R v Banks - [2014] NZHC 696

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2012-085-009093 [2014] NZHC 696

THE QUEEN

v

JOHN ARCHIBALD BANKS

Hearing: 4 April 2014

Appearances:

P Dacre QC for the Crown
D Jones QC for the Defendant

Judgment:

7 April 2014

[RESERVED] JUDGMENT OF WYLIE J

This judgment was delivered by Justice Wylie on 7 April 2014 at 4.30 pm
Pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date:

R v BANKS [2014] NZHC 696 [7 April 2014 ]

Introduction

[1] The defendant, the Honourable John Banks, faces one count of transmitting a return of electoral expenses, knowing it to be false in a material particular.

[2] Mr Banks has filed an application pursuant to s 347 of the Crimes Act 1961. He seeks a discharge.

[3] The application is opposed by the Crown.

The Charge

[4] The indictment reads as follows:

The Solicitor-General charges that John Archibald Banks on or about the
9th day of December 2010 at Auckland, being a candidate, transmitted a return of electoral expenses knowing it to be false in one or more material
particulars.

Particulars: The return of electoral expenses and donations for the 2010
Auckland mayoral election signed by the said John Archibald Banks listed as
“anonymous” the following donations and in respect of which he knew the
identity of the donor:

i) Donation in the sum of $15,000 made by Skycity Management
Limited and received on or about 24 May 2010;

ii) Donation in the sum of $25,000 made by Megastuff Limited on behalf of Kim Dotcom and received on or about 14 June 2010;

iii) Second donation in the sum of $25,000 made by Megastuff Limited on behalf of Kim Dotcom and received on or about 14 June 2010.

[5] The charge is brought under s 134 of the Local Electoral Act 2001 (as it was in 2010). Relevantly, it provided as follows:

134 False return

(1) Every candidate commits an offence who transmits a return of electoral expenses knowing that it is false in any material particular, and is liable on conviction on indictment to imprisonment for a term not exceeding 2 years or to a fine not exceeding $10,000.

…

[6] There are four key elements to an offence under s 134. They are:

(a) Is the person whose conduct is under scrutiny a candidate?; (b) Has the candidate transmitted a return of electoral expenses?; (c) Was the return false in any material particular?; and
(d)Did the candidate know that the return was false at the time of transmission?

[7] Elements (a), (b) and (c) are not in dispute for the limited purpose of the present application. Rather, the application turns on element (d) – in particular, whether or not a properly directed fact finder could reasonably infer from the evidence that the Crown proposes to call that Mr Banks knew the return was false when it was transmitted.

Section 347

[8] Section 347 provided as follows:

347 Power to discharge accused

(1) Where any person…

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 R v Banks

Details

AGLC: R v Banks [2014] NZHC 696
Case: [2014] NZHC 696
Decision Date: 7 April 2014

CaseChat Overview and Summary

The case of R v Banks concerns a criminal prosecution brought against John Archibald Banks, who faces one count of transmitting a return of electoral expenses, knowing it to be false in a material particular. The defendant has filed an application pursuant to section 347 of the Crimes Act 1961, seeking a discharge. The Crown opposes the application. The legal issues revolve around whether there is sufficient evidence to establish that the defendant knew the return was false at the time of transmission. The court considered the principles for exercising the discretion under section 347, which include whether a properly directed fact finder could reasonably infer that the defendant knew the return was false. The court found that, at its highest, the evidence the Crown proposes to adduce at trial, if accepted, is such that a properly directed fact finder could reasonably conclude that the defendant knew the returns were false. The application is dismissed, and the case will proceed to trial.

Orders