John Banks should have been declared innocent by the Court of Appeal in November last year. But that doesn't mean he should not have been before the courts at all.

Let me start out by saying that I'm not surprised that John Banks has (eventually) been declared innocent of knowingly filing a false return of election donations. I've written on Banks' case quite a bit over the last few years, much of it critical of him and his behaviour, but I've been pretty consistent in saying that I just didn't think he was guilty of the particular offence with which he was charged.

As I said at the end of Banks' High Court trial;

As such, my prediction is that Banks will be found not guilty. Which doesn't mean he didn't do anything wrong - the insight into his campaign practices is not a particularly pretty one. But there's enough legal doubt about a quite loose regulatory regime to allow him to escape criminal liability.

And then following the guilty verdict at that trial;

I was quite surprised at the result. I thought there was enough confusion around Banks' actions and state of knowledge regarding both sets of donations that there was "reasonable doubt" whether he'd committed the relevant offence.

And my reason for thinking that Banks would not be convicted (as well as my surprise that he was) is that I just couldn't for the life of me understand why he'd knowingly file a false election return in relation to the relevant mayoral election campaign:

Having said all that, 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.

Meaning that after the Court of Appeal first overturned Banks' conviction because of new witness evidence and ordered a retrial back in November last year, I said:

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.

Having noted that Banks' (eventual) acquittal meshes with my gut feeling about this case from the outset, let me then note that the means of that acquittal - the Court of Appeal overturning its earlier decision to order a retrial and instead declaring Banks innocent - is a real surprise. The fact the Court of Appeal has done this shows just how badly the Crown stuffed up the previous appeal hearing by not disclosing Dotcom's changed evidence to Banks' defence team. When you see phrases like "mislead the Court" in a judgment, albeit due to "a serious error of process ... attributable to an error of judgment rather than misconduct", you know that things are badly wrong.

There will have to be answers as to just how that came to happen. On Radio NZ this evening, The Attorney-General Chris Finlayson sounded like he was assembling a firing squad to take action once those answers are found:

"Decisions were made by [a person delegated to run the Banks case] on the way in which the case should be conducted and the Court of Appeal has been critical of that aspect of it.

"So [in] broad terms the Crown carries the can, as it were, but there are matters of concern that Crown Law will be wanting to be look at."

So let's give Banks his fair due here. When the State prosecutes anyone - anyone - then it must do so within the rules of fair play and justice. And at the Court of Appeal in November last year, John Banks was let down by the system. That was wrong.

However, let's also not engage in a complete retrospective rewriting of history here. It's important to remember that the Crown's failing at the first Court of Appeal hearing does not mean that holding the initial trial (or even the verdict at that trial) necessarily was wrong!

The evidence that led to the first Court of Appeal hearing (and its quashing of the original conviction) only became available after Banks' trial. John Banks' wife did heroic work digging out new witnesses from the USA - but really, the defence team should have had them and their statements before the High Court when Banks first was tried. And absent that witness evidence it was quite open to a judge to decide that Dotcom and his cronies were more trustworthy witnesses than John Banks and his wife.

So, yes the Crown badly stuffed up by not telling the Court of Appeal that Dotcom's story was bouncing around in light of the new witness accounts. And so Banks should have been fully acquitted at that first Appeal hearing in November. But there was nothing wrong with the court processes up until that point in time.

Well, what about the Crown's decision to bring charges at all - or, rather, to take over Graham McCready's private prosecution of Banks. Wasn't that a mistake?

Here I have to say something that really requires me to reach for the bold and italics.

The fundamental reason why John Banks was put on trial was that he signed a return of his electoral donations for the 2010 Auckland mayoral election that was false.

And it was false irrespective of whether Kim Dotcom was lying his arse off about when he had lunch with Banks and what was discussed on that occasion and so what Banks knew about the $50,000 he donated. We know the donation return was false because Justice Wylie tells us so in his reasons for finding Banks guilty in the High Court (at para 100):

For present purposes, I was satisfied beyond reasonable doubt that the electoral return was false in a material particular, because it declared the Sky City donation as anonymous, in circumstances where Mr Banks knew that SkyCity had made a donation to his mayoral campaign, and where it could reasonably be inferred that Mr Banks would have known that the donation was for a sum in excess of $1,000.

