Banks v R

• Jurisdiction: New Zealand
• Judge: Simon France J
• Judgment Date: 21 March 2017
• Neutral Citation: [2017] NZCA 69
• Docket Number: CA361/2016
• Court: Court of Appeal
• Date: 21 March 2017

Between

John Archibald Banks

Appellant

and

The Queen

Respondent

[2017] NZCA 69

Court:

Wild, Simon France and Duffy JJ

CA361/2016

IN THE COURT OF APPEAL OF NEW ZEALAND

Appeal against the High Court's dismissal of an application under s5 Costs in Criminal Cases Act 1967 (CCCA) to recover trial costs — the appellant successfully appealed his convictions on the basis of fresh evidence — the evidence related to discussions held at a lunch around the structuring of donations to the appellant's mayoral campaign and whether he had subsequently declared three payments to be anonymous when in fact he knew who the donor was — evidence from two people who had been present was later tracked down for the appeal — the appellant's application under the CCCA alleged that the evidence of the main prosecution witnesses in relation to the donations had been shown to be fabricated and that deficiencies in the evidence of those witnesses could and should have been discovered earlier had proper inquiries been made — whether the subsequent evidence showed that the prosecution case was based on fabricated evidence — whether the evidence should have been discovered earlier by the prosecution.

Counsel:

D P H Jones QC for Appellant

J R Billington QC and M J Lillico for Respondent

JUDGMENT OF THE COURT

A The appeal is dismissed.

B The appellant must pay the respondent costs for a standard appeal on a band A basis and usual disbursements.

REASONS OF THE COURT

(Given by Simon France J)

Introduction

1 Mr Banks, formerly the Mayor of Auckland, was charged in relation to electoral returns he filed for his mayoralty campaign. It was alleged that he declared three payments to be anonymous when in fact he knew who the donor was. One of the donations was from SkyCity and two were from Megastuff Ltd (the Megastuff donations). The latter company is an entity associated with Mr Dotcom.

2 The charge was found proved in relation to the Megastuff donations, but Mr Banks successfully appealed on the basis of fresh evidence. The history of the matter is set out in several judgments. 1 Following his acquittal, Mr Banks applied under the Costs in Criminal Cases Act 1967 (the Act) to recover his trial costs. A key claim of the application was that the evidence of the main prosecution witnesses in relation to the Megastuff donations had been shown to be fabricated. It was also contended that deficiencies in the evidence of those witnesses could and should have been discovered earlier had proper inquiries been made.

3 Both these propositions were rejected by Wylie J. 2 The application was analysed in terms of the statutory criteria, and was dismissed. Mr Banks appeals on the basis that Wylie J erred in these two pivotal assessments. Counsel for Mr Banks, Mr Jones QC, accepts there is no other error of principle, and the appeal depends on this Court reaching different conclusions from those of Wylie J in relation to either of these matters.

Relevant history

4 The Megastuff donations were made following discussions between Mr Dotcom and Mr Banks about donations. Prior to trial it seemed the main dispute would be about the content of those discussions, and whether Mr Banks had asked for the donations to be made anonymously. However, at trial the issue of when the discussions took place assumed importance, and then during the appeal process it became pivotal.

5 The Crown case was built around the evidence of Mr Dotcom, which was in turn corroborated by his then wife and Mr Tempero (his then security adviser). Mr Dotcom's evidence was centred on a lunch at his residence on 9 June 2010. He said:

• (a) he offered $50,000, which was accepted;

• (b) Mr Dotcom instructed Mr Tempero to arrange a cheque but Mr Banks intervened and requested the cheque be split into two;

• (c) Mr Banks said this was so he would not have to declare the source; and

• (d) this had happened while they were at the lunch table.

6 Mr Banks made a statement to the police in which he denied knowing of the Megastuff donations. He accepted he had discussed donations at Mr Dotcom's residence with Mr Dotcom and had explained that anonymity could be achieved. He had also provided bank slips. He was not aware, however, that donations had ultimately been made. Mr Banks said the only conversation between the two occurred away from the table in a conservatory area of the house. Mr Banks gave some detail about the layout of the conservatory.

