It's a shame the "Tui Billboard" meme has well and truly jumped the shark (as, indeed, has that latter meme itself), because John Banks' "nothing to hide, nothing to fear" line is a prime contender.

John Banks has a message that he wants the New Zealand public to hear. It's a message he repeats every time a microphone enters his immediate vicinity. I suspect that if you were to sneak into his bedroom as he lay sleeping and dangle a dictaphone over his face, you'd hear him automatically muttering the words in a purely Pavlovian response.

That message, of course, is that he has "nothing to hide, nothing to fear" from his pending trial on a charge of knowingly filing a false return of election donations after his unsuccessful Auckland mayoral campaign back in 2010.

(Quick note for the media here - this isn't really an issue of "electoral fraud" (which denotes activities like ballot box stuffing or falsely enrolling electors so as to steal their votes). Rather, it's a "campaign funding offence". I know that sounds a lot less serious and even a bit boring and technical, but it is more accurate.)  

Let's get the obvious out of the way. John Banks is entitled to a legal presumption of innocence, just like everyone else. Unless and until he is convicted of the offence - that is, it is shown beyond a reasonable doubt that he did sign the return of his campaign donations while knowing that this return falsely described donations as being "anonymous" when he actually knew their source - he's legally off the hook for it. And, as I'll get to at the end of this post, I suspect there will be real problems ever showing to this level of confidence that the elements of this offence have been met.

Having said that, however, it is still legitimate to look at Banks' actions since this issue arose and ask whether these are in accordance with this claim that he has "nothing to hide, nothing to fear". In other words, do his deeds match up to his oft-expressed words?

We may begin by revisiting how this story first broke almost 18 months ago, back in May of 2012. Paul Holmes recounts Banks' initial response to the claims he had failed to disclose Kim Dotcom's donations as follows:

When I put [Dotcom's allegations] to Mr Banks on Q+A last weekend, he denied everything. I think he did. I don't really know what he was doing. He said all of this was a distraction and I really should be asking David Parker, who was on live with him, about the soon-to-disintegrate Labour leadership. I said that I didn't want to discuss that, I was more interested in this Dotcom matter and whether he had failed to declare a large donation for a campaign from someone he'd seen writing out the cheques.

Mr Banks said he did not come up the river on the last cabbage boat. I hadn't heard that expression before but I think it's the same as the one I know, which is, "I didn't come over on the last ship with a foot down each funnel." Meaning, whichever expression you use, I ain't silly.

Nothing to hide, nothing to fear.

Then, after some 48 hours of this outright refusal to even discuss the issue, Banks claimed to have a change of heart. Blaming his lawyers for advising him to keep quiet, he explained that he always wanted to explain matters to the public in full. Except, as I noted in this post, he then proceeded to say ... nothing different. Despite his protestations that he was an open and honest character, we learnt no more from him about his relationship with Dotcom, or how his mayoral campaign structured its fundraising activities, or what exactly happened when he met his campaign aide to sign off on the return of his campaign donations.

Nothing to hide, nothing to fear.

Banks was apparently a bit more forthcoming with the Police when they carried out their investigation into whether he had breached the Local Electoral Act (after Trevor Mallard complained to them). He was interviewed under caution for three hours on June 15, 2012, and provided some sort of account of how the donations were solicited and his signature on the return was appended.

At least, I assume that is what he provided, because the relevant section of the Police's report on the matter - all five paragraphs - were redacted. And why were these matters redacted? Well, John Banks' initial story was that the Police decided to do it off their own bat ... only for it to later emerge that it was Banks' lawyer who had specifically asked for the material to be kept from the public's eye.

Remember - nothing to hide, nothing to fear.

And so we get to Mr McCready and his mission to call Banks to account for his "crime". Having failed to have McCready's case thrown out on preliminary matters, Banks then faced a committal hearing in the Auckland District Court. Key to the question of whether Banks should face trial is whether there is sufficient evidence for a reasonable jury (or reasonable judge, if sitting alone) to conclude that he "knew" that the return of donations he signed was false.

Here's what Judge Gittos' says about how he can decide whether that evidence exists (at paras 17-18):

Mr Banks is the only person able to give direct evidence as to this issue. He has not done so. I draw no inference from that state of affairs.

