Justice Wyllie’s decision has been released and if you have ever worried about the independence of our Judiciary this decision should remover all concerns. He has drafted a simple yet comprehensive review of the evidence and his conclusion is IMHO logically faultless and damning of John Banks.
Essentially Justice Wyllie believed Kim Dotcom, his former wife Mona Dotcom and his former Security Guard Wayne Temporo in their description of how Dotcom promised a donation of $50,000 to Banks’ campaign and then at Banks’s suggestion split the donation into two cheques of $25,000 each and Wylie clearly did not believe John Banks. He also decided that Banks’ hiding of the source of the donations from his treasurer meant that he knew the return would be false in a material particular or that he refused to check it because he knew that if he did he would notice the return was not correct.
Wyllie obviously preferred Dotcom’s and his supporters’ evidence about the circumstances of the donation.
[121] Having considered the evidence in its totality, I am satisfied that Mr Dotcom’s recollection of the discussion that he had with Mr Banks at the lunch was, in all essential respects, true and I accept it. Mr Dotcom’s recollection was supported by Mrs Dotcom and by Mr Tempero and I accept their evidence as well. The evidence of Mr Dotcom, Mrs Dotcom and Mr Tempero is broadly consistent with MrBanks’ police interview. It is also supported by the limited contemporaneous documentation. Both cheques were drawn on the Megastuff Limited’s account. They were consecutive cheques. There was no good reason why Mr Dotcom would have drawn two consecutive cheques, both for $25,000, rather than one cheque for $50,000, unless he was asked to do so. Mr Banks, in his police interview, said that he thought $25,000 “about right” to ask, and that if Mr Dotcom wanted to give him more, he could “with other entities”. This was not, however, what happened. Both cheques were drawn on the same company – Megastuff Limited. In my view, it is reasonable to infer that Mr Banks requested that the donation be split into two, so that they did not stand out and so that the donations would be consistent with other donations of $25,000 that his campaign team was endeavouring to solicit.
To back up Dotcom’s evidence was the evidence of his lawyer Greg Towers. Lawyers are trained to be accurate about things such as records of telephone conversations and Towers obviously has lived up to this training.
[128] Finally, and most importantly, there was evidence from Mr Dotcom’s solicitor, a Mr Gregory Towers. Mr Dotcom was arrested in January 2012. He was placed in Mt Eden Prison. He has a bad back and the prison environment was aggravating the situation. He wanted his own mattress from the Coatesville Mansion. He asked Mr Towers to seek assistance from Mr Banks as the MP for Epsom, in which Mt Eden is situated. Mr Towers gave evidence that on 8 February 2012, he had a half-hour telephone discussion with Mr Banks. Mr Towers said that, prior to that conversation, he had not been aware that Mr Dotcom had provided Mr Banks any electoral support. He said that he rang Mr Banks to ask him, as the MP for Epsom, to try and arrange for the Department of Corrections to provide better bedding for Mr Dotcom. He said that Mr Banks told him that as much as he wished to publically support Mr Dotcom, it might backfire on Mr Dotcom if “it b/comes known about election support etc”. Mr Towers recorded this comment in a contemporaneous file note. He was confident that he had recorded the words that were spoken to him as best as he could. There was no evidence of Mr Dotcom having provided any other “election support” for Mr Banks … I was satisfied that the discussion recorded in the file note could only have been a reference to the $50,000 donation by Mr Dotcom to Mr Banks’ 2010 mayoral campaign. In my view, Mr Towers’ evidence, and the file note, was compelling evidence, from a witness whose testimony was unimpeachable, that Mr Banks knew that the donations had, in fact, been made by Mr Dotcom. It was also consistent with Mr Dotcom’s version of what was said at the lunch on 5 June 2010.
The Judge did not believe Banks’ assertion of a conspiracy against him.
[131] I do not accept Mr Jones’s submissions in this regard:
(a) First, I watched each of the Dotcom witnesses carefully while they gave evidence. I did not notice anything in their demeanour to suggest that they were not telling the truth. I considered that each of the Dotcom witnesses (other than MrMcKavanagh) was straightforward in giving evidence. As I have already noted, with the exception of Mr McKavanagh, I consider that they were reliable and credible witnesses.