Now, as it happens, Wylie J went on to find Banks not guilty of knowingly filing a false return in relation to this Sky City donation because Banks didn't read the return put in under his name and so didn't realise that his treasurer had wrongly labeled it as being "anonymous". But let's not whitewash what this finding that Banks' return was false means.

First of all, it means Banks did break the law when he filed his donations return. Under the Local Electoral Act (as it then stood), inadvertently filing a false return was an offence. It's just that this particular offence had to be prosecuted within six months of the return being made - so Banks escaped liability for his actions on a technicality. A technicality, it should be noted, that has since been closed off.

(That was the same conclusion that the Police came to in respect of Banks' donation return - it was false and so unlawful, but unwittingly so and thus unable to be prosecuted.)

[Update: The Independent Police Conduct Authority has now released its report into this Police investigation. This report fully endorses that investigation's conclusions and further tells us that:

[Mr Banks' Treasurer] outlined to Police what his understanding of ‘anonymous’ was, namely that if a person had donated money but they wanted to stay anonymous then it could remain anonymous. [The Treasurer] acknowledged that he had never read the Local Electoral Act 2001 (see paragraph 23 below) but had read the section on the return relating to donations (see paragraph 9). He was comfortable that the form had been completed accurately and thoroughly in accordance with the requirements set out. 

While Mr Banks ultimately signed the return he did not check the information provided at that time, simply asking [his Treasurer] whether he could rely on him to make sure it was true and correct. [his Treasurer] assured Mr Banks he could. 

So when you read in the comment thread below that Mr Banks may have taken "all reasonable steps to ensure that the information [in his return] was accurate", remember than Mr Banks employed a Treasurer who didn't know the relevant law arounddonations, and then relied on him to ensure that the law was complied with. I am quietly confident that this would not amount to a defence under the relevant statutory provision.]

Second, filing a false return raises the question of whether Banks committed the far more serious offence of knowingly doing so. That question then hinged on the veracity of the various individuals who made claims about various issues to do with Banks' fundraising practices - the campaign treasurer who claimed Banks did not read the donation return before signing it, for example, or the rich German donor who said Banks told him exactly how to structure his donation and then thanked him for it afterwards.

Once these matters were put before a Court by Graham McCready, the judiciary quite rightly said that the proper way for the truth of those claims to be assessed was by a criminal trial. Had Banks' defence team managed to get all the relevant witnesses to testify, then he (probably) would have been acquitted at the High Court. But it didn't, and so he wasn't, and that meant the Court of Appeal had to be brought into the picture - at which point the Crown really did stuff up.

So I can see how John Banks fighting a criminal trial against charges he was not guilty of (and which I didn't ever really think he likely had committed) would be to go to "hell and back" (in his words). And to have the Crown then torpedo your chance at clearing your name (in a criminal sense) by failing to tell the Court of Appeal that the chief witnesses story now is inconsistent with their case is shocking.

But lets also not forget why all this happened. John Banks filed a false return of election donations for the 2010 Auckland mayoral election. If he hadn't - if he'd just taken the time to read the papers being submitted under his signature - then things would have been quite different.

Comments (14)

by Raymond A Francis on May 20, 2015
Raymond A Francis

Or rather than organising his donations like that used the "so called" Blind Trust used by Len Brown and ex-Labour Leader David Cunliffe 

 

by Andrew Geddis on May 20, 2015
Andrew Geddis

@Raymond,

Agreed. As I noted here after Banks' original conviction:

I'm conflicted about how outraged I should be at Banks' actions. Yes, Banks is guilty of deliberately trying to hide from the world the identity of donors to his campaign that (for whatever reason) he thought might prove embarrasing down the track. This is a bad thing for politicians at any level to do. However, Banks' opponent at the relevant mayoral election was also busy hiding from the world the identity of those who funded his campaign ... he just did it more cleverly by utilising a trust as a conduit. So is the real issue here that Banks just didn't obey the letter rather than the spirit of the law?

