself. Whelan was among those Donaldson approached.

Money defrauded from the vehicle finance company was lost in Arnott's scheme which was claimed to be making a 30 per cent profit. It turned out, said Donaldson, it was losing 30 per cent. Money from new investors helped hide the truth.

Advertisement

Arnott was sentenced to six years' jail last August on fraud charges related to his investment schemes and Donaldson was called by the SFO to give evidence. It is a subtle point because Donaldson was not accused in Arnott's crimes but, said Speed, "usually you don't call someone to give evidence who you think is dishonest".

About the time Arnott and Whelan were committing fraud, the SFO warned the public about "affinity crime", having noticed a rise as people responded to the collapse of finance companies run by strangers by trusting their investments with those they felt they knew. Donaldson knew both men and saw them as wealthy, successful and trustworthy.

The past six years have tested him in every way imaginable but things are looking up, he said, because he fought the law and finally won the battle.