Banks v The Queen

• Jurisdiction: New Zealand
• Judge: Wylie J
• Judgment Date: 14 July 2016
• Neutral Citation: [2016] NZHC 1596
• Docket Number: CRI-2016-404-000088
• Court: High Court
• Date: 14 July 2016

Under the Costs in Criminal Cases Act 1967

Between

John Archibald Banks

Applicant

and

The Queen

Respondent

[2016] NZHC 1596

CRI-2016-404-000088

IN THE HIGH COURT OF NEW ZEALAND

AUCKLAND REGISTRY

Application for costs under s5 Costs in Criminal Cases Act 1967 (Costs of a successful defendant) — the applicant had been charged under s134 Local Electoral Act 2001 (“LCA”) (false return) for declaring donations by Sky City and two donations made by Megastuff on behalf of Dotcom as anonymous when the applicant had unsuccessfully stood as a candidate in the 2010 Auckland mayoral election — under the LCA, the applicant was required to disclose in the return any electoral donation of more than $1,000 and the identity of the donor unless the donor made the donation anonymously — it was alleged that the applicant had known the identity of the donors — evidence subsequently admitted from two witnesses supported the applicant's claim he had not asked Dotcom to divide his donation in half to declare the donation as anonymous — whether the applicant was entitled to costs under s5 CCCA.

Appearances:

D P H Jones QC for the Applicant

J R Billington QC and M Wong for the Respondent

JUDGMENT OF Wylie J

Introduction

1 The applicant, Mr John Banks, seeks the costs of his defence, in relation to criminal proceedings brought against him by the Crown, from 3 December 2013 (being the date of a judgment by Heath J dismissing an application for review 1) to 1 August 2014, when he was sentenced by me. 2 Mr Banks seeks payment of indemnity costs ($190,210) or, in the alternative, costs in such sum, in excess of the scale of costs prescribed by the Costs in Criminal Cases Act 1967, as the Court considers just and reasonable.

2 The application is opposed by the Crown.

3 Mr Banks filed an affidavit. So did Mr Michael Heron QC, who, at all relevant times, was the Solicitor-General and the Chief Executive Officer of the Crown Law Office. Neither Mr Banks nor Mr Heron were called for cross examination. Rather the hearing before me was confined to the presentation of submissions.

4 The key issues were:

• (a) should Mr Banks receive an award of costs, following on from his acquittal?; and

• (b) if Mr Banks should receive an award of costs, what should be awarded?

Factual Background

5 Mr Banks was a candidate in the 2010 Auckland mayoral election. In the course of his electoral campaign he raised substantial funds to assist in meeting the costs involved. Ultimately his campaign was unsuccessful. Nevertheless, as a candidate in a local election, Mr Banks was required to file a return of electoral expenses. 3

6 A return was prepared on Mr Banks' behalf. He signed it and it was filed on 9 December 2010.

7 Pursuant to the legislation then in force, the candidate was required to disclose in the return any electoral donation of more than $1,000 made by a single donor. Further, the donor's name and address had to be disclosed, unless the donor made the donation anonymously. A donation was made anonymously if it was made in such a way that the candidate did not know who made it. 4

8 The return signed by Mr Banks disclosed many donations, including a number of donations of $15,000. Many of these were recorded as being anonymous. It also disclosed five donations of $25,000. All were recorded as being anonymous. None of the disclosed donations were attributed to Skycity Management Ltd (“Sky City”) or to Megastuff Ltd (“Megastuff”).

9 Pursuant to the legislation then in force, it was an offence to transmit a return of expenses knowing it to be false in any material particular. 5

10 Sometime after Mr Banks filed the return, it emerged that $15,000 had been donated to his campaign by Sky City and that two donations – each of $25,000 – had been made by Megastuff on behalf of Mr Kim Dotcom. It was alleged that Mr Banks knew who made these donations, but that they had been declared in the return as being anonymous.

