ACT leader John Banks wants to be excused from appearing in court over the Dotcom donations saga.
A judge summoned the Epsom MP to appear in Wellington District Court next week, after retired accountant Graham McCready launched a rare private prosecution on a charge of knowingly filing a false election return.
In a memorandum filed to the court today his lawyer David Jones QC can’t appear at Wellington District Court on Tuesday because he’ll be at a funeral in Auckland.
Jones is asking if Banks can be excused and instead represented by a lawyer.
However, he added: ‘‘Mr Banks will comply with any lawful direction of the court to attend the court as required.’’
Jones also argues the summons has no legal effect. Information should have been filed to the Auckland court - because Banks lives in Auckland and the 2010 offence is alleged to have happened there.
He also says it is ‘‘duplicitous’’ and does not comply with the law.
Last month district court judge Ian Mill ruled there was enough evidence to allow McCready’s action.
The offence carries a maximum penalty of two years' imprisonment.
McCready also asked the court to impose bail restrictions on Banks which would prevent him contacting any witnesses, including Labour MP Trevor Mallard, who made the original complaint.
Jones said this application is ‘‘unfounded and misguided.’’
‘‘There is no legitimate basis for bail to be required let alone conditions of bail, particularly those sought,’’ Jones argued.
Internet mogul Kim Dotcom - who won his own significant battle against spy agency GCSB yesterday - says he gave Banks $50,000, in two $25,000 cheques, towards his 2010 Auckland mayoralty campaign.
Police files revealed Banks was handed a $15,000 cheque by SkyCity executives in a branded envelope. All three donations were registered as anonymous.
Police investigated the donations but said that, although local electoral laws were broken, they did not have enough evidence to prosecute.
However, the release of the police dossier prompted McCready, of Wellington, to take legal action.
He pointed to a witness statement from Dotcom which says Banks asked for the donation to be split in two, and a subsequent call to thank him for the gift.
He also referred to a statement by lawyer Greg Towers which reveals Banks told him in February that he could not back Dotcom publicly because of his previous ‘‘support’’ during the campaign.
Banks has maintained he has nothing to hide over the donations and branded MrCready’s action "an attention- seeking stunt" and a waste of taxpayers' money and the court's time.
McCready, who was convicted of filing false tax claims in 2009, previously brought a private prosecution after Mr Mallard had a punchup in 2007 with National MP Tau Henare.
Mallard was convicted of fighting in a public place and ordered to pay $500 to a drug and alcohol programme.
- Fairfax Media