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What’s in a glance?

Written By: - Date published: 3:37 pm, October 26th, 2013 - 50 comments
Categories: act, election funding, john banks, john key, local body elections, national, national/act government - Tags:

John Banks’ lawyer David Jones QC has consistently argued that Banks could not have signed a false declaration of election donations because he did not read it before he signed it. He simply signed it relying on the assertion of his campaign manager that it was correct. Jones has dropped all other arguments and presumably this will be the main thrust of his submissions for judicial review in the High Court this coming week.

But  Banks’ campaign manager’s evidence as reported by Judge Gittos in committing Banks for trial and here in the Herald was that Banks  “glanced at it before signing it.” The Oxford dictionary defines “glance” as “take a quick or hurried look;” “read quickly or cursorily” as in “I glanced through your personnel file last night.”

So Banks did read the donations return. There are no prizes for guessing as to why that read might have been cursory. There is also an email from Banks’ own  Press Secretary asking for a correction in the Herald to say that he did read the return, which may be further examined at a trial. It is referenced to Banks’ treasurer saying in his evidence to the police that they “spent more time” on the expenses section which implies that at least some time was spent on the donations section.

The other matter worth further examination is that of the donation of free radio time to the Banks campaign. $15,690 was recorded as an anonymous donation as well as an expense, and the donor stated in his evidence to police “how Banks solicited help from him so he donated $15,000 worth of advertising.” Even a cursory glance may have spotted that similarity, particularly as the same Treasurer was at pains to point out that Banks took a great deal of time and trouble over the expenses section of the return.

Graeme McCready would not have been able to bring any evidence on that issue, as the donor’s name had been redacted from the police report. Presumably it can now be further examined in court, particularly as it formed part of the original complaint from Trevor Mallard MP.

The law may yet surprise us, but it is hard to see how Banks can survive much longer. No wonder John Key’s keen to talk up his new suitors.

50 comments on “What’s in a glance? ”

  1. QoT 1

    If it’s clearly established that Banks was soliciting anonymous donations, it becomes even more unbelievable. Why wouldn’t he have checked the return to ensure the anon donations were noted as such?

    • Tracey 1.1

      it seems Mr Jones is arguing signing a document that asserts one or more things has no status if the person doesnt read it… a strange legal submission imo.

      Mr Banks clearly CHOSE to sign something which verified a numbe rof things WITHOUT reading it (which is stupid but surely fraudulent too). If he glanced at it, then he was not relying upon the campaign manager. Lastly, the campaign manager was not present with Mr Banks when he got money from Dotcom and Sky so could not have given banks any accurate information about the contents of the form.

      It’s torturous…

  2. woodpecker 2

    I can drive as fast as I like, just as long as I don’t glance at the speedo?

  3. red blooded 3

    And it’s OK to falsify a document by signing it (and thus signalling that I have examined and approved its content)? Surely even if this bizarre claim was true, it would be a sign of extreme negligence and slack (if not illegal) practice?

  4. tc 4

    Albatross ! Feeling a little motion sickness Shonkey ? We have just the cure and it aint a nutty born again whiteboy its a very long holiday watching your blind trust power and mining shares ride the waves.

  5. mickysavage 5

    It is called plausible deniability.

    It is a state that if achieved lets someone say that A is not true even though A is true.

    People engaging in this sort of behaviour should be prosecuted within an inch of their political lives and should never be elected again.

    Because they bring every other elected representative, good and bad, into disrepute.

    PS Mike I went to the counter of the Auckland District Court and tried to get a copy of the decision but for some strange reason I was told I had to apply in writing and not by email for a copy and I also had to state the reason why I wanted it.

    I also emailed the District Court’s media person for a copy but have had no reply.

    Strange really because there are all sorts of decisions available on the web at https://www.courtsofnz.govt.nz/from/decisions/judgments

    But not this one …

    • Mickey,

      The District Court does have a very odd sense of ownership of its decisions – especially as they are public records, to which you should have access just because you want it (bugger this having to “give reasons” for getting the judgment!)

      That said, McCready stuck the decision up on his website: http://www.dodgyjohnhasgone.com. I had to get help from a competent person to access the pdf, so if you can’t open it, drop me an email and I’ll flick the file on to you.

