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Banks v R

Banks v R

Case [2014] NZCA 575 28 November 2014

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA428/2014
[2014] NZCA 575

BETWEEN	JOHN ARCHIBALD BANKS Appellant
AND	THE QUEEN Respondent

Hearing:	29 October 2014
Court:	Ellen France P, Wild and Miller JJ
Counsel:	DPH Jones QC and K Venning for Appellant P E Dacre QC and A R Van Echten for Respondent
Judgment:	28 November 2014 at 11.30 am

JUDGMENT OF THE COURT

AThe application to adduce the evidence of Messrs Schaeffer and Karnes is granted.
BThe application to adduce evidence of Mr Dotcom’s driving conviction is declined.

C The appeal is allowed.

DThe conviction is set aside and a new trial ordered.

____________________________________________________________________

REASONS OF THE COURT

(Given by Miller J)

Introduction

John Banks stood for the Auckland mayoralty in the local body election held on 9 October 2010. He lost. Nearly two months later, on 9 December 2010, and by now the holder of no public office, he signed the return of electoral expenses and donations that the Local Electoral Act 2001 required of him.
The return had to disclose any electoral donation of more than $1,000 made by a single donor.[1] The donor’s name and address had to be disclosed too, unless the donor made the donation anonymously. A donation was anonymous if made in such a way that the candidate did not know who made it. Mr Banks’s return categorised as anonymous two donations, each of $25,000, that were made on 14 June 2010.
[1]Local Electoral Act 2001, s 109. We refer here to the legislation as it stood at the time the return was transmitted. It has since been amended extensively.
It is an offence to transmit a return of expenses knowing it to be false in any material particular.[2] The Crown charged that Mr Banks knew the return was false because he knew the identity of the single donor who made the two donations.[3] The donor was Kim Dotcom.
[2]Local Electoral Act, s 134.
[3]He was also charged in relation to another donation made by SkyCity, but was found not guilty.
Mr Banks denied knowing that the donations had been made at all, still less that they were categorised as anonymous in the return. His knowledge of these things was the central issue at his trial before a Judge alone in the High Court at Auckland, at which he was found guilty.[4]
[4]R v Banks [2014] NZHC 1244, [2014] 3 NZLR 256 [High Court conviction decision]. He was sentenced to two months community detention and 100 hours community work: R v Banks [2014] NZHC 1807.
The proof of knowledge was not straightforward. Mr Dotcom made the two donations using consecutive cheques drawn on the account of his company Megastuff Ltd, and a member of his staff banked them without recording the depositor’s name on the deposit slips. Mr Banks’s campaign staff would have identified Megastuff as the donor had they seen the cheques, but they did not, and the campaign’s bank statements did not identify the donor. So far as…

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 [2014] NZCA 575
Case: [2014] NZCA 575
Decision Date: 28 November 2014 at 11.30 am

CaseChat Overview and Summary

John Banks, a former Auckland mayoral candidate, was convicted of knowingly transmitting a materially false return of electoral expenses and donations, contrary to the Local Electoral Act. He appealed against his conviction and sentence. The appeal focused on the admission of new evidence from two American businessmen who claimed they were present at a lunch where no political donations were discussed, as well as the argument that the conviction was unreasonable based on the evidence at trial. The Court of Appeal admitted the new evidence, finding it credible and capable of changing the outcome. The Court also found that the conviction, based on the evidence at trial, was not unreasonable. However, given the new evidence, the appeal was allowed, the conviction was set aside, and a new trial was ordered.

Orders