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Banks let down by the Crown (but not the judiciary)

Written By: - Date published: 11:03 am, May 21st, 2015 - 41 comments
Categories: Abuse of power, accountability, Ethics, law, uncategorized - Tags:

John Banks, like other citizens is entitled to due process. We have some underlying concepts within our legal system. These include:

  1. Innocent until proven guilty
  2. The right to not have to give evidence in your own defence (without fear or favour)
  3. The right to expect the lawyers will abide by their Professional Code of Ethics and the Laws of Evidence and procedure

As a former practicing lawyer I am appalled at the behaviour of the taxpayer funded crown prosecution service withholding documents from the Court. I am pleased to see that the Attorney General considers this worthy of further investigation.

In the wake of former MP John Banks’ acquittal on Tuesday, Attorney-General Chris Finlayson says he will look into details surrounding the case.

Finlayson said on Wednesday that he would look further into a memorandum the Crown didn’t disclose to the Court of Appeal and ” the facts surrounding it”.

He said as the Attorney-General he would not get involved in criminal proceedings but he was responsible for ensuring the Crown Law office had a good reputation.

Judges rely not just on the evidence in the form of documents and witnesses to determine a case but the integrity of the lawyers involved in the case. They are there to serve the Court as well as their clients.

95 Code of professional conduct and client care
  • The New Zealand Law Society and the New Zealand Society of Conveyancers, in exercising the powers conferred by section 94(e), must each have rules that include or provide for a code of professional conduct and client care, which will be a reference point for discipline and which will focus on, but need not be limited to,—

    • (a) in the case of lawyers, the duties of lawyers as officers of the High Court and the duties of lawyers to their clients:

    • (b) in the case of conveyancing practitioners, the duties of conveyancing practitioners to their clients:

    • (c) in the case of both lawyers and conveyancing practitioners, the duties imposed on them by their fundamental obligation to be independent in providing regulated services to their clients.

     

Further, their obligations are set out in the Schedule to the Regulations and include:

the rules are based on the fundamental obligations of lawyers set out in section 4 of the Act, namely—

  • to uphold the rule of law and to facilitate the administration of justice in New Zealand :

  • to be independent in providing regulated services to clients:

  • to act in accordance with all fiduciary duties and duties of care owed by lawyers to their clients:

  • to protect, subject to overriding duties as officers of the High Court and to duties under any enactment, the interests of clients.

The rules are not an exhaustive statement of the conduct expected of lawyers. They set the minimum standards that lawyers must observe and are a reference point for discipline. (emphasis added)

First and foremost a Lawyer’s duty is to the Court. Their second duty, to their client, is subject to their duty to the Court. This is outlined in Chapter 13 of the schedule link to above.

13 The overriding duty of a lawyer acting in litigation is to the court concerned. Subject to this, the lawyer has a duty to act in the best interests of his or her client without regard for the personal interests of the lawyer.

Duty of fidelity to court
  • 13.1  A lawyer has an absolute duty of honesty to the court and must not mislead or deceive the court.

John Banks, in my opinion is either a dishonest man or one intellectually incapable to fulfil many of the roles he has undertaken (from being a Minister of Police to an Executive Chair of Hujlich Financial Services to not reading a statutory declaration of donations – a legal requirement).  It scares me that he may truly believe that there is nothing wrong with making a declaration without reading the contents, and taking fees from shareholders to be an Executive Chairman, but not understanding or reading the company finances. Despite all of that he is entitled to have a fair hearing, in front of a competent and well informed judiciary. The process has worked insofar as eventually it has been revealed that information was withheld from the court. Kim DotCom did not withhold this information from the Court

I am not surprised that he has turned his attention/anger to Kim DotCom and the Solicitor General. The former is misdirected and the later a tad ironic. Next he will be saying the OIA isn’t rigorous enough.

I support any decision he makes to lay a complaint with the NZ Law Society against the taxpayer funded prosecutor/s who made the decision to breach their obligation to the Court and to hold the AG’s feet to the fire regarding a rigorous investigation of the withholding of the memorandum. I do so because it helps ensure the judiciary can function (which is also crucial in holding the Executive to account) and in weeding out lawyers who act solely in the interests of themselves and their clients without regard to their overriding obligation to the Courts.

 

 

41 comments on “Banks let down by the Crown (but not the judiciary) ”

  1. yabby 1

    Thank you Tracey for this.

