The Police have concluded their investigation into John Banks’ declaration that he did not know that Kim Dotcom and Sky City had made significant donations to his 2010 mayoral campaign, so recorded them as anonymous. If he can be shown beyond reasonable doubt to have known about either, he is guilty of filing a false return and the penalties are severe. The Police investigators have passed the file to their legal section to decide whether or not to prosecute.
Everybody now knows that Kim Dotcom and Sky City did make the donations to Banks’ candidacy campaign. Banks defence is that he did not know at the time that any specific donation came from them, and that he complied with the letter of the law, which defines an anonymous donation as one “where the donation is made in such a way that the candidate did not know the person who made the donation.”
There are two tests the Police legal team will have to apply. They are outlined in the prosecution guidelines;
Prosecutions ought to be initiated or continued only where the prosecutor is satisfied that the Test for Prosecution is met. The Test for Prosecution is met if the evidence which can be adduced in Court is sufficient to provide a reasonable prospect of conviction – the Evidential Test; and Prosecution is required in the public interest – the Public Interest Test.
Each aspect of the test must be separately considered and satisfied before a decision to prosecute can be taken. The Evidential Test must be satisfied before the Public Interest Test is considered. The prosecutor must analyse and evaluate all of the evidence and information in a thorough and critical manner.
As the guidelines indicate, the evidential test is the critical one. There is no question that if the evidence is sufficient, prosecution in this case is in the public interest.
What we know from what has been disclosed publicly is that according to Kim Dotcom he offered Banks a donation of $50,000 which Banks accepted gratefully but asked that it be split into two donations of $25,000 each. A Dotcom employee who lodged the cheques in Queenstown said that he knew they had been received because he had a call from Dotcom’s bodyguard, Wayne Tempero, to say that Banks had called Tempero to say thank you for the donations.
Banks says he cannot remember saying this. It comes down to a question of credibility – is John Banks to be believed, or are Kim Dotcom and Wayne Tempero telling the truth. Both can’t be right. The prosecution guidelines say that when there is an issue of credibility, prosecutors must look closely at the evidence when deciding whether there is a reasonable prospect of conviction.
But there is no doubt that the donations were made, and in the form Banks asked for. Banks’ story kept changing, and there is certainly other circumstantial evidence that Banks knew Dotcom was a donor – he later asked him for a donation to ACT’s 2011 election campaign but was turned down. There is also the question of the Sky City donation – it arrived with Len Brown’s campaign team by named cheque.
There would appear to be plenty of evidence available. In my opinion the issue of credibility should be decided by a judge.