That said, Banks' claim on Morning Report today that he set up his fundraising for the 2010 election in order to be "more transparent" loses a bit of credibility when the return of donors that was meant to allow for that transparency turned out to be false ... .

by Moz on May 20, 2015
Moz

I'm not surprised that John Banks has (eventually) been declared innocent

I didn't think our courts did that? Isn't the best you can get "not guilty"?

by r0b on May 20, 2015
r0b

Hi Andrew.  What legal obligations are entailed by signing a document?  Doesn't the signee assume responsibility for the contents / obligations of the document?  If not, what does signing a document mean?  Can I sign anything I like and it doesn't matter? Simple questions perhaps, IANAL etc...  Cheers.

by Andrew Geddis on May 20, 2015
Andrew Geddis

@rob,

There's no simple answer to that - different legal consequences follow from signing different sorts of documents. So I can't give the advice you want, except to say the best rule of thumb is never sign anything you don't know the contents of.

The point here is that by signing the donations return in question, Banks was attesting that it was a true reflection of the donations he had received. We know as a matter of fact that it was not. He was then subject to two possible consequences:

(1) If he unwittingly signed a false return, then he could have been convicted and fined  if charged within six months of the return (unless he could prove he did everything he could to avoid the error);

(2) If he knowingly signed a false return, then he could have been convicted and jailed for up to two years.

The former consequence was avoided because the false return was noticed too late. The latter was avoided because there was insufficient evidence to convict.

by r0b on May 20, 2015
r0b

Thanks Andrew.  Not surprised that the general case is complicated, but you have made the Banks case perfectly clear.

by Anne on May 20, 2015
Anne

"... filing a false return raises the question of whether Banks committed the far more serious offence of knowingly doing so."

The evidence might not have fulfilled the 'beyond reasonable doubt' criteria, but there is no doubt in my mind John Banks knew only too well those cheques came from Kim Dotcom. What other reason could there be for Dotcom to split his donation in half and submit two cheques for the same amount?  It was because Banks requested two cheques so they would qualify for "anonymous" status. I also doubt he actually sighted the cheques, because he would have made sure they didn't pass through his hands. That way if the shit hit the fan (which it did) he could then deny all knowledge of them (which he did).

Be assured this practice of splitting donations to fulfill anonymous status was widespread in the ACT Party during the 1990s and early 2000s at the least. And guess who was ACT's financial adviser and treasurer during those years? One of Banks' strongest supporters, Mr John Boscawen. 

 

by Christopher Diack on May 22, 2015
Christopher Diack
Regarding the falsity of the return your argument is that Banks is guilty of an offence he was not charged with under the old provisions of s134(2) of the Local Electoral Act 2001 as it stood in 2010 prior to the most recent changes.I am not sure that Wylie J is right about the falsity.  He did get a few things wrong.Nevertheless, let’s forget about the falsity issue and the time limit for a moment.  The suggestion is simply wrong.

The key thing to note is that s134(2)(a)&(b) are obligations on the defendant at trial not the prosecution to met on the balance of probabilities.

While the Police (or the Crown) can form a preliminary view pre trial they simply cannot foresee the future; they are not in a position to determine how the defendant might satisfy his or her legal and evidential obligations at trial. 

You cannot say a trial (but for the limit time) would find Banks guilty.  Frankly the Police and Crown were incompetent as to the evidential requirements for their own case, I am not sure they are in a fit position to assess Mr Banks evidential and legal obligations under old s134(2)(a)&(b).

But don’t take my word for it: the very argument you make was raised by NZ Herald and Labour Party in their application to the Ombudsman for Mr Banks police statement.  Unlike Wylie J, Prof Ron Patterson (not unlearned in the law) did consider the argument and stated the perfectly orthodox position.  He said:

“22. The requesters were both of the view that the offence in section 134(2) of the Local Electoral Act 2001 was proved to have been committed. However, that is not the case.

While the Police concluded that the elements of section 134(2) were met, the offence was one of strict, not absolute, liability..... Accordingly, the charge could be defended by proving that there had been no intention to mis-state or conceal the facts, and that all reasonable steps to ensure that the information was accurate had been taken. “ 

http://www.ombudsman.parliament.nz/system/paperclip/document_files/docum...