It follows however that this issue necessarily must be appraised on the basis of what inference may properly be drawn from the evidence of other witnesses.

Note what Judge Gittos is saying. He (quite rightly) says that Banks' decision not to take the stand and explain in court how he came to sign the donations return should not be assumed to tell us anything in itself about his guilt or innocence. But it does mean that, without his account, the stories of those who gave him money become the only way to decide if there is enough for a reasonable jury (or judge) to think that Banks "knew" of the declaration's false nature. 

So, once again, what would seem to be a perfect opportunity to tell the world what happened and show that he had nothing to hide, nothing to fear slips past. 

Having been fairly scathing of Banks reluctance to be open with the world about the trouble he's facing, let me dial things back a bit and try and restore some balance.

First of all, the fact he is facing criminal prosecution means he is in a bit of a jam when it comes to public comments. His lawyers' advice will be pretty unequivocal - even if innocent, don't say anything about this at all. Any slip of the tongue, or contradiction in stories, might get thrown back at you in court. And you can be sure that whatever he did say about it would be parsed and pulled apart by his political enemies. I mean, look what a part-time amateur like me can do in a blog post, and imagine what full-time pros would do with an admission that (say) Banks actively tried to structure his mayoral campaign so that he could solicit money whilst being able to deny he knew where it came from!

Still, if that is the case and Banks won't speak because of legal advice and fear of political adversaries, it's a bit different to "nothing to hide, nothing to fear". In fact, it's almost the direct opposite of it.

Second, there remains the key question. Did Banks actually break the law by signing the return of his campaign donations while knowing that this return falsely described donations as being "anonymous" when he actually knew their source? As only one man knows the answer to that and he isn't saying anything beyond a blanket denial - "nothing to hide, nothing to fear!" - I am left with no option but to speculate wildly.

I can't for the life of me see why Banks would have sat down and thought something along the lines of "Dotcom and Sky City have given me all this money, but I don't want anyone to know that they did and so I'll deliberately lie about where it came from in my return even though I know that it is completely illegal to do so." He was, after all, the losing candidate  in the mayoral race. Why would anyone have cared who gave him money, and why would he feel the need to make a decision to hide its source after the campaign was over? So any sort of claim that Banks deliberately or maliciously sought to evade the requirements of the Local Electoral Act strikes me as deeply implausible.

However, it is still possible that Banks committed the offence he's charged with. Banks may have thought that his campaign had structured its overall fundraising activities so that he would go out and shake the money tree, then let any dollars he managed to knock loose fall into the hands of his campaign team. And as long as Banks personally didn't know what dollars came from which tree, then all the donations his campaign received could be treated as "anonymous".

The problem then is that Banks' role appears to have gone beyond just asking for cash, and instead being actively involved in receiving it in person (the Sky City donation), or advising so explicitly on how it should be given that he couldn't then claim to be "unaware" of where any subsequent donation came from (the Dotcom donation). In which case, no matter what Banks and his campaign may have subjectively thought about the system they set up, the donations were no longer "anonymous" as a matter of law and instead needed to be declared.

Which then gets us to the nub of the question - what did Banks know about the contents of his return of election donations?

  • Did he honestly not know anything at all about what the return of donations said, because he didn't read them (as the unnamed campaign worker - and can someone please tell me why is that worker unnamed? - responsible for his fundraising activities says happened)?
  • Or did he look at the return of donations, see that they were all listed as coming from "anonymous" sources, know that in fact some of them were from Sky City and Dotcom (because of his involvement in receiving or advising on them), but wrongly assume that because of how he thought the campaign had structured its fundraising activities it was still lawful to describe them as "anonymous"?

If it is the former, then Banks is in the clear. And I have to say, if the campaign worker (and, assumedly, Banks) testifies at trial that this is what happened, then I struggle to see how a jury could find "beyond a reasonable doubt" that they are outright lying. Which is why my money is still on Banks walking out of the trial court a free man.

But, then again, juries (and even judges) are funny and fickle beasts. So it's not beyond the realms of possibility that they would (having heard all the evidence) conclude that the second set of circumstances properly describes Banks' state of mind. 

