Or, rather, he hasn't (yet) been found not-guilty of filing a false election return. That probably will happen later.

The news that the Court of Appeal has overturned the guilty verdict against John Banks' for knowingly filing a false election return in relation to his failed 2010 Auckland mayoral campaign is not surprising. To understand why, you need to remember the basis on which he was found guilty.

Essentially, it boiled down to what happened at a lunch held at Kim Dotcom's mansion. Dotcom (along with his wife and then-bodyguard) gave one account of that lunch. Banks (and his wife) gave another. The judge preferred Dotcom's account, according to which Banks explicitly requested that a $50,000 donation be split into two gifts of $25,000. Having done so, the judge ruled, Banks could not then claim he didn't "know" the source of that money ... and so even though he failed to read the donations return prepared by his campaign's treasurer, he nevertheless "knew" it must be false (because the treasurer (who didn't know about the ruse) couldn't have listed Dotcom as the donor, as the law required).

Therefore, Banks' conviction boiled down to credibility - the judge thought he (and his wife) were less trustworthy in their account of that lunch than Dotcom and his wife and bodyguard.

However, after Banks' conviction, his wife turned into a bit of a cyber-Private Eye and managed to track down two American businessmen who she always claimed were also at the fateful lunch. These businessmen then gave affadavits that substantially backed Banks' (and Banks' wife) account of the lunch. It was these affadavits that then formed the main ground for Banks' appeal.

And they provided pretty good reasons for overturning the verdict. They represented the recollections of two non-aligned individuals (i.e. folks without any obvious axes to grind) about the events critical to Banks' guilt or innocence. So, as the Court of Appeal found:

[34] Based on Wylie J’s reasons, we have no doubt that he would have considered the new evidence very important. As we have already explained, the Crown relied for proof of knowledge on what was said at the lunch. Had Messrs Schaeffer and Karnes been called, the Judge may have rejected the evidence of the three principal Crown witnesses about the discussion between Messrs Banks and Dotcom. We note too that some of the evidence on which the Judge relied to discount Mrs Banks’s evidence was neutral; for example, it was not in dispute that Mr Banks spoke to Mr Dotcom about donations at the mansion.

[35] At the risk of labouring the obvious, we are not suggesting that the evidence of the Crown witnesses was in fact unreliable or untruthful. The trial court will establish where the truth lies. Our decision establishes only that the new evidence is apparently reliable and, if accepted, plainly capable of changing the outcome.

Note this last bit. The Court of Appeal isn't saying that these witnesses conclusively prove Banks is innocent of the charges. It simply is saying that if you believe their accounts (which support Banks and his wife) over those of Dotcom and his "team", then Banks is innocent. Which again comes down to a question of credibility - which can only really be assessed by a judge hearing from the various parties at trial. Meaning that there'll have to be a retrial to allow this to occur.

Now, at the risk of being proven wrong yet again, allow me to venture a tentative prediction about the result of that retrial. The thing I've always found incomprehensible about the Banks saga is the question of motive. As I wrote here, for instance:

... one thing still amazes me about all of this. Banks' fall from grace stems from knowingly hiding a donation to a campaign that he lost, from a donor who (whilst he since has become somewhat more notorious) wasn't particularly important or noteworthy at the time. All I can think is that he cooked up a scheme to hide Dotcom's identity in case he won (without perhaps even being conscious that what he was doing was unlawful - did he think he was still playing by the rules he was used to from the more unregulated days he spent in Parliament?), and then forgot to change things when he lost. Which is not to forgive or excuse Mr Banks ... but it just seems such a silly, silly way to end your career in disgrace.

So if a judge in a future trial decides that these new witnesses make Banks' account of what happened at the Dotcom mansion more believable than Dotcom's story, I can accept that.

Comments (16)

by Katharine Moody on November 28, 2014
Katharine Moody

Yes, as to motive, it seemed more clear in respect of the 'anonymous' donation from SkyCity and I found the original decision in this regard puzzling.

by barry on November 28, 2014

For the motive:

The same as he declared the Skycity donation anonymous; he just assumed that they would not want to be seen to be associated with him.


by M Croft on November 28, 2014
M Croft

I see Dotcom is tweeting that there were in fact two different luncheons, and the businessmen were at a different luncheon held days prior to the the one where the donations were discussed. 

by Charlie on November 28, 2014

Andrew - is the onus now on the Crown to pursue the case or is a re-trial automatic?



by Ross on November 28, 2014

The trial court will establish where the truth lies

Unlikely. The trial court will produce a winner and a loser. The truth is incidental and probably won't be arrived at.

by Ross on November 28, 2014

but it just seems such a silly, silly way to end your career in disgrace.

People do silly things all the time. Our current PM has a penchant for communicating with a certain blogger we don't name, despite such communications causing him severe headaches. 

by Andrew Geddis on November 29, 2014
Andrew Geddis

Andrew - is the onus now on the Crown to pursue the case or is a re-trial automatic?

Crown has to decide whether to seek a retrial. They should.


by Ross on November 29, 2014

The Court of Appeal's decision is here.



by Charlie on November 29, 2014

Andrew: Crown has to decide whether to seek a retrial. They should.

Thanks. It will be interesting to see if they actually do.

I suppose there will be those within the Crown team who will be saying "I told you so" because they initially advised it wasn't worth pursuing due to the low chance of obtaining a conviction. Then there's the issue of wasting more of the taxpayers hard earned money.

I'm no lawyer but I was surprised by the original judge's decision, as were many far better qualified than I: That there was enough evidence based on the verbal evidence of the Dotcoms to convict Banks 'beyond reasonable doubt'. I generally stick with 'Hanlon's Razor' in these matter but given the timing, I wonder about that decision...

by Ian MacKay on November 29, 2014
Ian MacKay

Be interesting if the meeting with the two Americans was not the same day that the money was discussed.

"He [KDC] said that the meeting in which donations were discussed was not the meeting the American businessmen were at.

“I think the best evidence of that is that in his own interrogation with police, Mr Banks referred to our discussions about donations . . . Clearly there were discussions about donations and now he says there were none at all.”

by Anne on November 29, 2014

"He [KDC] said that the meeting in which donations were discussed was not the meeting the American businessmen were at.

Somebody will correct me if I have it wrong, but I understood KDC has maintained there were actually two luncheon meetings within days of one another right from the start of this controversy. 

by william blake on November 30, 2014
william blake

Charlie when applying hanlons razor to John Banks do you take into consideration his collection of Ferraris?

by Charlie on November 30, 2014

William:  what?

If you have a point to make, make it.

by william blake on November 30, 2014
william blake

It's a simple question Charles, when you considered Banks case and applied the basic dualism of hanlons razor did you consider Bank's financial acumen? If he's so rich he can't be that stupid, so it only leaves the other possibility, corruption.

or is it like so many people in positions of public accountability who have developed  and stage managed faulty faculties to suit the occasion and warp public perception?

by Alfie West on December 03, 2014
Alfie West

Assuming that the two Americans were present on the correct day, surely the best they are able to offer is a statement that they did not overhear Banks asking Dotcom for split donations? And that's not the same as testifying that it didn't happen.

by Flat Eric on December 05, 2014
Flat Eric

Andrew, re your title and first sentence: is Banks now (before the re-trial but after the successful appeal) 'guilty' or 'innocent' or what? Can he say now 'I am not guilty'?

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