Mr Dotcom, in particular, was, in my view, a good witness. He answered questions about his criminal history frankly and openly. He did not obviously seek to “gild the lily” in giving evidence and there was no artifice that I could detect.
I accept that, in some respects, MrDotcom’s evidence was undermined by other evidence given in the course of the hearing. For example, Mr Dotcom was asked whether he had ever said that he would bring down the Government, and destroy Mr Banks. He replied that he had never said this, although he did acknowledge his dislike of the current Government. He said, in effect, that he holds it responsible for what he considers to be illegal spying, and for cooperating with the authorities in the United States in regard to his arrest in this country and the attempts to extradite him. Mr Dotcom’s assertions were directly contradicted by evidence given by Mr Mark Mitchell, the MP for Rodney. I accept Mr Mitchell’s evidence. However, this did not, in my judgment, detract from the balance of Mr Dotcom’s evidence.
By way of further example, I also consider that Mr Dotcom and Mr Tempero (under cross-examination) and Mr McKavanagh (in his evidence-in-chief) erred when they said that the cheques were signed on the same day as the luncheon meeting. In my view, however, this does not support the suggestion that they fabricated their evidence in its totality. It is trite law that witnesses may be mistaken about some details, yet be honest and otherwise reliable witnesses. As I noted above, it was understandable that the witnesses will not have perfect recollection of the detail of events which occurred some four years ago.
(b) Secondly, I record that each of the Dotcom witnesses was subject to fierce cross-examination. With the exception of Mr McKavanagh, none of them buckled under that pressure to any significant extent.
Wayne Temporo was highly respected by the Judge …
Mr Tempero struck me as a particularly strong and independent person, who would not readily accede to a request from Mr Dotcom to become part of a conspiracy.
Mr Tempero ceased employment with Mr Dotcom in 2013. The two are now at loggerheads. The evidence disclosed that Mr Tempero has, until recently, been the subject of a “gagging order” obtained by Mr Dotcom, preventing him discussing employment issues he has with Mr Dotcom.
The Judge’s conclusion was clear.
[134] Having considered all of the relevant evidence that I considered to be reliable, I was satisfied beyond reasonable doubt that the return of electoral expenses was false in a material particular, because the identity of Megastuff Limited as a donor to the mayoral campaign was not set out in the return of electoral expenses transmitted to the electoral officer, notwithstanding that Mr Banks knew about the two donations, each of $25,000, made by Megastuff Limited on behalf of Mr Dotcom.
The Judge decided that failure to declare the Sky City donation did not constitute an offence.
[146] It is unfortunate that Mr Hutchison did not check the position with Mr Banks. He should have done so. It is even more unfortunate that Mr Banks did not give rather fuller instructions to Mr Campbell and/or to Mr Hutchison. Nevertheless, I cannot exclude the possibility that Mr Hutchison interposed with his own (erroneous) judgement about whether the SkyCity donation should be treated as being anonymous. It follows that I cannot be sure that Mr Banks actually knew that the return was false in this regard at the time it was transmitted. Mr Banks might have thought that Mr Hutchison knew enough to record that the donation came from SkyCity, and he might have abstained from further inquiry when he signed the return, simply because he was careless and not because he knew what the answer was going to be. As noted by the Court of Appeal in Crooks, that is not enough to establish wilful blindness.
But he concluded that Banks had engineered a situation where a false return would be prepared and he then signed it.
[153] I consider that, in relation to the Dotcom donations, Mr Banks engineered the situation. He had the opportunity to check the returns. He refrained from doing so. Rather, he sought to insulate himself from actual knowledge of the falsity of the return by seeking an assurance from Mr Hutchison.
[154] I am satisfied, beyond reasonable doubt, either:
(a) that Mr Banks had actual knowledge that, at the time he signed it and at the time it was transmitted, the return of electoral expenses was false in a material particular in relation to the Dotcom donations, because he knew that he had not given to Mr Hutchison or anybody else in the campaign team the information that was required if the return was to be accurate, or(b) that Mr Banks deliberately chose not to check the return to see whether the Dotcom donations were properly disclosed, because he had no real doubt as to what the answer was going to be, and because he wanted to remain in ignorance.
Dotcom has this unnerving ability to collect political scalps. I wonder who will be next?
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