      • BLiP 5.1.1

        . . . But Banks’ campaign manager’s evidence as reported by Judge Gittos in committing Banks for trial and here in the Herald was that Banks “glanced at it before signing it.” The Oxford dictionary defines “glance” as “take a quick or hurried look;” “read quickly or cursorily” as in “I glanced through your personnel file last night.” . . .

        Indeed, although Judge Gittos refers to the witness not as “campaign manager” but as “Treasurer”. Whatever is actually correct, I understand from here that the witness cannot be named so it might be an idea to keep an eye open for any poster inadvertently putting it on The Standard.

        Anyhow, in his judgement, Judge Gittos reaffirms your point when, at paragraph 25, he says . . .

        . . . I note that the return form concerned has four pages of listed donations. This comprises 67 in all, 45 of which are shown as from anonymous donors. There are 5 entries of $25,000 all of which are shown as “anonymous donation”. Although [the Treasurer] says that Mr Banks did not read this material but simply glanced at it, it is apparent on the face of the document that minimal attention to the form would be required to see whether the two $25,000 donations from Mr Dotcom’s company had been correctly attributed . . .

        A “glance” certainly covers “minimal attention” but, I wonder, which of the four pages of the return featured the five entries of $25,000. I mean, if the five entries were all on page one of the donations section then, IMHO, its game over. However, what say the five entries were spead over the four pages? Is there any way we can get a copy of the return?

        It seems an unjust point of law that, according to Judge Gittos, “it is not sufficient to show that Mr Banks signed the form recklessly” because that is exactly what he did, and, I contend, deliberately so. There is, however, a glimmer of hope in the Judge’s next sentence . . .

        . . . If he is to be committed for trial there must be evidence to support the charge to a prima facie level to show that he had actual knowledge of the false information or wilfully shut his eyes to the obvious . . . “

        Wilfully. Shut. His. Eyes. To. The. Obvious. <—- BINGO!

        As it happens, I suspect John Banks, rather than glance at the pages listing the donations, actually carefully checked to make some were, in fact, listed as "anonymous". Why else would he tell Kim Dotcom he would be better able to help Mr Dotcom if no one knew about the $50,000 campaign donation?

        IANAL

        EDIT: Ooops, didn’t mean this to go here, but I will reply and say that I had no trouble reading the judgement once I downloaded it. For some reason it wouldn’t come up in my Firefox reader online – probably because I’ve turned the auto updating feature, or some other PEBKAC error.

        • ghostwhowalksnz 5.1.1.1

          Banks difficulty is that he hasnt testified about what HE did when signing the form.

          They are relying on an ‘observer’ to pass on what happened, and of course a QC with 80 pages of judgements about what it all means.

          Gittos alluded to this, that Banks needs to get in the witness box and tell the court his version.

          But of course, Banks has a” lot to fear and a lot to be afraid of” , as the prosecution will ask him about soliciting the donations and what arrangements he gave to the donors to anonymise the money.

          As the prosecutor will say:
          “I put it to you Mr Banks, that you arranged the donations, and in one case gave instructions of how it would be anonymous, and then when it came to sign the form you knew the intimate details of who the donors were and deliberately signed knowing it was untrue as this is what you intended from the beginning”

          But of course Banks will not sit in the witness box, but sit in the court room, and later appeal everything if it goes against him

      • mickysavage 5.1.2

        Cheers Andrew.

        Penny Bright is obviously far more capable than me 😀

      • Penny Bright 5.1.3

        FYI http://www.dodgyjohnhasgone.com. is NOT Graham McCready’s website – it is mine.

        Lisa Prager and myself made the initial complaint to the Police, about John Bank’s alleged electoral fraud.

        (Trevor Mallard made his complaint to the Electoral Officer – which was then forwarded to the Police).

        I have been working very closely with Graham McCready on this matter.

        There is significant public interest in this matter, and with the Solicitor-General now assuming responsibility for this case, now that it has been committed to trial, it is going to be quite historic, for a number of reasons ….

        Cheers!

