IN THE COURT OF APPEAL OF NEW ZEALAND
CA428/2014 [2014] NZCA 575

BETWEEN JOHN ARCHIBALD BANKS
Appellant
AND THE QUEEN
Respondent

[…]

JUDGMENT OF THE COURT
A The application to adduce the evidence of Messrs Schaeffer and Karnes is granted.
B The application to adduce evidence of Mr Dotcom’s driving conviction is declined.
C The appeal is allowed.
D The conviction is set aside and a new trial ordered.

[…]

The new evidence

[…]
[22] Messrs Schaeffer and Karnes were approached by legal representatives and they have now sworn affidavits. They depose that in June 2010 they travelled to New Zealand to meet Mr Dotcom. They spent the day at the Dotcom mansion and shared lunch at the main dining table with the then mayor of Auckland, John Banks, and his wife.
[23] Mr Karnes says that Mona Dotcom attended, but only briefly, and that another person, Mathias Ortmann, was also at the lunch. He adds that a number of people from a company called Carpathia were also present. Mr Schaeffer says that Mathias Ortmann and Finn Batato were also at the lunch and that a Dotcom staff member, presumably Mr Tempero, sat nearby.

[24] Although they differ somewhat in their recollections of who was present, the two men agree that they were seated at one side of Mr Dotcom and Mr and Mrs Banks were seated at the other. They would have heard had Mr Dotcom offered a $50,000 donation to Mr Banks’s campaign. They say firmly that there was no discussion at the table about the mayoral campaign or donations.
[25] An appellant may not adduce new evidence as of right on appeal. The Court screens new evidence for credibility, freshness and implications for verdict. The evidence must affect the safety of the conviction, such that its exclusion risks a miscarriage of justice.

[…]

Verdict not unreasonable, based on evidence at trial
[42] Mr Banks also contends that the Judge’s verdict was unreasonable. A retrial would be averted if this ground of appeal were to succeed. When evaluating it the new, as yet untested, evidence must be put to one side.
[43] The conclusions reached by Wylie J support the verdict he reached. Mr Jones’s submissions focused primarily on credibility matters and contended for different conclusions about them. We hold that the Judge’s conclusions were open on the evidence at trial; that being so, the verdict was not unreasonable. Given that there is to be a retrial we do not think it appropriate to comment further.

Decision
[44] The appeal is allowed. The conviction is set aside. We order a new trial.

Full judgment: CA4282014.pdf

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