 

As I said the police investigation was inadequate. I would not trust the legal judgement on the issue of 134(2)(a)&(b) of the officers involved in this investigation or the legal section of Police National Headquarters.

The less said about Wylie J the better.

As for your assertion that the defendant should have brought the evidence of the American businessmen to the trial this is also false.  In this case it was Crown’s obligation to prove its case beyond reasonable doubt, not the defendant’s to prove his or her innocence to any standard.  Yet in fact that has what has had to happen.

From the Court of Appeal finding last year that the evidence of the American businessmen was not only not new, but was available at the trial, is the clear implication that it was available to a reasonable Police inquiry and to a reasonable Crown Law assessment of the case when they took over the prosecution.

The opening line of the Crown’s submission to the trial was that there was “a lunch in early June.”  That was it.  The Crown made no submissions regarding the date but was driven to 9 June 2010 by its witnesses.  As the Court of Appeal noted orally at the first hearing and in writing in its second judgment, the Lunch was always central to the Crown theory of the case (all other evidence both direct and circumstantial was insufficient to convict)  Yet there is no evidence of the Police inquiry doing any other detective work other than taking the statements regarding the lunch.

The lunch was the “who, what, when, and where” of the alleged crime.   It was the ‘body’ and ‘murder scene’ of the ‘homicide’ in TV land.

The facts regarding the presence or otherwise of Mr and Mrs Banks on 9 June 2010, the actual date of the lunch on 5 June 2010 and the presence or otherwise of independent witnesses at 5 June 2010 lunch was available to the Police right from the start.  They only had to ask for documentary evidence of the whereabouts of Mr and Mrs Banks on the days in question or in early June (pre the deposit of the cheques by an employee of Mr Dotcom on 14 June 2010 directly into the campaign bank account).  Regarding the Americans being present there on 5 June 2010, all they had to do was deploy google.  Further, according to Mr Dotcom the Police had in their possession seized computer records that were maintained by his security team of the comings and goings at the mansion for that period.

Crown Law have publicly admitted they never reviewed the Police file prior to the Police decision not to prosecute (that in itself is damning incompetence: this case involved a Minister and MP) but they had access to the full file when they took over the prosecution.  It never occurred to them that core elements of the Crown case were utterly deficient.

One significant purpose of the power of the Attorney General (here read Solicitor General) to take over private prosecutions coupled with the power to stay proceedings is to ensure justice is done.  

The power to take over a private prosecution pre-supposes that such a prosecution can be an abuse just as much as it can be evidence of Police wrong doing in not taking the prosecution in the first place.   It is not merely mechanical power to take a matter to trial.  The Solicitor General should have weighed up the return issue (Local Electoral Act 2001) as against the integrity of the results of an election under the Electoral Act 1993. There is no evidence that the Solicitor General actually asked for the obvious deficiencies in the Crown’s evidence to be remedied prior to trial.  Nor is there any evidence yet that he considered that Mr Banks might be the subject of a political conspiracy orchestrated by Mr Dotcom to overturn an election result i.e. that the prosecution was an abuse.  

Instead, the prosecution seems to have been conducted by an automaton. This is compounded by decisions requiring judgement of the Crown that the Court of Appeal found amounted to a miscarriage of justice.

How is it possible for the Police inquiry, Police legal, Crown Law and Paul Dacre QC to have access to the full police file and yet three weeks ago the Solicitor General could not even explain the Crown’s theory of the case to the Court of Appeal.    On what basis did the Solicitor General conclude in January 2015 (with the Butler memo on his desk and knowing that Mr Banks legal team did not have it) that there was reasonably sufficient evidence to conclude, that Mr Banks should  face retrial.  Then only months later he was unable to explain his own case to the Court of Appeal.

by Andrew Geddis on May 22, 2015
Andrew Geddis

@Chris,

You say Mr Patterson said:

While the Police concluded that the elements of section 134(2) were met, the offence was one of strict, not absolute, liability..... Accordingly, the charge could be defended by proving that there had been no intention to mis-state or conceal the facts, and that all reasonable steps to ensure that the information was accurate had been taken.

