The Herald reports:
John Banks is seeking to have a second trial for filing a false electoral return thrown out after the discovery of evidence which the Crown failed to disclose to his QC.
Not good for the Crown, if true.
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 he was wrong about the date of the lunch and ruled it must have happened on June 5.
So Dotcom claimed the lunch was on 9 June, but the evidence was that this was not possible as Mrs Banks was at work, so they assumed it was 5 June.
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.
You can’t have it both ways. If the lunch was on 5 June, then the Americans were there and their evidence is now accepted that no donations were discussed.
If there was a lunch on 9 June, then the evidence is that the Banks were not there.
“It has never been part of the crown case nor has there been any prior suggestion that there were two lunches within a matter of days of each other, at which both Mr and Mrs Banks were present,” wrote Mr Jones.
“How the Crown can now properly pursue this prosecution in the circumstances is unknown … the crown case will accordingly have to be completely recast in a way which, with respect, is utterly untenable.”
It does seem preposterous that there would have been two lunches within four days with Mr and Mrs Banks, and this was never mentioned at the original trial.