John Archibald Banks v The Queen - [2017] NZSC 98

IN THE SUPREME COURT OF NEW ZEALAND

SC 41/2017
[2017] NZSC 98

BETWEEN	JOHN ARCHIBALD BANKS Applicant
AND	THE QUEEN Respondent

Court:	Elias CJ, William Young and OʼRegan JJ
Counsel:	D P H Jones QC for Applicant M L Wong for Respondent
Judgment:	28 June 2017

JUDGMENT OF THE COURT

A The application for leave to appeal is dismissed.
B The applicant must pay costs to the respondent of $2,500.

____________________________________________________________________

REASONS

The applicant was tried before Wylie J sitting alone, for the offence of knowingly transmitting a false return of his electoral expenses in relation to his unsuccessful 2010 campaign for the Auckland mayoralty.[1] The Crown case was that three donations, one from SkyCity Management Ltd for $15,000 and two from Megastuff Ltd of $25,000 each, had been falsely returned as having been given anonymously when the applicant knew who the donors were. Wylie J concluded that the particulars in relation to the SkyCity Management donation had not been established but that the charge had been proved in relation to the two Megastuff donations.[2]
[1]R v Banks [Reasons for verdict] [2014] NZHC 1244, [2014] 3 NZLR 256.
[2]At [147] and [153]–[155].
The case against the applicant on the Megastuff donations had two features. The first was the general narrative of events, given by Mr and Mrs Dotcom[3] and a Mr Tempero, of a lunch on 9 June 2010 at Mr Dotcom’s house which was attended by Mr and Mrs Banks at which the proposed donation was discussed. Their evidence was that Mr Banks had proposed that the $50,000 that Megastuff was to donate should be provided by way of two cheques so that it could be recorded anonymously. The impugned return referred to a total of five anonymous donations of $25,000. The second was evidence from Mr Dotcom’s solicitor of a discussion with Mr Banks in the aftermath of Mr Dotcom’s arrest in respect of extradition proceedings against him in which he said that Mr Banks had acknowledged the financial assistance which Megastuff and Mr Dotcom had provided in respect of his mayoral campaign.
[3]The Dotcoms are linked to Megastuff Ltd.
Unbeknownst to the prosecution before trial, Mr and Mrs Banks had what was, in effect, an alibi for 9 June 2010; in other words, they could not have had lunch with Mr Dotcom that day at his house. They were able to establish by other evidence that the lunch took place on 5 June 2010. In their statements to the police Mr and Mrs Banks had referred to other people having been present at the lunch albeit in reasonably general terms. In her evidence, Mrs Banks said that on that occasion there had been no discussion of donations. She also referred to two American businessmen having been present. Her evidence was not accepted by the Judge.
By the time the applicant’s appeal was heard in the Court of Appeal, Mrs Banks had tracked down the two American businessmen who confirmed her account of the lunch.…

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.

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Details

Case: [2017] NZSC 98
Decision Date: 28 June 2017

CaseChat Overview and Summary

In the Supreme Court of New Zealand, John Archibald Banks sought leave to appeal against a decision of the Court of Appeal which had dismissed his application for costs in relation to his criminal trial. The court had found Mr Banks guilty of knowingly transmitting a false return of his electoral expenses in relation to his 2010 campaign for the Auckland mayoralty. The Supreme Court held that Mr Banks was not entitled to legal costs because he had not established his innocence of the offence, and dismissed the application for leave to appeal. The applicant was ordered to pay costs to the respondent of $2,500.

The central issue before the Court was whether Mr Banks had established that he was not guilty of the offence for which he was convicted. The Court considered the evidence of Mr Dotcom, Mr and Mrs Dotcom and Mr Tempero, and the new evidence provided by two American businessmen who attended a lunch with the Banks on 5 June 2010. This evidence meant that the Crown’s narrative of events as advanced at trial had collapsed. However, there was other evidence capable of supporting the inference that Mr Banks knew that Mr Dotcom had financially supported his mayoral campaign. The Court concluded that there was no reasonable prospect of a conviction, and that the application for leave to appeal should be dismissed.

The Court held that there was no point of general or public importance involved in the appeal. Instead, the case turned on a factual issue, in respect of which there were now concurrent findings of fact. There was no appearance of a miscarriage of justice. Accordingly, the application for leave to appeal was dismissed. Costs followed the event; accordingly, the applicant must pay costs to the respondent of $2,500.

Orders