The two legs of Banks’ defence trip each other

Written By: - Date published: 8:17 am, October 17th, 2013 - 28 comments
Categories: john banks, law, local body elections - Tags:

John Banks is to stand trial for knowingly submitting a false electoral expenses return. He’s charged, thanks to the private prosecution after the Police failed to act, with breaching s134(1) of the Local Electoral Act (National and Banks have since repealed that section, but without retrospective effect). Let’s take a look at the two lines of defence Banks has argued, and how they contradict each other.

Here’s the text of s134(1):

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 [two] years or to a fine not exceeding $10,000.

(Banks also breached 134(2), which is essentially the same but doesn’t have the “knowing” bit – that’s called an absolute liability offence – you’re guilty if you do the act whether or not you meant to or were reckless or negligent. But (2) had a 6 month time limit for a charge to be laid, so Banks got off)

Now, Banks has two main lines of defence:

The first tries to get him off on the “false” aspect of the offence. The return is false if  it lists as anonymous donations that weren’t actually anonymous because Banks knew who gave him the money. Banks has maintained all along that the return isn’t false because he didn’t know that he got donations from SkyCity and Kim Dotcom, despite having discussed the donations with those two parties and having received the SkyCity donation personally (and despite having flown by fucken helicopter to a mansion to get a donation from a giant German). Banks says ‘look, the return isn’t false, those donations are correctly listed as anonymous’. This has been the position that Banks has argued consistently in public since the donations scandal broke.

That argument has pretty much been destroyed by the judge in the pre-trial hearing – Banks clearly talked to the people he got the donations from about the donations and knew they had given him those donations. Banks may not even run it in the trial, but that won’t change the fact he’s made it up to this point and it seriously undermines his second argument.

The second leg goes to the “knowing” aspect of the offence. Banks says that he didn’t know that the return was false because he just asked his campaign staffer if it was accurate and complete and he was told yes, so he signed. The line is ‘of course, if I had known the return was false I wouldn’t have signed it, oh dear’. Hmm. That doesn’t gel with argument 1, does it? Because, in this scenario, he concedes that the return was false because knew that he had received donations from Dotcom and SkyCity, but he was ignorant to the fact that those donations were not declared in the return.

It can’t be both: either he didn’t know he had received donations from SkyCity and Dotcom and the return isn’t false or he did know and the declaration is false.

2 trips 1 because it says he did know about who he got the donations from, making the return false.

And 1 trips 2 because Banks has been going around saying ‘yup, this is the return I signed and it says what I think it should say’, ie he knew its contents (and doesn’t resile from them).

It’s all going to come down to Banks’ knowledge: did he know that the return he signed said that the donations from Dotcom and SkyCity were anonymous when they weren’t?

Here’s the evidence as I see it that he did know:
1) he’s not come out and said ‘oh golly, we got the return wrong, I had no idea that it declared those donations anonymous and I wouldn’t have signed it if I had known’. His refusal to say the return is false when given the chance to re-examine it implies that he was already aware of its contents.
2) Banks made a big deal of making Dotcom’s donations anonymous – he insisted on the fact to Dotcom and discussed with him why that would be advantageous for Dotcom. In fact, all his major donations were listed anonymous and we still don’t know who most of those donors were (remember this only came to light because SkyCity revealed it had donated to both mayoral candidates in an response to, from memory, questions around the pokies deal, and Dotcom piped up later). So, Banks knew he was soliciting large anonymous donations, therefore, he can be taken to have known that his return would show those donations as anonymous, even if he didn’t read it.
3) Applying a reasonable person test, would an average person believe that a long-serving MP, minister, and former mayor does not read statutory declarations before signing them? Banks, in signing, swore that the return was correct to the best of his knowledge. That’s the kind of legally binding pledge that anyone, and especially an experienced public figure takes seriously. And it’s not like the return is a long document.

You can never “prove” what someone knew at a given time, short of video of them saying so at the time (or, you know, a statutory declaration from that person as to what they know at the time they’re signing – like the one Banks signed). But the evidence is clear that Banks knew the return said donations were anonymous when they weren’t:

Banks systematically sought large donations and sought to have them made ‘anonymously’. He signed a statutory declaration regarding the return and can be reasonably expected to have checked the return before doing so. He continues to claim that the return is accurate.

That all adds up in my view, to confidence beyond reasonable doubt that Banks knew the return he was transmitting declared as anonymous donations from people whose identities he knew.

Roll on the Epsom by-election.

28 comments on “The two legs of Banks’ defence trip each other ”

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  1. Frank 1
    17 October 2013 at 8:50 am

    Nothing to fear, nothing to hide…….

    The photos of Banks in overalls doing community service will be priceless.

    • ghostwhowalksnz 1.1
      17 October 2013 at 9:34 am

      A first timer will get to choose his type of community service, but Banks will appeal this through every court in the land.

      Do you now see why the Brown revelations had to come this week after the elections

      • toad 1.1.1
        17 October 2013 at 10:18 am

        He’s not a first timer. He was convicted under the Civil Aviation Act when Minister of Police for using a cellphone on a plane.

    • greywarbler 1.2
      17 October 2013 at 10:13 am

      Hope they are bright orange overalls. He’d be a standout.

  2. Tracey 2
    17 October 2013 at 8:59 am

    nothing to hide nothing to fear but he will pursue every option to not stand trial…

  3. karol 3
    17 October 2013 at 9:02 am

    Whatever is proven or not, Banks, to the average watcher, is dancing on a pin and trying to get by on the letter of the law. He clearly was manoeuvering to make it possible that donations he’d solicited, and knew he got, were listed officially as anonymous, in order to avoid scrutiny of his dodgy dealings.

