Solicitor-General: John Banks retrial should stand

The most senior Crown lawyer in the country maintains that while Kim Dotcom's evidence against John Banks has changed since the first trial, the story remains the same in one crucial respect.

The Solicitor-General Mike Heron, QC, appeared in front of the Court of Appeal by audio-visual link and told the trio of judges that their ruling - which ordered a retrial for Mr Banks, not an outright acquittal - should stand.

One of his points was that the so-called Butler memorandum, which was not disclosed to Mr Banks' legal team before the first Court of Appeal hearing, did not change the key plank of the false electoral return charge.

"Dotcom maintains there was a conversation with Banks in his house about donations. There is no fundamental change about whether there was a conversation. Mr Banks himself accepts that.

"Mr Banks knew that these donations had been made. He knew who the donor was. Whether there was one lunch or two, cannot totally undermine that," said Mr Heron.
"It might, with respect. But could a properly directed judge or jury could reach the conclusion that Mr Banks did know? That would be a matter for jury or a judge."

Mr Heron said he was "not defending Mr Dotcom's credibility for one moment" but a judge could rely on parts of his evidence and dismiss others, as Justice Edwin Wylie did when convicted Mr Banks.

The Queen's Counsel said there was also an issue around whether the Butler memorandum needed to be disclosed to the defence and in any case, the material did not change the key tenet of Dotcom's evidence.

For the Court of Appeal to rule there was a miscarriage of justice, Mr Heron said there had to be a fundamental error in procedure.

"It's a high threshold and it's hard to see how the lack of disclosure of a statement, which is not crucial to the Crown case, meets that."

He confirmed Dotcom had signed a second formal witness statement but Mona Dotcom and Wayne Tempero, other key Crown witnesses, had not.

Mr Heron said the most appropriate forum for all these issues to be determined is in the High Court, where Justice Murray Gilbert will decide whether there is enough evidence for the second trial to go ahead.

Kim Dotcom's new statement in the John Banks case is a "fantasy and a nonsense", according to the former politician's QC at a hearing before the Court of Appeal today.

David Jones, QC, is asking the three appellate judges to reverse their decision to order a second trial after they quashed Mr Banks' conviction for filing a false electoral return.

Mr Jones says the Crown made a "very serious error" by not disclosing new material, known as the Butler memorandum, ahead of a previous Court of Appeal hearing in October.

At that hearing, two American businessmen gave affidavits which corroborated the evidence of Mr Banks and his wife Amanda and was "likely to have changed the outcome of the trial", if accepted.

The undisclosed evidence in question is a memorandum written by lawyer Rowan Butler who was instructed by Crown prosecutor Paul Dacre, QC, to interview Kim Dotcom about the affidavits filed by the two American businessmen before the appeal hearing.

The pair said they arrived in New Zealand on June 5, 2010 and were taken to Dotcom's Coatesville mansion, where they had lunch with Mr and Mrs Banks and Mr and Mrs Dotcom. Nothing about electoral donations was discussed, according to their affidavits.

This is at odds with evidence given at the trial, where the Crown contended the lunch was held on June 9, 2010 and the presence of the Americans was denied by the Dotcoms, as well as their bodyguard Wayne Tempero.

The defence was able to prove at the trial there was no lunch on June 9, because Mr Banks was campaigning and Mrs Banks was at work.

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.

Dotcom has now signed a new statement for the Crown which contradicts his previous evidence, which Mr Jones told the Court of Appeal means the prosecution faces "insurmountable" problems.

He said the Court of Appeal should have been made aware of the existence of the Butler memorandum at the time of the appeal, because the Crown submissions were made on a false ground.

"This Court was denied the opportunity to consider the matter fully. Why should Mr Banks suffer another minute?" said Mr Jones.

"The appellant and the Court have been kept in the dark. By the Crown. Critical information which must have made a difference to the outcome."

Mr Jones said Dotcom's new statement now confirms there was a second lunch - "diametrically opposed" to his previous position.

He read parts of the transcript of Dotcom's evidence from the trial where Dotcom was asked about the presence of the two American businessmen at the lunch where donations were allegedly discussed.

"There were no two Americans, that was a total fantasy...certainly not, no no" Mr Jones quoted Dotcom as saying.

Mr Jones said Dotcom was very specific in his evidence.

"He had ample opportunity to say there was a second lunch. He's said the Americans at the lunch was a 'fantasy' and a nonsense," said Mr Jones.

"That, in my submission, is what his latest statement is."

Other witnesses at trial, Dotcom's bodyguard Wayne Tempero and wife Mona, did not say a "dickey bird" about a second lunch, said Mr Jones.

The Queen's Counsel was questioned about why the Court of Appeal should recall its judgment, when Mr Banks had another "remedy" - he has applied for the trial judge to throw the case out.

Mr Jones said: "It's the right thing to do. It's a matter of justice...You have a situation when Mr Banks succeeded on appeal. This court has made a decision based on a wholly false premise. Thankfully it granted the appeal.

"The questions has to be asked: Would we have ever known about this complete change of circumstances if this Court had not granted the appeal?"

The Solicitor-General, Mike Heron, is now making submissions on behalf of the Crown by by audio-visual link.

The court reserved its decision.