In which case, Banks really does have something to hide, and plenty to fear.

Comments (18)

by Nick Gibbs on October 23, 2013
Nick Gibbs

So from a pragmatic point of view, the police were wise not to waste their time with a prosecution?

by Andrew Geddis on October 23, 2013
Andrew Geddis

"So from a pragmatic point of view, the police were wise not to waste their time with a prosecution?"

I thought so at the time. But that said, we've now had a District Court Judge say that the available evidence could reasonably support a conviction. 

Be interesting to see what the Solicitor General thinks about it!

by Peter Green on October 23, 2013
Peter Green

You don't have to read something to know what's in it. E.g. John Key knows what the police report says, even if he's being truthful about not reading it.

by Andrew Geddis on October 23, 2013
Andrew Geddis

You don't have to read something to know what's in it.

Sure - and if Banks deliberately didn't read the return in order to claim he didn't "know" that it had incorrect information in it, then he'd be guilty of the offence (says Judge Gittos).

by Graeme Edgeler on October 23, 2013
Graeme Edgeler
  • Did he honestly not know anything at all about what the return of donations said, because he didn't read them (as the unnamed campaign worker - and can someone please tell me why is that worker unnamed? - responsible for his fundraising activities says happened)?

The campaign worker is not "unnamed". He gave evidence at the committal hearing and is mentioned by name in the judgment committing Mr Banks to trial.

by Andrew Geddis on October 23, 2013
Andrew Geddis

Oops. Missed that. I was going off earlier media reports, such as this:

However a campaign worker responsible for finances, whose details are suppressed, said it didn't matter where the donations came from.

"None of us cared who the money came from," he said. 

At the end of the campaign, he went over expenses with Banks in a meeting, including the return of donations.

I assume the non-publication order (given for whatever reason) has now lapsed, and Mr H.'s name is able to be used? Not, I note, that it appears to be a particularly important one ... the google tells me nothing.

by Graeme Edgeler on October 23, 2013
Graeme Edgeler

I assume the non-publication order (given for whatever reason) has now lapsed, and Mr H.'s name is able to be used?

I'm not saying you're wrong, but I would not make that assumption.

by Andrew Geddis on October 24, 2013
Andrew Geddis

Which is why I didn't use his full name!

by Fentex on October 24, 2013
Fentex

He was, after all, the losing candidate  in the mayoral race. Why would anyone have cared who gave him money, and why would he feel the need to make a decision to hide its source after the campaign was over?

I find this thinking lacks imagination, and as a logical conclusion seems premised on the idea Banks wouldn’t run again. If he does then anything is always relevant to his future and motivations.

Not to mention there’s seldom much sense or reason behind criminal behaviour that leads to convictions. If people were so rational we’d have no crime worth reporting.

Personally I think it more likely these facts speak to a guilty conscience – knowing quid pro quo is implicit in large donations it’s obvious hiding them would be instinctive for many to protect a reputation, temporary set backs in a electoral result not being important.

by Graeme Edgeler on October 25, 2013
Graeme Edgeler

Which is why I didn't use his full name!

Missed this really quite excellent article about the prosecution, which includes:

... Instead his defence relied on its one star witness, the financial manager of his campaign, a businessman for whom name suppression lapses on Monday (unless he appeals).

by stationary motion on October 28, 2013
stationary motion

Why it it not material to adduce that Banks had requested Dotcom to split his donation into two 25k packets so that they would be able to recorded as anonymous? Surely the fact that Banks had direct and prior knowledge of who the anonymous donors are, since he has solicited (and directed) them, is telling. It's a bit like filling up a supermarket trolley, paying at the till, and then when someone points out that the receipt shows you've bought a bunch of pornography magazines on a company credit card you argue you have no idea how they got onto the receipt, and you didn't check the receipt at the time you paid. Obviously you know what's on the receipt because you filled up the trolley. The prosecution in the Banks case have Dotcom and his security manager witnesses saying that Banks asked for the donation to be presented as two 25k cheques. Doesn't that imply that Banks knew the contents of the donations form which he signed? When ge confirms with the staff member that everything is on the form as it should be, there's surely an acknowledgement that he has an idea of what the contents are?      