        Penny Bright

        (For earlier attempts to hold John Banks accountable as a former fellow Director of Huljich Wealth Management NZ Ltd – check out http://www.pennybright4epsom.org.nz )

        Not successful on that front – but had a go! 🙂

  6. amirite 6

    I have a very bad feeling that the case will be thrown out. I don’t have much faith in our judiciary.

    • Chris 6.1

      I’m inclined to agree with you amirite.

      Particularly now that Crown Law is taking over the case.

      Call me a cynic, but why would Crown Law take over a case already ruled out by Police in the first place.

      • karol 6.1.1

        Call me a cynic, but why would Crown Law take over a case already ruled out by Police in the first place.

        Because McCready asked them to. Partly a matter of McCready not being able to easily afford to keep going.

        • Chris 6.1.1.1

          Yes, but they don’t usually take over such cases. Personally I would have like to see the Solicitor who offered his services free of charge to continue the case.

          For any credibility Crown Law should have stepped in at the outset when Police failed to prosecute.

      • Mary 6.1.2

        So that they can deliberately botch it so that Banks walks free? Perhaps they’ll concede enough at the judicial review proceeding to give the judge enough to say Banks can’t be tried?

        Or perhaps Crown Law’s taken it over now that the District Court has committed Banks to trial? The ealier decision was simply made by the police not to prosecute. Now that a court has said there’s enough evidence to go ahead Crown Law will want to avoid looking like government lackeys in the event McCready was successful and Banks was found guilty. Crown Law taking things over will be more about avoiding accusations of cronyism within government.

    • Tat Loo (CV) 6.2

      I have a very bad feeling that the case will be thrown out. I don’t have much faith in our judiciary.

      You should have a bit of faith. The courts were one of the few parts of the system which worked pretty much as intended over some very difficult issues with constitutional implications – including the Urewera raids and the Kim Dotcom raids.

      • I have a very bad feeling that the case will be thrown out. I don’t have much faith in our judiciary.

        Yeah – this seems a somewhat odd statement, given that Judge Gittos has just committed Banks to trial on the charge!

        • RedBaronCv 6.2.1.1

          Since you are around Andrew, and I don’t have anything like your faith in the justice system or for that matter the police complaints authority etc.etc.
          Is he likely to be put up or able to bargain about some lesser charge, that see’s it all swept out into the back room, where he suddenly gets diversion as a first offender.

          • bad12 6.2.1.1.1

            Banks tho is not a first offender…

          • Andrew Geddis 6.2.1.1.2

            Is he likely to be put up or able to bargain about some lesser charge, that see’s it all swept out into the back room, where he suddenly gets diversion as a first offender.

            I guess anything could happen … but if the SG took over the issue and then proceeded to find a way to keep it out of court, revolution should commence. And I don’t think the SG is in the business of provoking revolution, even to try and save Banks’ skin.

      • Ugly Truth 6.2.2

        You should have a bit of faith.

        Faith is the cornerstone of the idea that everyone is equal under the “law” of the state.

        Much of the religious heritage of the Westminster system comes from the Roman Catholic Church. The word catholic, from the Greek katholika, means universal.

        • Chooky 6.2.2.1

          @ Ugly Truth

          A real ordeal
          Justice for the Anglo-Saxons and even after the Norman invasion of 1066 was a combination of local and royal government. Local courts were presided over by a lord or one of his stewards. The King’s court – the Curia Regis – was, initially at least, presided over by the King himself.

          Today, going on trial in an English and Welsh court is not exactly a comfortable experience. But it’s far better than trial by ordeal, used until almost the end of the 12th century to determine guilt or innocence in criminal cases.

          Under this system, the accused would be forced to pick up a red hot bar of iron, pluck a stone out of a cauldron of boiling water, or something equally painful and dangerous.

          If their hand had begun to heal after three days they were considered to have God on their side, thus proving their innocence. The number of ‘not guilty’ verdicts recorded by this system is not known.

          Another, extremely popular ‘ordeal’ involved water; the accused would be tied up and thrown into a lake or other body of water. If innocent, he or she would sink.

          There were two problems with this method, which was often used to try suspected witches: the accused was tied right thumb to left toe, left thumb to right toe, which made it almost impossible to sink; and opinion is divided as to whether those who did sink were fished out afterwards.