True! But given that John Banks didn't even read the relevant return before he signed it, I'm 100% happy to say he didn't have a defence to s.134(2). You can disagree with me, of course, and as there'll never be a trial on the issue there's no way to tell which of us is right. But I'm quietly confident that I am.

You then say:

As for your assertion that the defendant should have brought the evidence of the American businessmen to the trial this is also false.  In this case it was Crown’s obligation to prove its case beyond reasonable doubt, not the defendant’s to prove his or her innocence to any standard. 

But the Crown's case at trial was that the lunch happened on July 9. As the Court of Appeal says (para. 10):

Proof that the lunch was held on 5 June did not emerge until the defence disclosed its hand at the close of the Crown case, leaving something of an evidential vacuum about the intervening period. 

So why exactly was it the Crown's responsibility to get evidence from two witnesses to this 5 June lunch, when it was the Defence that made this into the critical meeting? And as the Court of Appeal further says (para 27):

Mr Jones sought to persuade us that the new evidence [being the accounts of the US witnesses] was fresh. To that end Mrs Banks was called before us for cross-examination on her affidavit. She frankly acknowledged that she could have made the same inquiries before trial but did not think it necessary. ... It seems obvious that the importance of the evidence was not adequately appreciated by Mr and Mrs Banks or their legal advisors, perhaps because they assumed too readily that the Crown witnesses could be discredited. There is no evidence that any substantive inquiries were made. The evidence is not fresh. 

So - bad call on the Defence's part, I would say. They gambled that they wouldn't need these witness accounts, and they lost.

You then conclude by saying:

How is it possible for the Police inquiry, Police legal, Crown Law and Paul Dacre QC to have access to the full police file and yet three weeks ago the Solicitor General could not even explain the Crown’s theory of the case to the Court of Appeal. On what basis did the Solicitor General conclude in January 2015 (with the Butler memo on his desk and knowing that Mr Banks legal team did not have it) that there was reasonably sufficient evidence to conclude, that Mr Banks should  face retrial.  Then only months later he was unable to explain his own case to the Court of Appeal.

No idea! I'm not defending the Crown's behaviour at the Court of Appeal in any way, shape or form. But to say the Crown did bad late in the picture does not mean that Mr Banks was a purely innocent victim of some conspiracy from the get-go. And that is all.

by Christopher Diack on May 22, 2015
Christopher Diack

Mr Banks scrutinised the expenses portion of the return very closely where spending cap applied.  He did not scrutinise the donations portion.  But in the real world in a big complex campaign there is little point in doing so.  According to Crown evidence the return was compiled by an experienced and honest campaign treasurer for a campaign that had a turnover of $2million plus with thousands of transactions.  One view is to say that Mr Banks made reasonable arrangements to ensure that the identity of anonymous donors remained unknown to him up and until the return was signed.  The test of what is reasonable in the circumstances depends on what similar sized campaigns would do in the same circumstances.  Wylie J heard no evidence on this at all.

Objectively the reading or non reading of the donations portion of the return would not have resulted in the detection of any error but for one donation banked personally by Mr Banks and that was correctly recorded.

Regarding the date of the lunch you are wrong.  The Crown submission at trial did not say the lunch was Wednesday 9 June 2010.  The Crown had no date.  They hedged on the date in their closing submissions too.  It was the Crown Dotcom witnesses that offered a date of 9 June 2010 (the date on the cheques).  This assisted the Crown’s theory of one single transaction (as Miller J put it at the first CA hearing).   The Defence offered the only documentary evidence in addition to Mrs Banks original statement that the lunch occurred on a Saturday in early June 2010 to show it must have been 5 June. 

As Miller J observed orally in the first CA hearing, the evidence if accepted tends to support Mr Banks contention – mere private solicitation of the donation 5 June 2010.  Cheques issued 9 June.  Not one transaction.

