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