Wati v The Queen - [2016] NZCA 69

IN THE COURT OF APPEAL OF NEW ZEALAND

CA361/2016
[2017] NZCA69

BETWEEN	JOHN ARCHIBALD BANKS Appellant
AND	THE QUEEN Respondent

Hearing:	15 February 2017 (with an application on 14 March and submissions on that application on 14 and 17 March)
Court:	Wild, Simon France and Duffy JJ
Counsel:	D P H Jones QC for Appellant J R Billington QC and M J Lillico for Respondent
Judgment:	21 March 2017 at 3 pm

JUDGMENT OF THE COURT

AThe appeal is dismissed.
BThe appellant must pay the respondent costs for a standard appeal on a band A basis and usual disbursements.

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REASONS OF THE COURT

(Given by Simon France J)

Introduction

Mr Banks, formerly the Mayor of Auckland, was charged in relation to electoral returns he filed for his mayoralty campaign. It was alleged that he declared three payments to be anonymous when in fact he knew who the donor was. One of the donations was from SkyCity and two were from Megastuff Ltd (the Megastuff donations). The latter company is an entity associated with Mr Dotcom.
The charge was found proved in relation to the Megastuff donations, but Mr Banks successfully appealed on the basis of fresh evidence. The history of the matter is set out in several judgments.[1] Following his acquittal, Mr Banks applied under the Costs in Criminal Cases Act 1967 (the Act) to recover his trial costs. A key claim of the application was that the evidence of the main prosecution witnesses in relation to the Megastuff donations had been shown to be fabricated. It was also contended that deficiencies in the evidence of those witnesses could and should have been discovered earlier had proper inquiries been made.
[1]R v Banks [2014] NZHC 1244, [2014] 3 NZLR 256 [Trial judgment]; Banks v R [2014] NZCA 575 [Appeal judgment]; and Banks v R [2015] NZCA 182 [Recall judgment].
Both these propositions were rejected by Wylie J.[2] The application was analysed in terms of the statutory criteria, and was dismissed. Mr Banks appeals on the basis that Wylie J erred in these two pivotal assessments. Counsel for Mr Banks, Mr Jones QC, accepts there is no other error of principle, and the appeal depends on this Court reaching different conclusions from those of Wylie J in relation to either of these matters.

Relevant history

[2]Banks v R [2016] NZHC 1596 [Costs judgment].

The Megastuff donations were made following discussions between Mr Dotcom and Mr Banks about donations. Prior to trial it seemed the main dispute would be about the content of those discussions, and whether Mr Banks had asked for the donations to be made anonymously. However, at trial the issue of when the discussions took place assumed importance, and then during the appeal process it became pivotal.
The Crown case was built around the evidence of Mr Dotcom, which was in turn corroborated by his then wife and Mr Tempero (his then security adviser). Mr Dotcom’s evidence was centred on a 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.

Continue reading Wati v The Queen

Details

AGLC: Wati v The Queen [2016] NZCA 69
Case: [2016] NZCA 69
Decision Date: 21 March 2017 at 3 pm

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, the case of Wati v The Queen involved the appellant, John Archibald Banks, formerly the Mayor of Auckland, who sought to recover his trial costs under the Costs in Criminal Cases Act 1967. The central dispute centered around electoral returns filed by Mr. Banks for his mayoralty campaign, specifically regarding three payments he declared as anonymous. The appeal hinged on two main issues: whether the prosecution's evidence had been shown to be fabricated, and whether the Crown should have tested its evidence more thoroughly.

The court found that although some aspects of the prosecution evidence concerning the Megastuff donations were incorrect, this did not establish that the witnesses were deliberately lying. The Court emphasized that it would be speculative to conclude that the prosecution should have pursued the missing evidence prior to trial, especially as the defence had more control over identifying the relevant individuals. The Court held that the trial judge, Wylie J, was best placed to assess the merit of these arguments and saw no reason to disagree with his evaluations. Consequently, the appeal was dismissed, and the appellant was ordered to pay the respondent's costs for a standard appeal on a band A basis and usual disbursements.

Orders