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Banks v R

Banks v R

Case [2015] NZCA 182 19 May 2015

Appeal

Jurisdiction

Miscarriage of Justice

Contempt of Court

Criminal Law

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA428/2014
[2015] NZCA 182

BETWEEN	JOHN ARCHIBALD BANKS Appellant
AND	THE QUEEN Respondent

Hearing:	28 April 2015
Court:	Ellen France P, Wild and Miller JJ
Counsel:	DPH Jones QC for Appellant Solicitor-General, M R Heron QC for Respondent
Judgment:	19 May 2015 at 11.30 am

JUDGMENT OF THE COURT

The application for recall of our judgment of 28 November 2014 is granted. We cancel the retrial order and direct that a verdict of acquittal be entered.

____________________________________________________________________

REASONS OF THE COURT

(Given by Miller J)

Introduction

In our judgment of 28 November 2014 we quashed Mr Banks’s conviction on one charge of transmitting a return of electoral expenses knowing it to be false in a material particular.[1] We ordered a retrial, which the Crown has elected to pursue.
[1]Banks v R [2014] NZCA 575 [Appeal judgment].
Mr Banks has now moved for recall of our judgment, asking that we cancel the retrial order and substitute an acquittal for the guilty verdict entered at first instance. He has brought the application because he says the Crown knew, but did not tell us, that its principal witness, Mr Kim Dotcom, had changed his evidence when confronted with affidavits filed on appeal for the defence. He maintains that had we known the true position we would not have ordered the retrial.
The Crown resists the recall application, saying that the retrial order was orthodox, there are no sufficient grounds to substitute an acquittal, and Mr Banks has a remedy in the High Court, to which he has applied, citing the same grounds, for a discharge under s 347 of the Crimes Act 1961.

Narrative of the appeal

We will summarise the background briefly, assuming that the reader is familiar with our first judgment. For reasons given there, the Crown case against Mr Banks rested on oral evidence of an understanding reached between Mr Banks and Mr Dotcom over lunch at the Dotcom mansion at Coatesville. The gist of the evidence, given by Mr Dotcom, his wife Mona Dotcom and his head of security, Wayne Tempero, was that the two men agreed that Mr Dotcom would make two donations, each of $25,000, which would be treated for disclosure purposes as anonymous. But for that evidence, the Crown case must have failed.
It was said initially that the lunch happened on 9 June 2010, the day on which two cheques, each for $25,000, were drawn. It was Mr Dotcom’s evidence that he thought the cheques were written on the same day as the lunch. Wylie J found that he became more sure about that during cross-examination.[2] His evidence was supported by Mr Tempero and Mr Dotcom’s accountant, a Mr McKavanagh.
[2]R v Banks [2014] NZHC 1244, [2014] 3 NZLR 256 [High Court judgment] at [104].
It was common ground that Mr Banks’s wife, Amanda Banks, was at the lunch. She gave evidence, by reference to her employment records, that she was at work in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Banks v R

Details

AGLC: Banks v R [2015] NZCA 182
Case: [2015] NZCA 182
Decision Date: 19 May 2015 at 11.30 am

CaseChat Overview and Summary

In Banks v R, the appellant, John Archibald Banks, sought recall of a previous Court of Appeal judgment that had quashed his conviction on a charge of transmitting a return of electoral expenses knowing it to be false in a material particular. The Court of Appeal had ordered a retrial of the matter, which the Crown elected to pursue. Banks argued that the Crown knew that its principal witness, Mr Kim Dotcom, had changed his evidence when confronted with affidavits filed on appeal for the defence, but did not disclose this to the Court. Banks contended that had the Court been aware of the true position, it would not have ordered a retrial.

The Court of Appeal considered the legal issues involved in the exercise of its discretion to order a retrial, and the circumstances in which it may recall a previous judgment. The Court found that the Crown could not withhold the Butler memorandum and resist the appeal in the manner it did, as this had the effect of misleading the Court. The Court was satisfied that there had been a serious error of process, attributable to an error of judgment rather than misconduct, and that this had resulted in a miscarriage of justice. The Court held that had it known of the Butler memorandum, it would not have ordered a retrial, and therefore granted the application for recall of the previous judgment. The Court cancelled the retrial order and directed that a verdict of acquittal be entered.

The Court considered the alternative remedy available to Banks under s 347 of the Crimes Act and found that it was not an adequate remedy in the particular circumstances of the case. The Court held that the High Court might discharge Banks for insufficiency of evidence, but the decision would be made by reference to the evidence to be led at the retrial, complete with any improvements the Crown had been able to make to its case with benefit of a second opportunity. The Court had held that it was not appropriate to afford the Crown that opportunity.

Orders