A certain blogger whose name need not be mentioned in polite company may have wounded Auckland's mayor. But "retired accountant" (amongst other things) Graham McCready has sunk a pretty big harpoon into the side of John Banks. Now, can he wriggle off it?

So, John Banks is going to a full trial on a charge that he knowingly filed a false return of his donations for the 2010 Auckland mayoral campaign by claiming as "anonymous" donations he full well knew the source of. This pretty much has to be his political life on the line, as a conviction would see him automatically expelled from Parliament (as the relevant charge carries a potential prison sentence of up to two years). 

Sure, he could run for re-election at any subsequent by-election (or even at the 2014 general election). But given the legal point at issue, you'd have to think that a conviction would be the end of Banks' political career for good. Because in order for Banks to be convicted, a jury will have to conclude that he out-and-out lied about the cirumstances around the signing of his election return.

[I'm assuming that the trial will be a jury one, as the offence carries a potential penalty of two years in jail. If I'm wrong on that, I expect I'll get corrected pretty quickly (cough, cough ... Graeme Edgeler ... cough, cough).]

Here's why it all comes down to Banks' credibility. As I explained here and here at the time, John Banks couldn't claim on his return of election donations that the money from Dotcom and Sky City was "anonymous" in nature, as he in fact knew where (or rather, who) it had come from. So there is no doubt that the return of donations he provided was "false", insofar as this return said the donations were something that they were in fact (and law) not.

The key question, then, is whether Banks knew that the return contained these falsehoods when he signed it, or whether he signed off on it without knowledge of its actual content. Banks and his campaign assistant - who for some reason gets name suppression, quite why I'm not sure - say it was the latter. Here is how stuff.co.nz has reported the issue:

The man in charge of the campaign's finances, who has name suppression, said although Banks was the biggest contributor to the campaign, he had little to do with the finances.

"He was always kept at an arm's length from finances unless [the campaign] needed money," he said.

The man told the court that when he met with Banks so that he could sign the forms, Banks did not read them.

"He might have glanced at them but he didn't read them."

Now, if this story is true, then Banks hasn't committed the relevant offence, because he didn't have the requisite "knowledge" that the return was falsely calling donations "anonymous" when in fact (and law) they weren't. But is this story true? That's the key question.

Is it credible that, in spite of there being evidence that Banks personally solicited donations and told donors how to structure them so that he could declare them to be "anonymous", he would then sign off his declaration of donations without making any effort at all to check that it was accurate? Or, is this "I know nothink!" claim a story that has been concocted after the fact to try and provide legal cover for Banks?

It appears that Judge Phil Gittos thinks there's enough evidence available for a jury to decide that this latter scenario actually is the case. And so he's allowed the matter to proceed to a full trial, so that it can make the assessment for itself, after hearing from all the parties concerned. 

Now we'll get to see what 12 of Banks' peers think of him. Is he a liar who knowingly sought to hide the source of the money he used for his election campaign despite it being illegal to do so? Or, is he just an incompetant person who signs official declarations without bothering to acquaint himself with their contents?

Comments (26)

by Marcelo Rodriguez Ferrere on October 16, 2013
Marcelo Rodriguez Ferrere

Or, is he just an incompetant person who signs official declarations without bothering to acquaint himself with their contents?

Oh, I'm so sorry, Andrew. I couldn't resist. No comment on whether this amounts to some delicious form of irony. Good substantive analysis and all that other stuff though. I think you're right about his right to elect a trial by jury - s. 50 Criminal Procedure Act 2011 - although John Banks is fairly adamant it'll never make it that far.

by Andrew Geddis on October 16, 2013
Andrew Geddis

Bit of a gap between misspelling a word and putting your name to an official declaration of your election donations when it contained materially false information. But take your pleasures where you may ... .

As for if this actually gets in front of a jury - guess we'll see. Maybe he's expecting the Solicitor General to step in and stay it?

by Graeme Edgeler on October 16, 2013
Graeme Edgeler

[I'm assuming that the trial will be a jury one, as the offence carries a potential penalty of two years in jail. If I'm wrong on that, I expect I'll get corrected pretty quickly (cough, cough ... Graeme Edgeler ... cough, cough).]

It will be an indictable trial. All indictable trials are presumed to be jury trials (Crimes Act 1961, s 361A) but Banks has 28 days to ask for a judge alone trial (s 361B), and one will be ordered unless it is in the interests of justice that it be a jury trial. If he asks after that time is up, he may still get one, but would need to seek leave.

Marcelo is trying to confuse you with his fancy references to the Criminal Procedure Act. The charges against Banks were laid in May, before the law took effect :-) This is why there was a committal hearing, and an oral evidence order, and not something new and different. However, I would note that category 3 offences (even those carrying life sentences) are presumptively judge-alone, although you can simply request a jury trial for any one them. The time to elect would have passed, however, banks already having entered a plea.

by Andrew Geddis on October 16, 2013
Andrew Geddis

Ta, Graeme.

