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Banks v R

Banks v R

Case [2016] NZHC 1596 14 July 2016

Admissibility of Evidence

Criminal Law

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2016-404-000088 [2016] NZHC 1596

UNDER THE Costs in Criminal Cases Act 1967

BETWEEN

JOHN ARCHIBALD BANKS Applicant

AND

THE QUEEN Respondent

Hearing: 7 July 2016

Appearances:

D P H Jones QC for the Applicant
J R Billington QC and M Wong for the Respondent

Judgment:

14 July 2016

JUDGMENT OF WYLIE J

This judgment was delivered by Justice Wylie on 14 July 2016 at 2.00pm
Pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar

Date:…………………………

Solicitors/counsel:
D P H Jones QC/Parlane Law, Auckland
J R Billington QC, Auckland/Crown Law, Wellington

BANKS v THE QUEEN [2016] NZHC 1596 [14 July 2016]

Introduction

[1] The applicant, Mr John Banks, seeks the costs of his defence, in relation to criminal proceedings brought against him by the Crown, from 3 December 2013 (being the date of a judgment by Heath J dismissing an application for review1) to 1
August 2014, when he was sentenced by me.2 Mr Banks seeks payment of

indemnity costs ($190,210) or, in the alternative, costs in such sum, in excess of the scale of costs prescribed by the Costs in Criminal Cases Act 1967, as the Court considers just and reasonable.

[2] The application is opposed by the Crown.

[3] Mr Banks filed an affidavit. So did Mr Michael Heron QC, who, at all relevant times, was the Solicitor-General and the Chief Executive Officer of the Crown Law Office. Neither Mr Banks nor Mr Heron were called for cross examination. Rather the hearing before me was confined to the presentation of submissions.

[4] The key issues were:

(a) should Mr Banks receive an award of costs, following on from his acquittal?; and

(b)if Mr Banks should receive an award of costs, what should be awarded?

Factual Background

[5] Mr Banks was a candidate in the 2010 Auckland mayoral election. In the course of his electoral campaign he raised substantial funds to assist in meeting the costs involved. Ultimately his campaign was unsuccessful. Nevertheless, as a candidate in a local election, Mr Banks was required to file a return of electoral expenses.3

[6] A return was prepared on Mr Banks’ behalf. He signed it and it was filed on

9 December 2010.

1      Banks v Auckland District Court [2013] NZHC 3221, [2014] NZAR 591; See below at [21].
2      R v Banks [2014] NZHC 1807; See below at [26].
3      Local Electoral Act 2001, s 109.

[7] Pursuant to the legislation then in force, the candidate was required to disclose in the return any electoral donation of more than $1,000 made by a single donor. Further, the donor’s name and address had to be disclosed, unless the donor made the donation anonymously. A donation was made anonymously if it was made in such a way that the candidate did not know who made it.4

[8] The return signed by Mr Banks disclosed many donations, including a number of donations of $15,000. Many of these were recorded as being…

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 [2016] NZHC 1596
Case: [2016] NZHC 1596
Decision Date: 14 July 2016

CaseChat Overview and Summary

John Archibald Banks ("Mr Banks") sought an award of costs under the Costs in Criminal Cases Act 1967 ("the Act") following his acquittal of an electoral offence. The Crown opposed the application. The key issues were whether Mr Banks should receive an award of costs following his acquittal and, if so, what should be awarded. The Court found that the Crown's conduct in pursuing the proceedings against Mr Banks was appropriate and unexceptional. Further, while Mr Banks was acquitted, it was not on a technical point. Instead, the Court of Appeal found that no reasonable fact finder could be satisfied beyond reasonable doubt that Mr Banks was guilty. The Court also found that Mr Banks had not discharged the onus on him to point to cogent relevant circumstances justifying an award of costs. Accordingly, Mr Banks' application for an award of costs was declined.

Orders