    From Nat shill Tracey Watkins today, “Grim outlook for National”:

    The ACT leader’s definition of “anonymous donation” was laughed out of the court of opinion a long time ago.

    The High Court is similarly sceptical. If the political upside of Key defending Banks previously was marginal, there is absolutely none in him continuing to do so between now and the next election.

  4. appleboy 4
    17 October 2013 at 9:09 am

    I just thought this morning what a totally disreputable bunch ACT are. Just stop and think , is this the most ugly bunch of nasties assembled under one brand ever? Not a shred of humanity amongst them.

    Rodney Hide

    John Banks

    David Garrett

    John Boscowan

    Don Brash

    • tc 4.1
      17 October 2013 at 9:49 am

      Let’s add some true blue to go with that…

      Aaron Gilmore – stupid is as stupid does
      Patsy Wong – Dodgy and caught
      Richard Worth – please explain JK
      Jackie Blue – shuffled off very quietly (property scandal anyone)
      Double Dipton – caught out so JK changed the rules
      Heatley / Smith – time on the naughty step but back now
      Smiling Sammy Lotu – evidence he donated his second akl city council salary to charity please.
      Shonkey – see above re salary, tranzrail/blind trusts/GCSB, Blip’s list does it soo much better.

      more warm caring sorts like….
      Tau Henare
      Jamie lee-Ross
      Gerry, Basher and Crusher

      They make Ryall/Findlayson look like warm and fluffy slippers which shows how far the wool has been pulled down middle NZ’s eyes.

    • Rich 4.2
      17 October 2013 at 11:53 am

      You missed out Donna Awatere-Huata – 2yrs 9 months for defrauding a children’s charity, wasn’t it.

    • Murray Olsen 4.3
      18 October 2013 at 12:21 am

      Add Roger Douglas, Richard Prebble, and those like Goff who never officially joined ACT.

  5. ianmac 5
    17 October 2013 at 10:02 am

    Graham Edgler says on Morning Report @ 8:25 that Mr Banks can’t appeal the decision to prosecute unless there is an extreme event. It is possible that the Crown could take over the prosecution.
    A short well informed item:
    http://www.radionz.co.nz/audio/player/2573110

  6. Graeme Edgeler 6
    17 October 2013 at 10:16 am

    The section 134(2) offence is not absolute liability but strict liability. There is a defence available of having taken reasonable steps to ensure accuracy.

    • karol 6.1
      17 October 2013 at 11:10 am

      Do you think the available defence is a strong one?

      • Graeme Edgeler 6.1.1
        17 October 2013 at 11:21 am

        He’s charged under section 134(1). Was just offering a minor correction to the claim. This will have nothing to do with the trial itself.

        • Mary 6.1.1.1
          17 October 2013 at 12:23 pm

          Do you think Banks could manage to draw things out long enough to avoid a result that would force a by-election? No doubt he’ll use every delay tactic available within the private prosecution process to ensure a trial date as late as possible to up his chances of remaining an MP until the end, then if or when he is finally convicted it’ll be too late to impact on his current term? Are his chances of managing to do this reasonably high?

          • Lanthanide 6.1.1.1.1
            17 October 2013 at 1:52 pm

            This morning on the radio Graeme said he didn’t think it was likely that the case would be heard before the middle of the year.

            If that is the case, there’s a provision that a vacant seat doesn’t have to have a by-election if it’s within 6 months of the date of the election – this is what Hone was scraping up against with the Mana by-election.

            I don’t even know what happens if he’s found guilty and then appeals, assuming he’s allowed to or has grounds for appeal.

            • Graeme Edgeler 6.1.1.1.1.1
              17 October 2013 at 2:48 pm

              If a conviction in entered, the seat is vacated. Unless in prison, Banks could run in a resulting by-election. Everyone convicted has the right to at least one appeal, but launching an appeal does not stop the seat from being vacated.

              There is a different rule for local government, where a convicted local council member can stay in office while an appeal is heard, but can’t actually take a role in doing anything.

  7. vto 7
    17 October 2013 at 10:18 am

    It was easy for the Judge to determine that there was a case to answer …

    so why did the police think differently and determine there was no case to answer?

    corruption perhaps? stinks to high heaven. And back. This police decision should be looked at as well.

    • tc 7.1
      17 October 2013 at 12:38 pm

      The police have needed looking into since the bok tour in 81. One could say they appear to be part of the political process now under NACT, they’ve certainly got the contacts.

    • Draco T Bastard 7.2
      17 October 2013 at 1:55 pm

      This police decision should be looked at as well.

      Yep but not by the police. We really do need an independent agency that can keep the police and intelligence services in line.

  8. ianmac 8
    17 October 2013 at 4:15 pm

    The Herald: ”
    “Auckland Council chief executive Doug McKay is this afternoon expected to announce an inquiry into the Len Brown sex scandal.”
    Wonder what form that will take?

    • ianmac 8.1
      17 October 2013 at 4:39 pm

      Update Herald:
      “Mr McKay (CEO) said today that the Mayor has no council credit card and all invoices and payments from the mayoral budget are checked and approved by the chief of staff.

      “I have received an assurance from both the Mayor and his chief of staff that no mayoral office funds were used in relation to the Mayor’s relationship with Ms Chuang.”

      “However I have agreed to independently review this to confirm that is the case.””

  9. Tracey 9
    17 October 2013 at 9:59 pm

    solicitor general considering taking over prosecution of Banks… i hope he can be stopped.

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