    • aerobubble 1.1

      Does double jeopardy now apply, or can it go back to a private prosecution?
      Should we trust the Crown to take over private prosecutions in highly politicized cases, should the lawyer discover his own arse allegedly.

  2. Puckish Rogue 2

    This is why you’re one of the few people on here I take seriously

  3. Enough is Enough 3

    Brilliant fair and reasoned post.

    Well done Tracey

  4. Colonial Rawshark 4

    +1 Tracey

  5. dukeofurl 5

    You have to laugh at the idea the prosecutors are servants of the court and have a duty not to mislead.

    Hahahah

    Of course the prosecution acts in the name of the Queen as well.

    That too is a big joke.

    Tracey you must live in a fantasy world if you really really think all this mumbo jumbo is true.

    Remember the Supreme court judge who had to be practically dragged from the bench because he didnt stand aside when he should have.

    Ordinary lawyers are notoriously venal, and dont get be going about prosecutors

    • left for deadshark 5.1

      venal,
      Please expanded.

    • Tracey 5.2

      It’s “true”. It may not be enforced, but it is true, hence my emphasis on enforcement.

      • dukeofurl 5.2.1

        Funny how the C Of A was all concerned about a minor breach in the Banks case but in the Red Devils motorcycle case about 10 years ago didnt worry about faked prosecution, planted evidence, forged signature of registrar.

        Didnt seem to be enough prosecutional misconduct in that case even though it was thrown out by District and High court judges previously.

        Normally the CoA lets it go when the misconduct is ancillary to the original charges.

        The dates of a lunch were only one part of the evidence, there was evidence Banks called Dotcom to thank him for his donation etc. The lunch wasnt the be all for the conviction. Every one accepts Banks went to lunch with Dotcom ( to ask for money)

  6. Gareth 6

    John Banks broke the law. That much is not in dispute.
    He either did it unwittingly, in which case he’s stupid, or he did it knowingly, in which case he’s a criminal.
    He knew SkyCity was donating to his campaign, but he signed a document that declared the donation was anonymous.
    The Crown has failed to prove that he knew the donations were being recorded as anonymous.
    Personally, I believe John Banks is a smart guy, and since regardless of whatever DotCom has said, John Bank’s campaign did bank two cheques from DotCom for the same amount, dated the same day, it seems beyond belief that he would do that off his own bat unless John Banks asked him to.
    All John Banks had to do was check the donations document and record those donations truthfully and none of this would have happened.

    • dukeofurl 6.1

      Up to that point anonymous donations were a little game played by all politicians.

      They thought it was all about whether the donor wanted his name published, most didnt, so they would put it down as ‘anomymous” as in dont let the public know.

      Banks initially tried to use a legal principle that makes executives who sign documents in a casual way not responsible for any errors . his team tried to distance him from filling in the form and they claimed he just signed it as a matter of course.

      That didnt work out for him, but the Sky City cheque he walked out the door in his pocket had to be returned because it was in his own name rather than Team Banksy,

      So he got away on the technicalities on that one and so looked hard on other minor descrepancies with Dotcoms evidence

    • Clemgeopin 6.2

      “He either did it unwittingly, in which case he’s stupid, or he did it knowingly, in which case he’s a criminal”

      I think the major injustice here is that John Banks has been let off without any consequences for his possible misdeeds. That hasn’t been disproved!

      The courts could have criticised/censured the SG if any, but allowed a retrial nevertheless to test the voracity and truth of the so called new evidence from some two unknown/elusive Americans. Who are they? Are they reliable witnesses? Did they have a beef with KDC for some reason? Did they receive any money/gifts from Banks team or his wife for producing that new affidavit? Was there some misunderstanding/brain fades from any one involved in the case about the dates of the donation requests etc. There are too many unanswered, non cross-examined legitimate questions. For those reasons I think a retrial decision would have been more appropriate and the justice served better.

      As for Banks being stupid or Criminal, he certainly is not stupid, unless he ‘just came up the river on a cabbage boat recently’.

      http://www.listener.co.nz/commentary/the-internaut/john-banks-and-the-whole-cabbage-boat-business/

      • tracey 6.2.1

        He did have to resign as an MP sucking on the public teat?

        • leftie 6.2.1.1

          @Tracey.
          So? Do you think that is enough punishment? The nature of his crimes didn’t change, he shouldn’t have got off. He should have faced a retrial, where it was more than likely he would have still been convicted for a second time.

