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after the Police failed to act, with breaching s134(1) of the Local Electoral Act (National and Banks have since repealed that section, but without retrospective effect).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.