How John Banks tries to avoid trial, media
"The same duty of care should be expected for these electoral returns as for directors of public companies. Banks should join directors of failed finance companies."Featured comment
The media circus that descended upon the High Court at Auckland today was enough to make the solicitor general use the jurors’ door, which empties on to a side street.
Meanwhile, the media waited for MP John Banks, who unsuccessfully attempted to slip by, to emerge from the courthouse. They caught up with him down the street, where he restated his innocence over allegations of election fraud.
The ACT Party leader appeared at the High Court to challenge the Auckland District Court decision he should stand trial for the fraud.
Justice Paul Heath heard arguments today and is reserving judgment. He plans to make a decision on Mr Banks’ application for judicial review by early next week.
The fact finding by the district court was “horribly wrong,” which had erroneously led to the decision for trial, Queen’s counsel David Jones argued for Mr Banks.
The events stem from an electoral document filed after Mr Banks’ mayoral bid in 2010. 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.
Last month District Court Judge Phil 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.
Originally a private prosecution by retired accountant Graham McCready, it 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.
Mr Jones says the heart of Mr Banks’ claims in the High Court looks at three simple questions: What was in the electoral return, was it false and did Mr Banks know it was false on the night the document was transmitted in December 2010?
He further argues the evidence heard at District Court focused on the months leading up to the election, not the night the return was transmitted. Only one person's statement submitted into evidence related to the night the electoral document was transmitted when Mr Banks was actually in the room with the document.
A “trusted” member of Mr Banks campaign prepared the document and gave evidence Mr Banks might have glanced at it but didn’t read it. The document is five pages comprising 89 entries.
Mr Jones says Judge Gittos elevated the assertion from a “possibility” to an “actuality” when he assumed Mr Banks glanced at it.
“The judge cannot elevate the evidence above what it is,” Mr Jones told Justice Heath.
Judge Gittos concluded minimal attention would be required for Mr Banks to know what was in the return. However, Mr Jones argues the judge himself made “elementary errors” in counting the number of entries when giving his decision. The judge only stated 67 entries in his decision, omitting an entire page of 22 entries when he was analysing the document himself.
The Crown says the facts in dispute are immaterial to its case.
Solicitor General Michael Heron argued that over a number of months Mr Banks encouraged Dotcom’s donations, encouraged Dotcom to split his $50,000 donation into two payments, acknowledged the receipt of the donations and made it clear they should be anonymous.
Whether or not Mr Banks knew the $25,000 donations were marked as anonymous on the electoral return the night they were transmitted is not the heart of the Crown’s case, Mr Heron says. Rather, it is his intentions and the resulting consequence after carrying out those intentions, he says.
Mr Banks met with Dotcom in April and June of 2010. During the first meeting, there was no discussion of donations, Mr Jones says. In the latter meeting, there was discussion of donations by Dotcom, but no cheques were given to Banks at that time, he says.
The SkyCity donation had little mention at the High Court today. In that case, a sealed envelope was handed to Mr Banks which contained a cheque.
Mr Heron says there are alternatives to judicial review, such as appealing after a full trial. Factual matters should be disputed at trial, not during a judicial review, he told the court.
No trial date has been set yet.