While you are here, can Banks appeal the committal to trial? I've told RNZ he can only do so on a question of law ... which I'm hoping is not completely wrong.

by Tim Watkin on October 16, 2013
Tim Watkin

Some nice Edgelering going on there – but in an affirming rather than 'gotcha' sense. (I claim TM on edgelering as a verb, so I just like using it as often as possible).

On other points...

1) it's conceivable that you'd intentionally not look at the form for exactly this reason, right? Plausible deniability. Of course then it makes the law an ass. What's the point of requiring a form to be signed if the incentive is for candidates to do so blindly?

(Most candidates ask people for money. Is the difference that they don't put a dollar amount on it? But in this case we know Banks knew how much cos he asked for the amount to be split in two. And, according to Dotcom, he spoke of favours in return, which is the terrible bit.

2) He'll want a judge-only trial won't he? He'd be mad to trust a jury on this.

3) I'm too tired to hunt out the story, but didn't he or his office insist he had read the form... before they changed their story and insisted he didn't?

by Graeme Edgeler on October 17, 2013
Graeme Edgeler

While you are here, can Banks appeal the committal to trial? I've told RNZ he can only do so on a question of law ... which I'm hoping is not completely wrong.

Sorry - there is no appeal at all, although he may try to judicially review the decision.

Banks had an earlier argument trying to get the summons thrown out, on the basis that what was alleged wasn't a crime. E.g. the offence in section 134 refers to a false "return of electoral expenses", so the offence doesn't cover donations; and an argument that the allegation that it was false, even if true, wasn't of an allegation relating to a "material particular", as the offence requires. He could bring those arguments back for a judicial review. Can't see him having any success beyond delay, however. This is about the facts.

it's conceivable that you'd intentionally not look at the form for exactly this reason, right? Plausible deniability. Of course then it makes the law an ass. What's the point of requiring a form to be signed if the incentive is for candidates to do so blindly?

As Felix Geiringer notes in comments to an earlier post by Andrew, our Courts have often held that wilful blindness is included within the concept of knowlegde.

He'll want a judge-only trial won't he? He'd be mad to trust a jury on this.

What's his aim? To avoid conviction, or to salvage his political career? A jury acquittal is probably a better look than an acquittal in a judgment which might explain in words exactly that something off was going on, even if it fell short of guilt for a technical reason.

I'm too tired to hunt out the story, but didn't he or his office insist he had read the form... before they changed their story and insisted he didn't?

In an email to David Fisher, asking for a correction.

by Andrew Geddis on October 17, 2013
Andrew Geddis

@Tim,

Your trademark application is denied as the verb "to Edgeler" is one that is customary in the trade.

@Graeme,

Appeal ... judicial review ... it's all the same these days.

That said, if I were Banks, I'd go straight to trial. Surely there must be a "reasonable doubt" that he actually read the return (or, deliberately avoided doing so in order to later claim ignorance) given the evidence of his mystery staff member? Also - just why has that staff member got name suppression?

by Alan Johnstone on October 17, 2013
Alan Johnstone

"What's his aim? To avoid conviction, or to salvage his political career? A jury acquittal is probably a better look than an acquittal in a judgment which might explain in words exactly that something off was going on, even if it fell short of guilt for a technical reason."

Surely he accepts his political career is over next year regardless?

Avoiding conviction even if it looks bad would appear to be critical, the humiliation of going through the justice system at his age, would be too much to take. 

by Marcelo Rodriguez Ferrere on October 17, 2013
Marcelo Rodriguez Ferrere

Mea culpa - I should have known better than to try and beat the Edge™ at his own game. I note that Graham McCready expects that Banks will try and challenge the admissibility of some of the evidence as a way of hobbling the trial - I'm not sure what evidence he's referring to - but that's surely the recipe for preventing resolution of this before next year's election.

Appeal ... judicial review ... it's all the same these days.

*chokes on coffee* Assuming there are one or two public law students out there reading this blog for exam tips, please ignore this irresponsible comment from Andrew. Good grief.  



by Andrew Geddis on October 17, 2013
Andrew Geddis

Oh, Marcelo - when will you give up this insistence on prioritising form over substance? Sliding scales of review? Mistakes of fact leading to errors in law? The vibe of the matter? It's all in the game, yo.

And if there are "one or two public law students out there reading this blog for exam tips", you are being very silly and should stop killing time at once.

by Graeme Edgeler on October 17, 2013
Graeme Edgeler

I note that Graham McCready expects that Banks will try and challenge the admissibility of some of the evidence as a way of hobbling the trial - I'm not sure what evidence he's referring to - but that's surely the recipe for preventing resolution of this before next year's election.

I can't see what evidence could be challenged - you're usually talking about search warrants or confessions if you're going down that track and I'm not sure there have been any. Evidence of opinion about what people think Banks knew could be objected to, but that really seems like a matter for objection at trial.

