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. 

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.