          • tracey 6.2.1.1.1

            Did I say that? I was merely pointing out he had not suffered no consequence as suggested by Clem.

            On what basis do you think he would have been convicted a second time.

      • leftie 6.2.2

        @Clemgeopin

        +1

  7. Stuart Munro 7

    Self-inflicted, no pity.

    • Tracey 7.1

      I am not suggesting you or I feel pity for him. I consider he is failing to accept that HE has played a part on the “hell” and “torture” he claims his family has endured. That would require him accepting personal responsibility for his own actions in this (not bothering to read something before declaring it was a true and correct reflection of the donations) and his part in his family’s suffering. had he done that I might feel some pity for him but he is oblivious to anything but the myth he has built in his own mind that he is Honest John.

      • Chris 7.1.1

        Given the original reasons the CA gave for overturning the conviction, do you think the result of a retrial would have been different (but for the recent acquittal, of course)?

        • tracey 7.1.1.1

          I’m not sure I understand your question Chris?

          Do you accept that he made a Declaration that the information in the donations form he was signing was true and correct to the best of his knowledge?

          • Chris 7.1.1.1.1

            A retrial was initially ordered because the CA regarded affidavit evidence that was ruled inadmissible at the first trial was admissible and that it had the potential to change the outcome. We don’t know for sure what the outcome would have been, of course, but that is why the CA ordered the retrial.

            I’m not questioning the significance of what’s since happened that has resulted in the CA issuing the acquittal following the recall application. I guess all I’m asking is whether you think the result of the retrial, had it gone ahead, would have been different, whether because of the inclusion of the further evidence or any other reason.

            • tracey 7.1.1.1.1.1

              Ah, thanks I understand the question. I will have to ponder but my thinking is that the C of A may have quashed the retrial as an admonishment to the Crown for its breach of ethics and obligations under the Practitioners Act, rather than on the basis that a new trial would have aquitted Banks.

              • Chris

                Yes, precisely, it did, which for me leaves the question over Banks’ guilt unanswered. I’m not belittling the significance of the Crown’s behaviour, but Banks was so quick to start prancing about as if he was cleared of any wrongdoing, which isn’t the case. I think this is lost on many, especially the way it comes across in the media. Fair enough, there’s now no retrial and Banks is free do what he likes, including stand for mayor. But the same doubt left following the CA’s initial decision to overturn the conviction and order a retrial is in fact still there.

                • tracey

                  I agree. BUT rest assured, Banks has suffered and feels damaged otherwise he wouldn’t have gone on his two-day circuit to change the facts.

  8. dukeofurl 8

    Lets look at another case of prosecutor misconduct that was thrown out by the High Court. back in 2002.

    “The Court of Appeal has unanimously overturned a stay of criminal charges laid against 20 associates of the Red Devils motorcycle club,
    ordered after revelations of police misconduct during an investigation.”

    So what was this misconduct, did someone leave a document in their briefcase ?
    Oh no, it involve faked charges and deceiving the court, forging signatures, the lot.

    “Undercover cop Michael Wiremu Wilson had infiltrated the Red Devils.
    To strengthen his credibility in the gang, police arranged for a fake search warrant of hislock­up in which they had placed apparently stolen equipment and drug paraphernalia.Police forged an illegible signature of a court deputy registrar, and arrested Wilson. Wilson appeared on several occasions before judges, who all believed they were dealingwith a genuine case.
    Soon after Operation Explorer ended, police sought to have Wilson’s charges withdrawn.
    http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=11140391

    So the Crown appealed the High court stay to the court of Appeal. Its interesting that the fakery involved Inspector Grant Wormald who was behind the raid on Kim Dotcom and the illegal actions there.

    The Court of Appeal didnt seem to find this a problem when he it wasnt a rich and powerful person, Red Devil motorcycle gang members arent entitled to the same judicial system as John Archibald Banks

    Im trying to find a link to the Court of Appeal decision but their website doesnt seem to give more than a months worth of decsions

    • tracey 8.1

      “prosecutor misconduct”

      police misconduct. Nothing you wrote points to a lawyer’s misconduct?

      • dukeofurl 8.1.1

        The police acted as prosecutors then and still do to this day.

        The falsity of their prosecution is breathtaking yet it was all batted away by the CoA

        The extra detail showed Detective Superintendent Drew even made up a false procedure in order to mislead the High Court judge . However its clear the ‘Crown’ forced him into this backtrack to provide the original procedure.