          William II (1087-1100) eventually banned trial by ordeal – reportedly because 50 men accused of killing his deer had passed the test – and it was condemned by the Church in 1216.

      • David H 6.2.3

        Especially as Crown Law have now taken over the case.

    • bad12 6.3

      Amrite that’s a fair enough comment, i wont go into the details but back in the dark days of the early nineties i had the Government appeal a Housing Tribunal decision that was in my favor,

      For the Disrtict Court appeal i had a Doctor of Law with me and laughably needn’t have bothered as the Judge,( i laughingly accuse of being specially imported from Hong Kong for the occasion),basically told Him to shut it and dismissed my original case out of hand,

      Needless to say the good Doctor was shocked at His treatment and had no understanding of how i could have been so jolly having expected the very outcome that that particular Judge delivered,(tho not the abusive manner of it’s delivery),

      We will tho just have to wait and see as far as the outcome of Banks’s prosecution goes, i think tho the process has gone far too far for a District Court Judge to simply ‘throw it out’…

  7. Anne 7

    Look forward to Andrew’s response RedBaronCV, but I imagine this might be one piece of political interference too far. The original police investigation had a very strong smell of ‘political guidance’ about it. They surely wouldn’t get away with it a second time.

    • RedBaronCv 7.1

      Diversion is a funny thing. It’s the sort of no punishment punishment that avoids a court case. mean’t originally to help the young and stoopid ( we were all there once) not be tarred for life.It’s got rules around it, which the police seem to avoid if it suits them.

      Police will also bargain down the charge sheet, get a guilty plea to a lessor offence and withdraw more serious charges … so they are not wasting public money..

      • bad12 7.1.1

        Banks already had a previous conviction in the Wellington District Court, i would be betting that should Banks be convicted of this present charge, and god knows how He can fail not to be, Banks’s Legal Eagle will argue for a discharge without conviction on the basis that a conviction will force Him from the Parliament when the commission of the offence was not at the time He was an MP…

      • ak 7.1.2

        Actually a current departmental directive…..with of course the very felicitous political outcome of reducing crime stats…..

  8. bad12 8

    Having not gone too deeply into the semantics of the case against Banks with Graham McCready,(my role as i see it was to offer Him the financial help, now not needed in this particular case, to ensure the prosecution of Banks continued), it is hard to give any sort of complete overview with any precision in the one comment,

    There are two points tho that i think should be made quite clear, the first being that it is glaringly obvious that John Banks personally sought and excepted donations from a number of parties knowing who those parties were and later claiming these parties were ‘anonymous’

    The second point, the electoral return that John Banks signed is in effect a statutory declaration, the person signing such a declaration by law has the onus of ensuring that such a declaration is true and correct,

    i fail then to see, how Banks can then claim to be innocent on the basis that He relied on the correctness of the document on the word of a third party, Banks with deliberation or not having not read the document is still guilty of having provided a false return and His actions surrounding a number of supposedly ‘anonymous’ donations which were patently not ‘anonymous’ shows a clear intention to supply a false declaration which He did…

  9. Mary 9

    While I think Banks knew what he was doing and for that reason broke the law, I don’t think you can use dictionary definitions of words used by witnesses in evidence to suggest the truth of one thing or another. The courts do, of course, use dictionary definitions to ascertain the ordinary meaning of words, but usually only in relation to words in statutes or other instruments and usually only in the absence of a statutory definition. The meaning of words used in evidence is ascertained by way of examination and cross-examination, not the dictionary, so you can’t say Banks read the returns just because someone said he “glanced” at them together with what the dictionary says “glanced” means.

  10. ak 10

    The Glancer precedent. Coming to a Farcentre near you. In the country formerly known as quite passable.