The Crown evidence at the HC trial was so bad that it presented evidence from Mr Dotcom’s accountant that he personally banked the cheques in Queenstown to make the donation anonymous.   It also presented its own documentary evidence that the cheques were banked on 14 June 2010 in Albany Auckland.  It was the Defence who pointed out that the Crown’s own evidence showed when and where the cheques were deposited.

The Defence showed the depositor was a staff member of Mr Dotcom.  Interestingly regarding anonymity, apart from the total of each deposit none of the details of the depositor were completed by Mr Dotcom’s staff on the pre printed campaign deposit slips.  Which meant short of ordering copies of the cheques there is no way Mr Banks treasurer would identify the depositor: Megastuff Limited (a company neither Mr Banks nor his treasurer had ever heard of).

According to the Crown case at trial how could Mr Banks ring Mr Dotcom and separately his bodyguard within two or three days of the lunch (now established as 5 June) to “thank them for the donation” and confirming its receipt, when it had not been deposited by Mr Dotcom’s staff member into the banking system until 14 June into a bank account that the Crown accepted was not operated by Mr Banks but his Treasurer.

As I said, one needs to be careful clinging to the wreckage of Wylie J’s decision.  I don’t think his honour will regard it as one of his finest. 

The inadequacies in the Crown case were pretty obvious at the trial.  And those inadequacies stemmed from the police investigation which was correct in its assessment about the prosecution but still all-in-all not rigorous enough. Nor is there any evidence that the Solicitor General assessed the adequacy of the Crown case after taking over the prosecution.   It was the inadequacy of the original investigation that lead to the spectacle the Solicitor General admitting at the second CA hearing three weeks ago that whatever his case was – it would depend on what the Dotcom witnesses might or might not say but he could not say what it was.  All he would say is that he was the last person to endorse the credibility of Mr Dotcom.

 

by Andrew Geddis on May 23, 2015
Andrew Geddis

@Chris,

One view is to say that Mr Banks made reasonable arrangements to ensure that the identity of anonymous donors remained unknown to him up and until the return was signed.

Yes. That is a view. But its not a very convincing one. Because it doesn't tally with the evidence from a number of people from SkyCity who testified that they personally gave Mr Banks a cheque for $15,000 - which Wylie J found beyond reasonable doubt meant Mr Banks knew that they had given him a reportable donation, meaning it could not be treated as "anonymous" in his campaign return, but there was no effort made to communicate this information to his campaign Treasurer.

Thus, Mr Banks didn't make "reasonable arrangements to ensure that the identity of anonymous donors remained unknown to him up and until the return was signed." The manner in which the SkyCity donation was received demonstrates this - if he wanted to create a strict divide between his asking for money and his campaign receiving money, he shouldn't have been handling cheques at all. And then he signed "his" return without bothering to check to see how any donations he personally had handled (like the SkyCity one) had been treated by the Treasurer. So, like I say ... I'm quietly confident that I am right to say Mr Banks committed an offence against s.134(2).

As for re-litigating the decision in the High Court about Mr Banks knowingly making a false return (in breach of s.134(1)), this strikes me as a bit pointless given that I have said I found it "surprising" from the outset. Note, however, that even after the new witness testimony was uncovered, the Court of Appeal still ordered a retrial on the evidence - so Wylie J's judgment perhaps wasn't as completely flawed as you suggest.

by Christopher Diack on May 23, 2015
Christopher Diack

You have the SkyCity donation a bit wrong.  The SkyCity donation is interesting it also points to an inadequate police investigation.

Mr Banks attends a meeting on Council business at SkyCity with a Council bureaucrat.   No discussions about the campaign or donating.

During the meeting a sealed skycity envelope is pushed across the table.  Banks is aware it is a donation but not the quantum.  There was no prior contact between SkyCity and Mr Banks regarding this particular donation or contact after.  SkyCity had previously indicated to Mr Banks that they were considering a donation to his campaign and Mr Browns campaign.   There was prior telephone contact between SkyCity and the Treasurer regarding who to make the cheque out to.  None of this was known to Mr Banks.  We know there was prior contact because Skycity re-issue the cheque with the correct name of the campaign account as a result of their contact with the Treasurer.

