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High Court agrees to hear Banks' election fraud trial

Justice Paul Heath has agreed to transfer John Banks' election fraud trial from the District Court to the High Court, according to his judgment released late yesterday.

Justice Heath is asking the criminal list judge the trial be fast-tracked because it could have a “material impact” on the upcoming election. Mr Banks is remanded to appear at callover on December 11 where he is expected to enter a plea.

Depending on whether Mr Banks elects trial by jury or sit-alone judge, a hearing date could be available in the first quarter of next year.

The ACT Party leader appeared at the High Court at Auckland last week to challenge the Auckland District Court’s decision he should stand trial for the fraud.

Yesterday Justice Heath dismissed Mr Banks’ application for judicial review of the District Court decision.

Queen’s counsel David Jones argued on Mr Banks' behalf the fact finding was “horribly wrong” by District Court Judge Phil Gittos.

The events stem from an electoral document filed after Mr Banks' failed mayoral bid in 2010. Kim Dotcom wrote two $25,000 donations and SkyCity wrote one $15,000 donation to Mr Banks, all of which were identified as anonymous on his electoral return.

Despite his signature on the five-page document, Mr Banks claims he didn’t prepare or scrutinise the return, so he doesn’t know which donations were marked anonymous.

In October, Judge Gittos found there was enough evidence to send Mr Banks to trial under the Local Electoral Act, which makes it illegal to declare donations anonymous if the candidate knows who made them.

Judge Gittos concluded minimal attention would be required for Mr Banks to know what was in the return. The document is five pages comprising 89 entries.

Originally a private prosecution by retired accountant Graham McCready, the case has since been taken over by the Crown, which is seeking one charge with three indictments, two of which relate to the Dotcom donations and one by SkyCity.

Solicitor General Michael Heron argued at the High Court last week that, over a number of months, Mr Banks encouraged Mr Dotcom’s donations, encouraged him to split his $50,000 donation into two payments, acknowledged the receipt of the donations and made it clear they should be anonymous.

Mr Banks met with Mr Dotcom in April and June of 2010, months leading up to the election.

If Mr Banks is convicted, his Epsom electoral seat will be declared vacant and he will no longer hold office as a member of Parliament.

“It is in the public interest that the senior trial court conduct the trial,” Justice Heath says in his judgment.

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Comments and questions

John Banks has not been charged with fraud. He has been charged with filing an incorrect election expense and donations return related to his unsuccessful campaign for Mayor of Auckland in 2010. That is not fraud. No one lost any money as a result, and Banks did not obtain any money improperly as a result. His opponent, Len Brown, hid all his donations in a trust administered by his Labour Party mates, who subsequently laid a complaint with the Police against Banks. If Banks wasn't now the ACT MP for Epsom, saving us from a Labour/Greens coalition of losers, the complaint would almost certainly not have been laid

True that nobody lost any money, but also irrelevant. All sorts of crimes involve people not losing money. Maybe he gained an unfair electoral advantage, maybe he didn't. But one thing's clear, knowingly or not, he broke the rules. He hasn't denied it.

His argument to date has not even been ignorance of the law. His only defense is that he didn't complete the paperwork he signed off. So presumably his trial will hinge on whether that's true, and if so, whether it means anything.

Sure, the electoral finance act is problematic. Unfortunately for Banks, it's not the rules which are on trial. It's him.

I doubt many would believe Banks forgot about the Dotcom or Casino donations so perhaps his best bet is to plead guilty mitigated by insanity.

How long will it be before we see David Cunliffe in Court for breaking the law under the Electoral Act with his tweeting in the by-election recently?
Will Russell Norman be hauled in for posting completed referendum forms on Facebook and tweeting the images ?