7 At trial, Mr Banks led evidence concerning his whereabouts and that of his wife (Mrs Banks) on 9 June. This evidence established that they could not have been at lunch at Mr Dotcom's place on that day. It was instead suggested the lunch occurred four days earlier, on 5 June. In her police statement Mrs Banks had said “early June”. It was not raised with the prosecution prior to trial that the 9 June date proffered by the Crown witnesses could be shown to be incorrect.

8 Wylie J found that the lunch occurred on 5 June, but otherwise accepted the evidence of the prosecution witnesses. 3 His Honour expressly rejected evidence from Mrs Banks that there were others at the lunch, particularly two American

businessmen, and that there had been no discussion of donations at the lunch table as Mr Dotcom alleged. 4

9 Mrs Banks was piqued by the rejection of her evidence about the lunch. By the time of the appeal Mrs Banks had tracked down the two American businessmen. They provided affidavits confirming they had been at the lunch and that donations were not discussed in their presence. When confronted with this evidence, Mr Dotcom accepted its accuracy. He believed, however, there had been a second lunch on 9 June at which the donations were discussed, and that the two cheques were written that day.

10 The appeal process took an unfortunate turn. When the appeal was first heard, this Court was not advised about Mr Dotcom's revised position. The Court accepted the cogency of the new evidence, and noted that the Crown had relied on the events at lunch to establish Mr Banks' guilty knowledge. 5 The evidence was therefore important, and the appeal was allowed and a retrial ordered so that the evidence could be tested in context.

11 The information that Mr Dotcom accepted he was in error about 5 June was only disclosed after the appeal decision had been released. When that occurred, this Court was asked to revisit the matter, which it did. The Court noted that the High Court had rejected the possibility of the 9 June lunch date to which Mr Dotcom was now apparently returning. 6 The Court concluded that the Crown case, as presented in the High Court, was in sufficient disarray to make a retrial inappropriate. 7 A fact finder could not be satisfied beyond reasonable doubt. An acquittal was directed.

Applicable law

12 The application for costs fell to be considered under s 5 of the Act. That section was summarised by this Court in Jones v Civil Aviation Authority: 8

[10] Section 5(1) provides that where any defendant is acquitted of an offence the Court may order that he be paid such sum as it thinks just and reasonable towards the costs of his defence.

[11] Subsection (2) provides that without limiting or affecting the Court's discretion, in deciding whether to grant costs and the amount of any costs granted, the Court shall have regard to all relevant circumstances and in particular (where appropriate) to —

• (a) Whether the prosecution acted in good faith in bringing and continuing the proceedings;

• (b) Whether at the commencement of the proceedings the prosecution had sufficient evidence to support the conviction of the defendant in the absence of contrary evidence;

• (c) Whether the prosecution took proper steps to investigate any matter coming into its hands which suggested that the defendant might not be guilty;

• (d) Whether generally the investigation into the offence was conducted in a reasonable and proper manner;

• (e) Whether the evidence as a whole would support a finding of guilt but the information was dismissed on a technical point;

• (f) Whether the information was dismissed because the defendant established (either by the evidence of witnesses called by him or by the cross-examination of witnesses for the prosecution or otherwise) that he was not guilty;

• (g) Whether the behaviour of the defendant in relation to the acts or omissions on which the charge was based and to the investigation and proceedings was such that a sum should be paid towards the costs of his defence.

[12] Subsection (3) provides there shall be no presumption for or against the granting of costs in any case.

[13] Subsection (4) provides that no defendant shall be granted costs by reason only of the fact that he has been acquitted.

[14] Subsection (5) provides that no defendant shall be refused costs by reason only of the fact that the proceedings were properly brought and continued.

13 The focus on appeal is subs (2)(f), which concerns whether the defendant has established that he or she is not guilty. The two key arguments advanced by Mr Jones pick up on the “not guilty” aspect of that provision by...