Nothing except a battle lost can be half as melancholy as a battle won

John Banks will have a full trial on the charge that he knowingly filed a false donation declaration after his 2010 Auckland mayoral election defeat. That's not that surprising.

So John Banks is going to have to face his day in court (actually, more likely his week or more in court, given the number of witnesses that will be heard).

His attempt to have the charge against him - that he knowingly filed a false return of donations following the 2010 Auckland mayoral election - thrown out by the judge has failed. In and of itself, that really isn't so surprising.

The attempt, under the old s.347 of the Crimes Act, essentially required him to convince a judge that the Crown's case was so weak, with the evidence underpinning it so tenuous, that it would be unsafe to allow it to go to trial (as any possible conviction following that trial would be plain wrong). That then requires the judge to consider the Crown's case at its absolute strongest and ask, "if the Crown is able to prove all of this at trial, does it provide safe grounds for a conviction?"

And when you look at the Crown's case against Banks and assume that it can prove everything it alleges, then things look pretty bad for him. There is evidence that Banks was personally given a $15,000 cheque from Sky City (and even asked for a new one to his campaign account, when the first was written out to him personally). There is evidence that Banks personally requested a donation from Dotcom in a particular form (explicitly to allow him to treat it as anonymous) - and then thanked him afterwards for giving it, as well as refusing to help Dotcom following his arrest on the basis of how it might look given that donation's existence. And yet the donation return he signed lists all of this money as coming from sources that he "did not know".

Of course, that's taking the evidence that the Crown will present at its very strongest. Whether it holds up at trial is another matter. And against it is the evidence from both Mr Banks and his campaign treasurer, Mr Hutchison, that when it came to looking over the return of donations, Mr Banks did not really examine them at all. Meaning that, even if the return falsely called these donations "anonymous", Mr Banks may not have had actual knowledge of the error.

And that was the point that Mr Banks really hung his hat on in his attempt to have the case thrown out. Because if both Mr Banks and Mr Hutchison are saying that Mr Banks just didn't read the donation return, how on earth can the Crown safely prove he knew what it said was wrong? And if Mr Banks didn't "know" this, then he hasn't committed the offence alleged.

The Judge (Justice Wylie) wasn't buying that argument just yet. Certainly, the Crown will have to show that Mr Banks had the requisite "knowledge" that the return was wrong in order to get a conviction. However, he was not prepared to treat Mr Hutchison's evidence about what Mr Banks did (and didn't do) when they looked over the donations return together as determinative of that matter. There's a couple of reasons why not.

One is that Mr Hutchison's claimed memory of Mr Banks' examination of the donations return may be inaccurate, and in fact Mr Banks did look at it more closely than is said. That's an issue of witness credibility, and that's the sort of thing that only really gets assessed at trial when the witness gives evidence on the stand.

The second wasn't actually addressed in this decision. Because let's say it is true that Mr Banks really did not read the return of donations. But let's also assume (purely for the sake of a hypothetical) that Mr Banks deliberately failed to tell his treasurer that he knew full well who was donating him money, so that the treasurer could go ahead and list those donors as being "anonymous". (Maybe Mr Banks just failed to understand the law here, or maybe he was playing fast and loose with the rules.) In which case, can it be said Mr Banks "knew" that the return his treasurer drew up was false whether or not he read it, because it would have to fail to disclose the fact he knew the identity of some of his donors?

Now, I don't know whether this sort of "wilfull blindness" will be enough to sustain a conviction under the Local Electoral Act - as I say, the Court decided that there was sufficient evidence that Mr Banks might have had "actual knowledge" that the return was false to allow the trial to continue on that basis. But I do wonder if it more accurately reflects what happened here - if Mr Banks' apparent desire to stay separate from the details of where the money for his campaign came from may have tipped over into him failing to inform his fundraisers of what he himself knew about that process.

In any case, it's going to make for some fascinating courtroom theatre later this year. So purely from the perspective of a selfish voyeur (in the sense of "an obsessive observer of sordid or sensational subjects"), I'm glad Justice Wylie didn't put it to a premature end.