Banks v R

• Jurisdiction: New Zealand
• Judge: Miller J
• Judgment Date: 19 May 2015
• Neutral Citation: [2015] NZCA 182
• Court: Court of Appeal
• Date: 19 May 2015
• Docket Number: CA428/2014

[2015] NZCA 182

IN THE COURT OF APPEAL OF NEW ZEALAND

Court:

Ellen France P, Wild and Miller JJ

CA428/2014

Between

John Archibald Banks

Appellant

and

The Queen

Respondent

Counsel:

DPH Jones QC for Appellant

Solicitor-General, M R Heron QC for Respondent

Application for recall of a decision to order a retrial following the quashing of a conviction, and for the substitution of an acquittal for the guilty verdict — Crown's case had rested on oral evidence from its principal witness as to a discussion at a lunch about making anonymous donations to the appellant's electoral campaign — witness said that the appellant's wife had been present — wife said there had been no lunch on the date the witness specified but that there had been one earlier that week which she had attended and that there had also been two American businessmen present - trial judge had accepted that the date of the lunch had been on the earlier date but rejected her evidence that the businessmen had been present and that no discussion on donations had taken place - wife tracked down the businessmen and obtained affidavits from them which supported her version — barrister interviewed principal witness and prepared memorandum that showed that he accepted the evidence that the businessmen were present and donations were not discussed but had reverted to his original statement that the lunch had occurred on a later date when neither the wife nor the business men were present — Court of Appeal was not told about memorandum on appeal - whether the failure to disclose the memorandum had led to a failure of process - whether there had been a miscarriage of justice as a result - whether an application for discharge filed by the appellant provided an adequate remedy.

The issues were: whether the failure to disclose the Butler memorandum had led to a failure of process; whether there had been a miscarriage of justice; and whether the s347 application gave B an adequate remedy.

Held: Under s385 Crimes Act 1961, the decision to order a retrial, or to direct a verdict of acquittal, was discretionary. The question was what justice required in the particular case. The Court had not sought to evolve hard-and-fast rules about the exercise of this discretion ( R v Samuels). Rather, it had followed the “flexible” approach recommended in Reid v R, where the interests of justice might require balancing a “whole variety” of factors, not all of them confined to the interests of the defendant and the prosecution in the particular case.

In general, the same approach was taken in judge-alone cases. However, judge-alone cases differed in one important respect: because the appeal court had the benefit of reasons, it was better placed to evaluate the verdict. The Court might equally be in a better position in a judge-alone case to decide whether the evidence was insufficient for a reasonable and properly directed jury to convict, were a retrial to be ordered, or whether the retrial would afford the Crown an unfair opportunity to improve upon its case.

The recall jurisdiction was reserved for exceptional cases. The Court was careful not to undermine the principle of finality, and it would not act where an alternative remedy was reasonably available to the applicant. The Court had made it clear that it would not allow applicants to use the recall jurisdiction to relitigate matters that had been closed.

It was not necessary to decide whether the Butler memorandum was a witness statement, or whether s13(6) CDA (entitlement of a defendant to information) required that it be disclosed as a statement of a witness at the trial that was the subject of the appeal. The Crown could not both withhold the memorandum and resist the appeal in the manner that it did. The effect was to mislead the Court. The Butler memorandum meant that the Crown could not reasonably resist admission of the new evidence. The Crown certainly could not invite the Court to discount the new evidence on the basis that it lacked cogency because K and S might not have been present when donations were discussed, or might have had no reason to recall such discussion. Yet it did resist admission, and on those grounds.

It was no answer to say that D had not signed the memorandum. It recorded a considered account, given in the presence of counsel and for the express purpose of establishing what D might say in a reply affidavit. If the Crown felt it necessary to confirm what he would say in evidence, steps should have been taken to get a statement signed.

There had been a serious error of process. It was attributable to an error of judgment rather than misconduct. Counsel considered that the Judge's findings did not depend on the evidence about what was said at the lunch on 5 June and believed that the Crown's obligations to the Court were met by the concession that K and S's evidence could be considered reliable.

