Guest Post: The Banks Prosecution

A guest post by Flipper:

Flipper hears that there are some very upset people (seriously p****d off is the way one source describes them) at the Court of Appeal, particularly Justices E France, J Wild and F Miller.

The reason?
The Crown Law Office (M Heron/ U Jagose (?) and P Dacre) sat on information that clears John Banks, and did not disclose it either to the C o A or to J Banks’ counsel, David Jones.
Had the information withheld been disclosed to Jones and the CoA, experienced observers assert, the appeal would have been allowed immediately, and no retrial ordered. That would have been the end of the matter, apart for some later unfortunate consequences for the Crown.

To recap, the Crown sent solicitor Rowan Butler to interview Dotcom over the new evidence (from two US businessmen) that Banks would present to the CoA. Banks’ counsel had observed the rules and disclosed that to the Crown. The interview with Dotcom took place on September 29, 2014, and Butler reported to Crown Counsel Dacre in a memorandum, also on September 29. The “Butler Memorandum” introduces a new Dotcom claim – that there were two meetings with Mr and Mrs Banks, one of June 5, 2010 and the other on June 9, 2010. He had earlier asserted that there was only one meeting on June 9. Wylie J, however, found that the lunch was on June 5, as latter also attested by the US businessmen.

The crux of the date issue is that both Mr and Mrs Banks were proven to have been elsewhere on June 9, and could not have been at a “second” meeting/luncheon with Dotcom on that date.

Now, understand this: This information was known to the Crown on September 29, 2014. It was not disclosed to Jones/Banks, nor to the Court of Appeal when it heard the case on October 29, 2014 – one month later. In fact the existence of the Butler memorandum was kept secret by the Crown until finally it was released (received by) to David Jones (Banks) on February 27, 2015.

On March 2, 2015 (the weekend intervened) David Jones filed a memorandum with the High Court requesting a section 347 (discharge) hearing. Flipper hears that the Crown has now agreed to this hearing. But that is not all the bad news for the Crown. It is also said that David Jones has gone back to the Court of Appeal because it appears, on the face of evidence now disclosed by the Crown, that the Court was deliberately misled.

It is of concern to some that SG Mike Heron should have been a party to that, and there have been comments linking the withholding decision to his deputy.

Where this unhappy saga will end is open to speculation. But it surely is:
• Good news for John Banks who has now spent more than a month (all up) in the Courts and appeared before more than 15 Judges;
• Bad news for the Crown Law establishment;
• Likely to give rise to assertions of malfeasance;
• Likely to adversely impact on the careers (future Bench appointments) of those involved on the Crown side of the case.

It will be very interesting to see where this ends up.