Some of those accused by the Serious Fraud Office of political donation crimes have indicated they will challenge the use of hearsay evidence of a conspiracy, and will ask the High Court to dismiss the charges due to deficiencies in the Crown case against them.

After almost four weeks of evidence, the Crown’s case against seven people over donations to the Labour and National parties is almost at an end. Now some defence lawyers have told Justice Ian Gault they are likely to pursue up to two challenges in court next week before any defence evidence is called.

The first challenge is under Section 22a of the Evidence Act and seeks to overturn the judge’s pre-trial decision allowing hearsay evidence to be presented by the prosecution, who argued it showed a conspiracy existed, and the defendants were part of it and the evidence related to ‘furtherance of the conspiracy’.

Lawyers for two defendants, whose names are suppressed, indicated on Thursday that they would argue that section 22a decision and they and lawyers for other defendants said they would also make an application for the judge to dismiss the charges under Section 147 of the Criminal Procedure Act.

Essentially, the defence lawyers are already saying the judge should rule that, after hearing the Crown’s evidence, there is no case for their clients to answer.

Discussion over defendants’ intentions for challenging the hearsay evidence of conspiracy and/or going further and applying for the s147 dismissal of the charges came during a break in the hearing on Thursday. A central Crown witness, the Serious Fraud Office’s principal investigator on the donations allegations, Lee Taylor, could not attend court due to sickness, leading to a break in the prosecution case.

Taylor is the last of around 50 prosecution witnesses – in a case which merges trials of those charged over two $100,000 National Party donations from 2017 and 2018 with those charged in connection with one Labour donation from 2017 of a net $35,000.

Those charged are former National MP Jami-Lee Ross, Auckland Chinese community leader and businessman Yikun Zhang and twin brothers Colin and Joe Zheng, and three people whose names are suppressed.  All seven have pleaded not guilty to charges of obtaining by deception. The Crown alleges the three donations were of Zhang’s money but broken up into smaller amounts to fall under the legal threshold for declaring the identity of the donor.

Justice Gault said his pre-trial decision on the admissibility of the hearsay evidence of a conspiracy had not dealt with two of the defendants, Ross and one of those with name suppression, and their situation could be argued now the matter was at the trial stage. He did not anticipate a “general review” for all defendants’ arguments over the s 22a ruling.

However Marc Corlett QC, for one of the defendants whose name is suppressed, said while he had “already lost twice on the 22a” he would again make formal submissions on that hearsay evidence about conspiracy. Sam Lowery, for another defendant with name suppression, indicated he would also submit on the earlier s 22a ruling. And John Katz QC, for Zhang, told the court the earlier, pre-trial rulings were provisional. 

The judge said: “I accept in a sense, that pre-trial provisional rulings are potentially reviewable at trial but I was not envisaging some kind of general review of the orders that I had already made. I was not anticipating that.”

If the witness Taylor could not make court again on Friday, the judge suggested it might be possible to hear the arguments on s 22a in the interim, ahead of the Crown being able to finish presenting its case.

He said applications for the charges to be dismissed under s 147 would have to wait until the Crown could finish, with the completion of Taylor’s evidence.

John Dixon, QC, for the Crown, said if Taylor remained unwell the prosecution would not favour him appearing in court by video to face cross examination, and both Corlett and Katz said their clients would not want Taylor finishing via video.

Corlett: “I would be reluctant to proceed in that way with this particular witness, given my cross examination.”

Tim Murphy is co-editor of Newsroom. He writes about politics, Auckland, and media. Twitter: @tmurphynz

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