Mr Banks returns to his mayoral office, hands the sealed envelope to his Media Handler (retained by his campaign) and he asked that it be given to the Campaign Treasurer.   Out of sight and unknown to Mr Banks the Treasurer was on the premises.  The Media Handler hands the sealed envelope to the Treasurer who was expecting a contribution from them from contact with Skycity but had no idea about the quantum until he opened the envelope.

The Campaign Treasurer deposits the cheque.   The Treasurer gave evidence that consistent with all other donations received this one was not discussed with Mr Banks nor was he aware Mr Banks had carried the envelope.   He also gave evidence that he telephoned Skycity and ask them how they wanted the donation to be treated.  He said where the identity of the donor was obvious to him (and unknown to Mr Banks) he would make contact with them to ascertain whether they wanted their donation recorded as anonymous.

Skycity said they have no record or recollection of that telephone call.  Their CEO testified that the issue of whether to make campaign donations anonymous or not was never discussed at Skycity; they never turned their mind to it.   A former junior employee said that they were very clear that they wanted it returned from them.  However his clarity might have had something to do with him being in the witness box at a criminal trial on precisely that issue.  By the way he wanted to give his evidence in secret he was concerned about how being associated with the trial might affect his reputation and the reputation of his new employer.

It is possible if the CEO of SkyCity is correct that in saying that the status of the donation was never discussed that whomever the Treasurer spoke to did not understand the legal significance what they were being asked.  Alternatively the Treasurer (who was a Crown witness and the Crown presented in other matters as reliable and honest) was mistaken in his recollection of the telephone call.

The question is:  in a situation where it is either reasonable or unreasonable to rely on an experienced campaign treasurer who is an accountant,  what is it about the Skycity donation (as opposed to the many other donations) that should have put Mr Banks on alert to look through the donations return or stuck in his memory.  Why say, would the SkyCity donation require this; but not the other donation that Mr Banks personally banked into the account (that were correctly recorded).  Mr Banks had no recollection of the meeting with Skycity or carrying the envelope at the time of return or later until the Defence got a statement from the Media Handler.  It was this statement that allowed Mr Banks to piece together what happened.  The lack of recall of the meeting with Skycity on Council business is not surprising: it was one of dozens with them; one of in excess of 1300 meetings he attended over that term as Mayor of the biggest and busiest City.

Interestingly the Police arranged twice to interview the campaign’s Media Handler and cancelled twice.  Had they interviewed him they might have discovered his role in the SkyCity donation if they had asked about it.   Much more importantly they might have DETECTED that he was with Mr Banks on Wednesday 9 June 2010 at lunch in Otahuhu and could point to a Banks campaign media schedule published on the web that showed this – which the police could have googled themselves.  They might have also talked to the Otahuhu Community Constable who was at the lunch with Mr Banks in Otahuhu to double check.   But of course this assumes that your assertion that the Crown (and the Police investigators) had a theory that the lunch was on 9 June 2010.   As I have said: they didn’t.

Talking of how reasonable it is to rely on accountants;  Mr Dotcom’s ‘9 June 2010 cheque writing’ accountant (whom I mentioned in the above post where he claimed to deposit the donations in Queenstown) gave evidence that he personally witnessed Mr and Mrs Banks arriving at the Dotcom mansion on 9 June 2010 in their car.  He also gave evidence to the High Court that it was impossible for Mr and Mrs Banks to be at lunch at the mansion on Saturday 5 June 2010.  This is because he never works on Saturdays he always plays soccer on Saturdays; and he would have been playing soccer on Saturday 5 June 2010 and thus physically he could not be at the mansion on that date.  Mr Dotcom gave evidence that he dismissed him from his employ because he ‘did not trust him’.  The Dotcom accountant gave evidence that Mr Dotcom had owed him $20k in a wages dispute with Mr Dotcom and after 18mths he was paid in full by Mr Dotcom, this was 5 weeks prior to the trial.

