Kim Dotcom's evidence in the John Banks case is being described as fantasy and nonsense as the Court of Appeal considers whether to scrap the retrial it ordered.
John Banks Photo: RNZ / Kim Baker-Wilson
The Court of Appeal last November quashed Mr Banks' conviction for failing to declare two $25,000 donations from internet entrepreneur Mr Dotcom for his failed Auckland mayoralty bid.
Mr Banks' defence team is asking the court to reverse its decision to retry the former politician and to instead fully acquit him.
Mr Banks' lawyer David Jones, QC, said at today's court hearing there was new evidence which was not presented to the court at its initial hearing last year.
It started from lawyer Rowan Butler interviewing Mr Dotcom about the evidence of two American businessmen, who said donations were never discussed at the lunch Mr Dotcom claimed it was.
Following that interview, Mr Butler provided a memorandum to the Crown saying Mr Dotcom changed his statements and that the donations were discussed at a second lunch on 9 June and not on 5 June as he had claimed in the initial trial.
Mr Jones said Mr Dotcom's change of evidence contradicted his trial evidence and was a "nonsense" and "fantasy".
Mr Jones said because that memorandum was never presented in the initial Court of Appeal hearing, the court was not able to consider the matter fully when deciding whether a retrial should go ahead or not.
He said it was a serious error of judgement from the Crown which amounted to a miscarriage of justice, and Mr Banks should be acquitted.
Story change admitted
Top Crown top lawyer Solicitor General Mike Heron QC, admitted that Kim Dotcom's story was changing but said it had not changed enough to acquit Mr Banks.
Mr Dotcom maintained there was a conversation in his mansion about the donations, and that Mr Banks himself accepted that.
Mr Heron told the court not disclosing the memorandum was not an error as it did not change the key tenet of Mr Dotcom's evidence, which was that a conversation took place.
The Crown often changed its strategy for a retrial, Mr Heron said.
The Court of Appeal has reserved its decision.