        Interesting that they considered a ‘stay of prosecution can not be used for disciplinary purposes’ [55]

        Yet the the Banks case the Court did exactly this, the procedures were different but the Crown was punished ‘because they misled the court’

      • dukeofurl 8.2.1

        The court said that case :

        However, when balanced against the weak causal link between the
        misconduct and the trial and the public interest in having serious criminal charges
        determined on their merits, we have concluded that it would not be an abuse of
        process for the trial to go ahead [118]

        One rule for Banks another rule for motorcycle gang members.

        Im not a lawyer but it was funny to see Appeal Court trawl through practically every other commonwealth court including Jamaica to find reasoning to support their decision but in the end it came down to let a trial take place- but now its not.

  9. Penny Bright 9

    Yes – I agree that the Crown should follow lawful due process – and there should be consequences if they do not.

    However – I believe that it would be a greater ‘miscarriage of justice’ for there not to be a retrial.

    I look forward to the transcript of the Police interview of John Banks being made available for public scrutiny, and for the Solicitor-General to appeal this Court of Appeal decision.

    If John Banks knew the identity of Kim Dotcom as a donor – he should not have signed off those 2 x $25,000 cheques as ‘anonymous’.

    John Banks should not have delegated the responsibility of compiling his ‘candidate’s returns’ to his Treasurer, who was not present at all meetings where donations were discussed or solicited.

    Let’s not get back to the scenario where those at the highest level of political power and authority are some type of ‘protected species’ to whom the rule of law does not equally apply?

    Penny Bright

    http://www.pennybright4mayor.org.nz

  10. Nick K 10

    I am not surprised that he has turned his attention/anger to Kim DotCom and the Solicitor General. The former is misdirected and the later a tad ironic.

    You must have missed the part where KDC was caught lying about the date of the so-called lunch, or where he changed his story (after the Americans were located) to say there were two lunches.

    • One Anonymous Bloke 10.1

      You must have missed the part when the Court of Appeal, in it’s judgement, let him off on a technicality, and the part where he signed a false election return, and the part where he admitted discussing donations with KDC.

      And the part where he didn’t get prosecuted for falsely reporting the Sky City donations because the time limit expired.

      • dukeofurl 10.1.1

        Thats a bit incorrect , the Sky City cheque that Banks walked out the door with in his pocket after asking for the money, had to be returned and re written with the name Team Banksy.
        This change led to the possibility that Banks didnt know that the final cheque was the same as the first cheque. ( Banks claimed he put the envelope in his pocket and didnt look at it- but he was never in the witness box to be tested on this)

        The time limit applied to both KDC and Skycity so was a different charge.

        The Skycity cheque was the one that started the ball rolling as Trevor Mallard complained to police when they put the donation in their annual report, and it wasnt on Banks declaration.

        Kim Dotcom only piped up after all the publicity because of Mallards move

      • Nick K 10.1.2

        And the part where he didn’t get prosecuted for falsely reporting the Sky City donations because the time limit expired.

        Wrong, again. That formed part of the charge and Justice Wylie found he was not guilty of that.

        • One Anonymous Bloke 10.1.2.1

          …lets also not forget why all this happened. John Banks filed a false return of election donations for the 2010 Auckland mayoral election. If he hadn’t – if he’d just taken the time to read the papers being submitted under his signature – then things would have been quite different.

          I’m happy to let Professor Geddis have the last word.

          No, wait, I just want to add that John Banks is criminal hatemonger trash.

  11. Nick K 11

    Penny, Kim Dotcom didn’t give John Banks a cent.

    • One Anonymous Bloke 11.1

      That’s right: KDC gave him two cheques for $25,000 each, and Banks signed a false election return that described them as “anonymous”, then lied to the media about it, then gave a completely different account of himself in court.

  12. Penny Bright 12

    Let us be reminded of what ‘honest’ John Banks said to the Police when they interviewed him.

    Looking forward to the transcript being made publicly available & can’t quite understand why it isn’t already, given it was played in Court?

    The ‘legal food chain’ is not yet exhausted.

    Proceedings do not stop at the Court of Appeal – there is still the Supreme Court…

    • dukeofurl 12.1

      Penny, a possible appeal grounds could be the CoA has withdrawn the retrial and ordered an aquittal because they “punished Crown law” for their mistake in ‘hiding’ the changed evidence.

      Its a big no no, as the Court has said on previous occasions, to use it powers to punish an error in procedure.

      Its clear this is the reason as they were in high dudgeon over the error

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