He helpfully gave evidence that he operated the Megastuff Ltd bank account and had online access to its bank account.  He would use this to advise Mr Dotcom when Megastuff Ltd needed more money.  Mr Dotcom’s bodyguard (who was a long term friend of Mr Dotcom’s accountant) said in his police statement that Mr Dotcom was eager to have Mr Banks confirmed that the cheques had been cleared.  He gave similar evidence at the trial.   Why not simply ask Mr Dotcom’s accountant or the employ who deposited the cheques.  Even on His Honour’s theory of the case that these confirmation calls took place within a couple of days of the lunch, his Honour never explained how Mr Banks would actually know the cheques had been cleared.  Wylie J appears to accept the evidence that Mr Banks had no access to the Bank account information; nor does he question the campaign Treasurer’s statement that he never discussed donations with Mr Banks.  Perhaps it falls into the “many contradictions of evidence in this case that I don’t have to resolve” category that Wylie J so helpfully created for himself.

Show me Andrew where the police report on the investigation where the police make a conclusion about the credibility of Mr Dotcom’s accountant when the police’s own search warrant of the Bank where the campaign account was held, produced evidence of where and when the Dotcom cheques were deposited.

And talking about honesty and honest accountants, in the Butler memo Mr Dotcom claims that Mr Banks campaign Treasurer (a co operative Crown witness) was at the lunch in Coatsville on 9 June 2010.   The Treasurer gave a statement to the Police and evidence to the High Court that he had never met, and never heard of Mr Dotcom until the raids in 2012 and the media coverage of them.  When the Solicitor General was considering the evidential sufficiency to retry Mr Banks in January 2015 with the Butler memo on his desk; did he ask that enquires be made of the Campaign Treasurer of his whereabouts on 5 June 2010 and 9 June 2010 and for documentary evidence to support this.  The campaign Treasurer was always going to be a Crown witness again in a second trial.  A reasonably competent prosecutor and indeed a prosecutor who has used the Attorney General’s power to take over a private prosecution with a common law duty to prevent an abuse of prosecution would surely have done this.

On your incompetent defence issue, Wild J at the first CA hearing put to the defence that it was essentially relying on its own Counsel incompetence as a grounds allowing the American evidence in.   In that high ceilinged temple of justice in the number one Appeal Court room you could feel the electricity in the air as David Jones QC offered to provide the Court with an affidavit and to stand aside.   You have never seen three judges back off more quickly. They wanted to get to the substance.  It was surprising how detailed an understanding they had of the facts of this case.  While I cannot read their minds from the line of questioning it was clear that they probably thought something had gone 'off the rails' at the High Court.

When they issued the standard remedy in the retrial order I suspect they had it in mind that the Solicitor General would sort the issue on his own initiative.

by Graeme Edgeler on May 23, 2015
Graeme Edgeler

Wild J at the first CA hearing put to the defence that it was essentially relying on its own Counsel incompetence as a grounds allowing the American evidence in. In that high ceilinged temple of justice in the number one Appeal Court room you could feel the electricity in the air as David Jones QC offered to provide the Court with an affidavit and to stand aside. You have never seen three judges back off more quickly. They wanted to get to the substance.

I attended the appeal. That is not how that exchange came across to me.

by Andrew Geddis on May 24, 2015
Andrew Geddis

@Chris,

Pretty much everything you say about the SkyCity donation is irrelevant. Once Mr Banks knew that SkyCity had made a donation to him, then it could not be listed as anonymous. It is then beside the point whether the Treasurer tried to contact SkyCity to see how they wanted the donation recorded - once Mr Banks knows it's been received, there is no choice in the matter. So the onus is on Mr Banks to make sure his Treasurer knew that the donation could not be anonymous, as he (Mr Banks) knew where it came from, but he didn't do this. That's a sloppiness in the campaign practice - and s.134(2) is there precisely to vest a consequence on candidates when they run sloppy campaigns.

You are in essence arguing that Mr Banks may not have been convicted of breaching s.134(2) because even though he didn't tell his Treasurer he had received at least one reportable donation in person and then didn't read the list of donors before signing it, nevertheless "all reasonable steps to ensure that the information [in his donation return] was accurate had been taken". I am quietly confident that this is improbable.

You can have a last word if you want, but I'm over this issue now.

Post new comment

You must be logged in to post a comment.