by Peter Green on October 28, 2013
Peter Green

What stationary motion said. I can't tell if we're missing some sort of legal nicety, or if the lawyerly people have some sort of tunnel vision on this point.

by Andrew Geddis on October 29, 2013
Andrew Geddis

stationary motion/Peter,

I'm guessing, but I suspect Banks' defence will be either (or both);

(1) While I told Dotcom to split the donation into two $25,000, my campaign then received a number of donations of this amount (and I personally wasn't made privy to where those had come from). So I didn't know whether any of the $25,000 listed on the return were from Dotcom - he only promised he'd send me the money, and I didn't know whether he'd then followed through. Therefore, as far as I'm concerned, the money came from an "anonymous" place.

(2) I didn't actually look over the return of donations closely enough to see how the donations were listed, so even if they were wrongly called "anonymous", I didn't know that this was so.

by Fentex on October 29, 2013
Fentex

I didn't actually look over the return of donations closely enough to see how the donations were listed, so even if they were wrongly called "anonymous", I didn't know that this was so.

So what was he signing? One would think that a signed document with some kind of legal weight indicates an affirmation by the signer of something important.

If his signature was an aiffirmation that the document was accurate and truthful then a defence of "I didn't bother checking that document I affirmed was correct" shouldn't hold much water. Personally I find avoidance of duty to assure such accuracy prima facie evidence of deceit.

by Andrew Geddis on October 29, 2013
Andrew Geddis

So what was he signing? One would think that a signed document with some kind of legal weight indicates an affirmation by the signer of something important.

There is an offence of submitting a false donations return not knowing that it is false - but it can only be prosecuted within six months of the offence being committed. And the District Court Judge rejected the argument that the very act of signing deems you to "know" what is in the donations return (i.e. it has to be positively proven that you knew its content, or deliberately evaded finding out so that you could later claim ignorance).

Personally I find avoidance of duty to assure such accuracy prima facie evidence of deceit.

That will be a primary issue for the jury - is it credible Banks would have signed without looking?

by stationary motion on October 30, 2013
stationary motion

On points: (1)

"The man who banked two cheques from German multimillionaire Kim Dotcom to John Banks has described how he deposited $50,000 in Queenstown so the donation would come from "as far away as possible" and would appear to be anonymous.

"The former Dotcom employee – who doesn't want to be named – also says he knew the cheques had gone through because Mr Banks... rang Dotcom's bodyguard, Wayne Tempero, to thank him for the donation."

(this was from the reporting on the original police investigation last year http://www.stuff.co.nz/national/politics/6857142/Dotcom-mans-trip-to-ban...)

Plus Wayne Tempero presumably will back this up... that's looking more credible than Banks just saying, 'No I didn't'. 

Banks also received the Skycity cheque in an envelope by hand. It's also mentioned that he knew that this campaign didn't have a lot of funds, so presumably he did have a fairly good idea of the in-comings, and they weren't getting 25k every second day. 

(2)

Could work. 

Bank's press secretary wrote in an email to NZH that Banks had discussed the contents of the form with the treasurer... 

https://pbs.twimg.com/media/BWr7jfTCUAA2eSr.png:large

But then backed away, saying he just asked if it was all okay then signed it.

It would be interesting to know if the treasurer knew of Bank's practice of asking for donations to be split so they could be anonymous, or even advised him on this, and thus was confirming that this had been recorded on the form. What did the treasurer believe he was informing Banks of when he said, 'Here is the donations part of the form' - did they already have an understanding on this matter?  

 

 

by Andrew Osborn on November 03, 2013
Andrew Osborn

Strange that nobody sought prosecution over Helen's credit card fraud or Winston's theft of funds or the Greens attacking National Party billboards.

Are we seeing political bias by the Judiciary? Because it seems the ruling was factually incorrect on several points.

 

by stationary motion on November 27, 2013
stationary motion

Crown's case (from coverage of high court appeal)

"However, Mr Heron said the Crown's case would be that Banks had encouraged the donations, knew they were being made, and made it clear he intended them to be anonymous.

"So whether or not he gave the return a great deal of scrutiny won't be at the heart of the Crown case,'' he said."

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