  11. bad12 11

    What does tho worry me about the District Court decision that committed Banks for trial is the ‘get out of jail free card’ it appears to contain for Banks,

    The District Court saying that the case hinges upon ‘what was in Banks mind’ at the time He signed the financial return in my opinion is wrong and hopefully the Crown Law Office develops a robust argument to counter the point that the District Court made there,

    IF, as i contend that it is, the electoral return of finances that Banks signed is a Statutory Declaration then the onus of it’s correctness rests solely upon John Banks, the fact that it is obviously incorrect is then a crime no matter what John Banks was thinking when He signed the document,

    To prove that ‘The Crime’ was committed in the case of a Statutory Declaration only two things need be present, ‘the fact’ proven that the document is incorrect, and, ‘the fact’ that it was signed by the person with the legal onus of submitting that the declaration was correct…

    • BLiP 11.1

      IF, as i contend that it is, the electoral return of finances that Banks signed is a Statutory Declaration then the onus of it’s correctness rests solely upon John Banks, the fact that it is obviously incorrect is then a crime no matter what John Banks was thinking when He signed the document.

      No mention of that in the judgement which, if you are correct, seems odd. The Judge did say that John Banks would have to have “actual knowledge of the false information”. From this, and taking into consideration your contention that the electoral return of finances is a Statutory Declaration, what responsibility falls on the person who filled in the details? If liability falls to John Banks’ “Treasurer” – who is a JP – then, perhaps, the slippery bugger Banksie can wriggle out of his obligations on that regard???

      • bad12 11.1.1

        Blip, as far as Banks wriggling out of the current criminal charge goes, He will only be allowed to do so if the system gives to Him that wriggle room,

        No mention of the ‘legal standing of the financial return document’ might be a simple reflection that Graham McCready did not canvas this area in the pre-trial hearing,(the legal status of the financial return signed by Banks was one of the few areas of Law i did discuss with McCready with regard to it being a Statutory Declaration and i do think He hadn’t considered the ‘legal status’ of the document it’self, hopefully the Crown Law Office will),

        It becomes complex doesn’t it, ‘Actual knowledge of the false information’ i would contend is proven from the earlier efforts of Banks when accepting donations He personally uplifted from the donors which shows the intent and knowledge by Banks that He intends for such donations to be declared anonymous and ‘what was in Banks mind’ when He signed the financial declaration is then made immaterial by His earlier actions surrounding His personally uplifting the donations from the donors…

      • bad12 11.1.2

        Blip, having read your very informative comment posted further up the thread Banks actions at the point where He signed the financial return, the wriggle room for Banks is reduced to the minute by the Judges comment, ”Willfully shut His eyes to the obvious”,

        Considering the corroborated evidence of Morrison from Sky-City and Dot-com, ‘Intent’ is blindingly obvious and as you say, Bingo!!! Banks simply and ‘willfully shut His eyes to the obvious’ when signing the financial return…

  12. Sable 12

    I recall a judgement not that long ago where a pair of corporate crooks were found guilty of fiddling vast sums and the most they got was home detention. If Banks is found guilty and its highly unlikely he will be then the most he would face is a small fine.

    Its OK to be a white collar crook in the banana republic of New Zealand. Just look at the outrages being committed by the scoundrels running or is that ruining the country.

    • ghostwhowalksnz 12.1

      Yes of course he will have a small penalty, but the point is he cannot stay in parliament once his conviction is entered, as the MAXIUMUM penalty is 2 years jail.

      Plus his previous run in with the law where he claimed’ he knew nothing’ regarding the financial services company he ran with a friend

      • ghostwhowalksnz 12.1.1

        Heres the previous case where Banks signed a misleading statement

        “Labour MP Phil Twyford has tabled a petition calling for an investigation into the decision not to proceed with charges against John Banks and Don Brash as directors of the Huljich KiwiSaver scheme.

        Twyford won’t comment on the petition, which is the work of former Auckland mayoral candidate Penny Bright who is incensed that Banks, the minister for regulatory reform, escaped having to defend himself in court for signing a prospectus that contained false and misleading statements.”
        http://www.stuff.co.nz/business/6555638/Petition-stalks-Banks-Brash

        But course 2 years previously ( 2010) Banks announced he was having a major day to day role in the business

        ‘John Banks is to become executive chairman of Huljich Wealth Management and says he is looking forward to the new role.
        “I’ve been a founding shareholder and a director of the company since its inception in 2007. On 1 November, I’m able to return to a more substantial role and am very pleased to be taking on this additional responsibility.”
        http://www.sharechat.co.nz/article/c4d16031/john-banks-becomes-chairman-of-huljich.html

        Of course his defence at the time, was he ‘didnt know what he was signing’

        • Sable 12.1.1.1

          Yes, exactly. Keys has too much to loose to see Banks prosecuted. As to Labour they are in opposition and the media don’t like them, it does not matter what they think. Watch as it all fades away…..

