Banks denied 'grave injustice' costs
John Banks’ $190,000 High Court costs bid following his acquittal of filing a false electoral return has been dismissed.
Last week, the former National cabinet minister and ACT MP’s lawyer, David Jones, QC, said it was difficult to imagine a "more worthy" applicant for court costs than the victim of "fabricated evidence.”
Mr Banks was seeking costs after the Court of Appeal last year acquitted him and ruled he should not be retried.
The Crown opposed the costs application, arguing there was no evidence that suggested what was being said by Kim Dotcom in the case arguing Mr Banks had filed a false electoral return when he was Auckland City mayor was fabricated, and the case "had to go to trial."
Mr Banks was convicted on that charge but it was overturned by the Court of Appeal after Mr Bank's wife, Amanda, tracked down two witnesses who had been present at a lunch held by Mr Dotcom and about which he had testified.
Mrs Banks did that after her original evidence was criticised during the High Court case.
Justice Ed Wylie last week publicly apologised to Mrs Banks after earlier questioning her credibility but in a decision today declined Mr Banks’ costs application.
Mr Banks’ lawyer David Jones, QC, told Justice Wylie in the High Court at Auckland there was now a "certain amount of water under the bridge" and the dynamic of the case had been "turned on its head."
But the only outstanding issue was High Court costs, which Mr Banks sought, having suffered a "grave injustice."
This was because the evidence given in the High Court for the Crown was "fabricated," specifically from Kim Dotcom, Mona Dotcom and Mr Dotcom's former bodyguard, Wayne Tempero.
Every decision resulting in the conviction was then made based on the fabricated evidence, Mr Jones said.
"Mr Dotcom has been caught out lying.
"It is difficult to imagine a more worthy applicant than someone who's been the victim of fabricated evidence."
Crown lawyer John Billington, QC, however, said the prosecution was properly and reasonably brought.
There was no evidence available to the Crown that suggested what was being said by the Dotcoms and Mr Tempero was fabricated.
"This was a case that had to go to trial."
Evidence ‘inconsistent’ at best
Mr Banks was earlier this year awarded $66,200 in costs from the Crown for the hearings that led to his acquittal.
Today’s judgment breaks down the issues into the Sky City and the Megastuff donations.
Justice Wylie says Mr Banks did not establish he was not guilty over the Sky City donation but rather the Crown failed to prove it beyond reasonable doubt.
“In my judgment, the Crown’s conduct in relation to the Sky City donation was appropriate and unexceptional.”
On the Megastuff donations, Justice Wylie says he accepts the Crown could have asked Mr Dotcom about other people said to have been present at the lunch.
But there was nothing that suggested Mr Dotcom, Mrs Dotcom or Mr Tempero’s evidence may have been suspect, and again the judge found the investigation was conducted in a reasonable and proper manner.
The judge also found it could not be asserted the trio’s evidence was fabricated, as there had been no re-trial and they had not been charged with perjury, so far as he was aware.
“It was asserted that Mr and Mrs Dotcom’s evidence, and Mr Tempero’s evidence, was ‘a fabrication.’
“I do not accept that the matter is that simple.
“At best, from Mr Banks’ perspective, it can be said that the evidence that they gave at trial is inconsistent with the affidavits of the two American businessmen, and further that Mr Dotcom’s acceptance of these affidavits throws into significant doubt the evidence which he, Mrs Dotcom and Mr Tempero gave at trial.
“While there was, however, other material that supported their evidence, it became a case where no reasonable fact finder could be sure Mr Banks was guilty.”
Judge accepts error
Justice Wylie last week asked Mr Jones if he could address his client, Mr Banks, directly after the hearing.
The judge told Mr Banks he now accepts the findings he made as to Mrs Banks' credibility were in error and asked for his apologies to be passed on.
Today’s judgment says he records the apology.
“I appreciate that my finding will have upset her and caused her significant embarrassment and distress.
“This distress was, no doubt, compounded by the considerable media coverage given to the trial and to my Reasons for Verdict judgment.
“It is appropriate that I should acknowledge my error and I do so.”
Read the judgment here.