John Banks fails in appeal over $190,000 trial costs for wrongful conviction

Former Auckland mayor John Banks has been turned down by the Court of an Appeal in his bid to recover trial costs over his wrongful conviction for a false electoral return.

Mr Banks was originally charged over electoral returns he filed for his mayoralty campaign after it was alleged he declared three payments be anonymous when he knew who the donor was – two of the donations were from Kim Dotcom-associated Megastuff and one from SkyCity.

He successfully appealed his conviction in relation to the Megastuff donations and following his acquittal applied to recover $190,000 in trial costs.  High Court judge Justice Edwin Wylie made a public apology to Mr Banks’ wife, Amanda, after having questioned her credibility as a witness in the trial.

The original conviction was based on the judge preferring evidence from Kim Dotcom and his former wife Mona over that of Mrs Banks. The conviction was overturned after she tracked down witnesses to a lunch at which Mr Dotcom had wrongly claimed the donations were discussed.

A key claim of the latest appeal was that the evidence of the main prosecution witnesses had been shown to be made up and that deficiencies in the witnesses’ evidence should have been discovered earlier.

Justice Wylie dismissed the original costs application saying both propositions put forward failed the statutory criteria.  Mr Banks then appealed on the basis the judge erred in his decision.

The Court of Appeal’s three judges found there is nothing raised in the appeal that leads them to conclude that Justice Wylie’s “careful and thorough” judgement was wrong.

‘This appeal has essentially proffered the same arguments as were made to Justice Wylie and rejected,” they said.

The judges found that there is no doubt that important aspects of the prosecution evidence concerning the Megastuff donations have been shown to be wrong and that when three witnesses make the same mistake, it is legitimate to inquire as to how that has come about.

“That said, we consider that Mr Banks has failed by some margin to establish that this court on appeal should conclude that a conspiracy to pervert the course of justice by committing perjury is the correct explanation for the incorrect evidence.”

And the judges said but for missing evidence that later came to light, the prosecution case was sufficiently credible to result in a conviction. No aspect of Justice Wylie's careful reasoning on this second issue has been shown to be flawed, the court said.

On March 14 after the judgment had been drafted, the appeal court received an application from Mr Dotcom seeking leave to intervene in the appeal given media reporting of the February 15 hearing which referred to claims made about Mr Dotcom’s evidence.

The court says it received written submissions from the parties but haven’t considered it necessary to further consider Mr Dotcom’s application given the outcome of the judgment and thus it has been formally dismissed.