The fate of three men found guilty of trying to hide big donations hangs in the balance as the Court of Appeal weighs up whether to uphold their convictions, acquit or discharge them, or transfer them to a different piece of legislation.
Lawyers have argued it would be difficult to substitute convictions handed down under the Crimes Act, with fresh convictions under the Electoral Act.
It was a proposition the Court of Appeal judges asked counsel to consider as Yikun Zhang, Colin Zheng and Joe Zheng appealed in Wellington. READ MORE: * National Party donations trio appeal convictions * National the winner as donations trio sentenced
Zhang was found guilty of obtaining by deception in relation to a $100,000 donation to the National Party in 2018, Colin Zheng was found guilty in relation to the 2018 donation as well as an earlier $100,000 donation in 2017 and his twin brother Joe Zheng was found guilty of one charge in the 2018 donation as well as guilty of obstructing a Serious Fraud Office investigation.
The convictions came after National MP Jami-Lee Ross publicly accused former party leader Simon Bridges of corruption by breaking up the two large donations from Yikun Zhang.
Ross ended up being one of seven charged in an SFO prosecution covering both the National and Labour parties. While Zhang, Zheng and Zheng were convicted, Ross and those accused in the Labour case were acquitted.
Lawyer for Yikun Zhang, Brian Dickey, said given the responsibility for disclosure under the Electoral Act, the charges would more likely lie with those who had transferred the broken up donation – the transmitters.
“The case hasn’t been run that way. The transmitters who would be the principal offenders, have never been charged.”
Most of the seven transmitters were called as witnesses during the High Court trial.
Dickey also said the liability of the National Party itself would have come under greater scrutiny if the charges had been laid under the Electoral Act,
The Crown admitted a substitution was permissible.
However, lawyer Katie Hogan said the charges remained appropriate under the Crimes Act.
“The Serious Fraud Office was vexed at first instance by the lack of a clear Electoral Act provision that applied to the facts underpinning this case.
“Additionally, the prosecution view at the outset and throughout was that the facts underlying the charges [and] the culpability attaching to those facts was such that the Crimes Act was attracted to it in Section 240 in particular.”
Both lawyers agreed if the case had been heard under Electoral Act charges, the National Party would have faced greater scrutiny for its own liability.
Crown lawyer Paul Wicks KC pushed back against the argument the High Court judge had taken a “Pakeha lens” to the case, and that this was a rationale for acquittal.
“The trial judge in dealing with the cultural dynamics in the trial, correctly outlined the approach... noting that the appellants were of Chinese origin, and identifying that... that required consideration.”
“There was no evidence given at the trial by either Colin or Joe Zheng and neither did they call any expert evidence on these cultural issues now put before the court.”
He said the attempt to introduce “new evidence” at appeal in this way was a “concern”.
Hogan also said the appeal argument that the conviction was out of proportion to the offence had already been considered by the High Court, and the information that a conviction may prevent Zhang from visiting his children in the US, was well-traversed.
Hogan also dismissed the argument that the judge-alone trial had been unfair.
“It's an impossible argument that a fair trial requires trial by jury. So there's no inherent unfairness.
“There’s no evidence to support the submission that a jury would be better placed to grapple with social-cultural dimensions."
On the Joe Zheng obstruction conviction Hogan said the full set of circumstances had already been considered thoroughly.
“The appellant may dislike the outcome but no error has been identified.”
“Justice [Ian] Gault heard 8 weeks of evidence... He was well-placed to assess it”.
The Court reserved its decision. Justice French told lawyers an outcome “will be some time”.