        • Anne 12.1.1.2

          Historical comment from Brian Rudman makes interesting reading in more ways than one.

          Bloodhounds yet to sink teeth into ‘hatchet job’ leaflet

          Remember the hatchet job done on Dick Hubbard with an allegedly illegal leaflet distribution in the Eden/Epsom region? Surprise, surprise, the police were reluctant to conduct an investigation into that piece of questionable activity involving one, Mr John Banks too.

  13. veutoviper 13

    I have only just read this post and comments, and note that Andrew Geddes has not been back although RedBarronCv @6.2.1.1 and Anne @7 were hoping for more comments from Andrew.

    Andrew has done two posts at Pundit on the case in the last two weeks which are worth reading together with the discussions in the comments.

    http://pundit.co.nz/content/nothing-to-hide-nothing-to-fear

    http://pundit.co.nz/content/to-the-last-i-grapple-with-thee-from-hells-heart-i-stab-at-thee-for-hates-sake-i-spit-my-las

    I/S @ NRT has also done two posts on his feelings re the Crown Law Office taking over the prosecution from McCready

    http://www.norightturn.blogspot.co.nz/2013/10/no-confidence-in-crown-law.html

    http://www.norightturn.blogspot.co.nz/2013/10/this-will-restore-confidence-in-system.html

    As I have said in earlier discussions on Open Mike 25 Oct (link at Karol’s 6.1.1.1.1 above), I also have some reservations on Crown Law’s involvement but hopefully, they will play straight and realise the public will be watching closely.

    Bad12 – interesting discussion and approach @8 re the electoral return effectively being a statutory declaration, but I would think that the provisions of the Electoral (?) Act under which the charges against Banks have been filed would take precedence. Haven’t got time right now to get the Act’s name right and the exact provisions, but my understanding from memory is that much hangs on the word “knowingly” in those provisions. Lots on this in Andrew’s posts and comments linked to above.

    • RedBaronCV 13.1

      Somehow my thoughts are along the :”norightturn” lines. Will we ever see this particular horse race at the starting line.

    • bad12 13.2

      VV, having read what Andrew Geddis wrote in the Pundit Blog and linking to the TV3 news item supplied by Andrew in the comments section of that Blog i now tend to agree with you,

      The case would seem to rest upon Banks ‘Knowingly’ signing a false return which is the crux of the actual charge Banks faces,

      This is quoted from TV3 and is from the evidence of Mr ‘H’ who handled the finances of Banks Mayoral campaign,

      ”At the end of the campaign He went over expenses with Banks in a meeting including the return of donations”

      ”He reassured Banks the papers were correct and the MP signed the documents without reading the donation return” unquote Mr ‘H’ who has name suppression which will lapse tomorrow unless Mr ‘H’ appeals,

      In the event that ‘Knowingly’ becomes the point that has to be proved we are nearly at the point of being presented with an impossibility,(put that one down to politicians writing Law which does not do what it is supposedly there to do, instead acts as a protection for politicians while giving the impression of being a curb against corruption),

      Having said that tho, there is a ray of light in the pre-trial judgment which questions whether Banks simply chose not to read the false return obviously knowing that what it contained was false from His prior actions in personally accepting the donations from Sky-City and Kim Dot-com,

      Can Banks be convicted because as Judge Gittos asks when committing him for trial, He may have not read the financial return ‘willfully shutting His eyes to the obvious’ so as to be able, if required at a later date, present a defense of not ‘knowingly’ signing a false return…

      • veutoviper 13.2.1

        Hi bad12 – just passing through but thanks for your reply. It is a difficult case IMO but for it to have got this far is a very positive thing. Must go now but hope to have more time tomorrow to respond more fully. Stay positive – both you and McCready!

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