I would not however that a request for a pre-trial examination of the admissibility of the evidence is a matter for the prosecution. The usual course is that the defence will point to some evidence (say parts of a video interview) and ask the prosecution to request a pre-trial hearing on admissibility, but it is a matter for the prosecution whether they actually do apply in advance or simply leave it to be determined at trial.

by Tim Watkin on October 17, 2013
Tim Watkin

Graeme, his aim will be to salvage his reputation. It won't be a matter of better or worse acquittals - it's just a matter of avoiding a conviction any which way. He needs to be able to say afterwards 'the courts dismissed it'. How they dismissed it means little.

Andrew, bugger re my trademark. I'll just have to use it lots and thereby rely on common usage. It's my new favourite verb.

by Andrew Osborn on October 17, 2013
Andrew Osborn

Six thread here making reference to Len Brown's lack of self discipline.

Sigh! Is that all you've got?

 

by Andrew Geddis on October 18, 2013
Andrew Geddis

Sigh! Is that all you've got?

Not quite sure what this means. What more do you want?

 
by william blake on October 18, 2013
william blake

There is an irony in Rt Hon Banks using a defence of not knowingly committing the offence, when it would a similar defence that Mr.com would use in defending copy-write breaches  by the users of his mega-upload site.

by Rich on October 18, 2013
Rich

He'd be mad to trust a jury on this.

Maybe 40% of Aucklanders in the jury area would be Tories? While you might find that more right-wingers dodge jury service, the defence can challenge anyone too plebian looking. That should leave enough right-wing partisans to lead to a retrial, if not an acquital. By which time the election will have happened and it'll become a bit moot. I'm assuming the actual sentence would be a fine or home D at the worst, not actual jail?

Also, wouldn't a judge-only case be more likely to get listed before the election?

 

by Graeme Edgeler on October 18, 2013
Graeme Edgeler

Also, wouldn't a judge-only case be more likely to get listed before the election?

In all likelihood, no. It's an indictable trial whether there's a jury or not. There is a difference between the delay for indictable trials and summary trials, but I can't see a reason that indictable jury vs indictable judge-alone would be different, unless it meant the difference between a 2 day trial and a 3 day trial and fitting this in.

by Peter Green on October 18, 2013
Peter Green

Now, if this story is true, then Banks hasn't committed the relevant offence, because he didn't have the requisite "knowledge" that the return was falsely calling donations "anonymous" when in fact (and law) they weren't.

I don't get why he needs to have read the forms to know that they had the false anonymity claims. If he was going around asking for "anonymous" donations, then surely he knew that's how they would have been recorded?

by Peter Green on October 18, 2013
Peter Green

Sorry, not sure how I doubled up there.

[ed: all fixed.]

by Marcelo Rodriguez Ferrere on October 22, 2013
Marcelo Rodriguez Ferrere

Judicial review it is. On the grounds of "a myriad of factual inaccuracies in the judgment and also [...] the legal decisions are flawed." So, in other words, everything. At times like this, I agree with you Andrew - the line between appeal and review is dangerously thin. It would be interesting to see what "legal decisions" he believes are flawed - it was a pretty discretionary decision that will get a lot of latitude in the HC.

by Graeme Edgeler on October 22, 2013
Graeme Edgeler

It would be interesting to see what "legal decisions" he believes are flawed - it was a pretty discretionary decision that will get a lot of latitude in the HC.

Legal decisions might include an argument that "knowing that it is false" means "knowing that it is false" and that wilful blindness isn't enough.

by Andrew Geddis on October 23, 2013
Andrew Geddis

Legal decisions might include an argument that "knowing that it is false" means "knowing that it is false" and that wilful blindness isn't enough.

Maybe. But has anyone seen a copy of Gittos' committal judgment to see if he considered this a possible ground for a guilty verdict? I've tried to get it off McCready's website, but it won't open for me.
by Andrew Geddis on October 23, 2013
Andrew Geddis

But has anyone seen a copy of Gittos' committal judgment to see if he considered this a possible ground for a guilty verdict? I've tried to get it off McCready's website, but it won't open for me.

Having now managed the technical challenge, I've downloaded the judgment. Gittos does explicitly state (at para 16) that Banks either would have to have actual knowledge or "wifully shut his eyes to the obvious".

by Graeme Edgeler on October 23, 2013
Graeme Edgeler

Having now managed the technical challenge, I've downloaded the judgment. Gittos does explicitly state (at para 16) that Banks either would have to have actual knowledge or "wifully shut his eyes to the obvious".

I thought we knew that. I'm pretty sure that the footage of Judge Gittos using those words was broadcast on TV during news of his announcing his oral judgment :-)

On one reading of the judgment, however, he thinks it possible a finder of fact could even determine actual knowledge (if the judge/jury accepts Dotcom's account of being asked by Banks for two cheques in order to declare them as anonymous).

by Andrew Geddis on October 23, 2013
Andrew Geddis

I'm pretty sure that the footage of Judge Gittos using those words was broadcast on TV during news of his announcing his oral judgment :-)

Which assumes one has a TV, which is not a truth universal.

by PublicLawStudent on October 26, 2013
PublicLawStudent

if there are "one or two public law students out there reading this blog for exam tips", you are being very silly and should stop killing time at once.

*shamefully logs off and goes back to exam study*

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