The answer to whether the error resulted in a miscarriage of justice turned on whether a retrial would have been ordered had the Court known of the Butler memorandum. The appeal had rejected the Crown's contention that it did not matter when the lunch was held, because the conviction was justified by other circumstantial and direct evidence. But for the lunch the inference would not have been available that B had the donations in mind when he signed the return, without reading it, six months later.

A retrial was ordered for the orthodox reason that the K and S's evidence of had not been tested and should be assessed by the trial Court along with the other evidence. It was understood that the Crown would maintain at the retrial that donations were discussed at the 5 June lunch. In light of the Butler memorandum, no reasonable fact finder could now reach that conclusion. The memorandum recorded a considered admission by D that AB was correct when she said that the two Americans were present and donations were not discussed on that occasion.

The defence evidence at trial was that Mr and Mrs B could not have attended a lunch on 9 June 2010. In circumstances where the evidence at trial positively excluded 9 June, and the trial Judge made a finding to that effect, it would not be right to give the Crown a second chance to make out its case. It was analogous to the situation where the Crown tried to pursue a conviction on grounds it had previously abandoned or disclaimed, which was not allowed ( R v Douglas).

Suggestions that there were other meetings between D and B that AB did not attend would be an entirely new account, inconsistent not only with the evidence at trial but also with the Butler memorandum. This also would allow the Crown to improve on its case.

Other considerations were neutral. A retrial would be costly and burdensome for the defence, but that was offset by the need to ensure that electoral law was complied with and by the inherent seriousness of the particular breach alleged. Further, while the Crown's approach to disclosure was disapproved of, that consideration did not justify refusing a retrial in the circumstances.

Had the Court known of the Butler memorandum, it would not have ordered a retrial. The Crown's omission to tell the Court about it had occasioned a miscarriage of justice.

In terms of other remedies available to B, although the HC might discharge B for insufficiency of evidence, its decision would be made by reference to the evidence to be led at the retrial, complete with any improvements the Crown had been able to make to its case with benefit of a second opportunity. It was not appropriate to afford the Crown that opportunity. For that reason the s347 application was not an adequate remedy in the particular circumstances of this case.

The application was granted. The judgment was recalled and the retrial order cancelled. Direction that a verdict of acquittal be entered.

JUDGMENT OF THE COURT

The application for recall of our judgment of 28 November 2014 is granted. We cancel the retrial order and direct that a verdict of acquittal be entered.

REASONS OF THE COURT

(Given by Miller J)

Introduction

1 In our judgment of 28 November 2014 we quashed Mr Banks's conviction on one charge of transmitting a return of electoral expenses knowing it to be false in a material particular. 1 We ordered a retrial, which the Crown has elected to pursue.

2 Mr Banks has now moved for recall of our judgment, asking that we cancel the retrial order and substitute an acquittal for the guilty verdict entered at first instance. He has brought the application because he says the Crown knew, but did not tell us, that its principal witness, Mr Kim Dotcom, had changed his evidence when confronted with affidavits filed on appeal for the defence. He maintains that had we known the true position we would not have ordered the retrial.

3 The Crown resists the recall application, saying that the retrial order was orthodox, there are no sufficient grounds to substitute an acquittal, and Mr Banks has a remedy in the High Court, to which he has applied, citing the same grounds, for a discharge under s 347 of the Crimes Act 1961.

Narrative of the appeal

4 We will summarise the background briefly, assuming that the reader is familiar with our first judgment. For reasons given there, the Crown case against Mr Banks rested on oral evidence of an understanding reached between Mr Banks and Mr Dotcom over lunch at the Dotcom mansion at Coatesville. The gist of the evidence, given by Mr Dotcom, his wife Mona Dotcom and his head of security, Wayne Tempero, was that the two men agreed that Mr Dotcom would make two donations, each of $25,000, which would be treated for disclosure purposes as anonymous. But for that evidence, the Crown case must have failed.

5 It was said initially that the lunch happened on 9 June 2010, the day on which two cheques, each for $25,000, were drawn. It was Mr Dotcom's evidence that he thought the cheques were written on...