Crown sees conspiracy, defence denies fraud

Summing up the case for the prosecution yesterday, John Upton, QC, referred to a large volume of emails, faxes and memos written and received by the defendants between 1997 and 2001.

He said the communications showed collaboration and participation by all the defendants in a conspiracy to defraud.

Upton argued that the defence had not challenged the "essential facts" of the Serious Fraud Office case and noted that the evidence of a forensic accountant was not questioned.

JPs Ken McKay and Don Harrow have ruled that the SFO provided enough evidence to establish a prima facie case for the charges of conspiracy to defraud.

All seven accused will face a 12-week trial likely to be held early next year at the Auckland District Court.

The SFO has pencilled a start date for February but the exact dates will be decided by the court on June 30.

All of the defendants have maintained their not-guilty pleas.

Summing up the defence case, Paul Davison, QC, said his clients had done nothing more than promote the interests of Kiwi Dairies.

He said what had emerged at the hearing was that the genesis of the prosecution was in the highly competitive environment of the dairy industry.

Fellow defence lawyer John Haigh, QC, said the SFO had failed to provide any evidence of "intent to defraud".

The email evidence merely showed the defendants implementing a commercial strategy against an industry background of uncertainty, he said.

Haigh also questioned the prosecution's suggested motives for the offending. Claims that defendants Paul Marra and Malcolm McCowan had a "personal vendetta" against the Dairy Board had not been proved by the SFO.

That kind of language was speculative and "simply a grandstanding exercise".

Defence lawyer John Billington, QC, said that while the Crown might have provided evidence of certain behaviours, they had failed to prove any criminal fraud.

"Fraud is, by definition, a form of theft," he said. But there was no evidence that any of the defendants had made any financial gain.

To pluck middle- and lower-level executives from one of the largest companies in New Zealand and suggest they were engaged in criminal activity was "frankly absurd and unreal".