11 A police investigation was commenced in May 2012. The investigation centred on whether the donations made to Mr Banks' campaign by Sky City and Megastuff had been accurately recorded in the return and, if not, whether Mr Banks had filed the return knowing it to be false. Mr Banks was interviewed twice as part of the investigation. A witness statement was taken from Mr Banks' wife, Amanda Banks. Witness statements were also taken from a number of others including Mr Dotcom, his then wife, Mona Dotcom, and his then security advisor, Mr Wayne Tempero.

12 The police investigation concluded in July 2012. The investigating officer recommended that no prosecution should proceed. This recommendation was

accepted, with the police taking the view that there was insufficient evidence to charge Mr Banks. 6

13 A private prosecution was then initiated by Mr Graham McCready. He swore an information against Mr Banks.

14 In November 2012, Judge I G Mill, in the District Court at Wellington, found, on the basis of the material obtained by the police in the course of their investigation, that there was a sufficient case to be tested in Court. 7 He directed that a summons should issue.

15 It later transpired that the first information was defective and a second information was then laid by Mr McCready. In April 2013, Judge Mill again concluded that there was substance to Mr McCready's allegation and he issued a fresh summons against Mr Banks. 8 This summons was served on Mr Banks in May 2013.

16 Mr McCready had earlier written to the Solicitor-General asking him to intervene in the prosecution. In June 2013, the Solicitor-General advised Mr McCready that, at that stage, he considered it inappropriate to intervene, but that he would re-assess the matter if Mr Banks was committed.

17 Mr Banks applied for a discharge under the then applicable provision – s 347 of the Crimes Act 1961 – on the basis that the prosecutor was unable to prove that he filed the return knowing it to be false.

18 Mr McCready applied for oral evidence orders in respect of various prospective witnesses. Mr McCready's application was heard by Judge E P Paul in the District Court at Auckland in September 2013. It was largely successful. In the course of his decision Judge Paul noted that, if the witnesses gave evidence

consistent with their written statements, there would be a prima facie case against Mr Banks. 9

19 The evidence was adduced by Mr McCready before Judge J P Gittos in October 2013. Judge Gittos concluded that sufficient evidence had been presented to justify Mr Banks' committal and that the evidence was such that a reasonable tribunal could convict Mr Banks on it. He committed Mr Banks for trial. 10

20 Following committal, the Solicitor-General took over the conduct of the prosecution. He did so at Mr McCready's request, and with Mr Banks' consent. The then Crown Solicitor in Auckland knew Mr Banks personally. Another partner in the Auckland legal firm holding the Crown warrant was leading an extradition case against Mr Dotcom, who was a key Crown witness in the case against Mr Banks. As a result, and also because Mr Banks was then a Minister of the Crown, Mr Paul Dacre QC was appointed to prosecute the case. He was independent of any of the parties and of prospective Crown witnesses.

21 Mr Banks applied for judicial review of the committal decision. This application was heard by Heath J. He dismissed it on 3 December 2013, 11 and the proceedings were transferred to this Court for hearing. 12

22 Mr Banks' application for a discharge under s 347 of the Crimes Act was heard by me on 4 April 2014. I dismissed it. 13

23 The matter proceeded to trial on 19–29 May 2014, again before me, sitting as a Judge alone.

24 Mr Banks faced a single charge alleging that he had breached s 134(1) of the Local Electoral Act. The indictment read as follows:

The Solicitor-General charges that John Archibald Banks on or about the 9th day of December 2010 at Auckland, being a candidate, transmitted a return

of electoral expenses knowing it to be false in one or more material particulars.

Particulars: The return of electoral expenses and donations for the 2010 Auckland mayoral election signed by the said John Archibald Banks listed as “anonymous” the following donations and in respect of which he knew the identity of the donor:

• a) Donation in the sum of $15,000 made by Skycity Management Ltd and received on or about 24 May 2010;

• b) Donation in the sum of $25,000 made by Megastuff Ltd on behalf of Kim Dotcom and received on or about 14 June 2010;

• c) Second donation in the sum of $25,000 made by Megastuff Limited on behalf of Kim Dotcom and received on or about 14 June 2010.

25 I delivered my verdict on 5 June 2014. 14 I was not satisfied that the particular relating to the Sky City donation was proved. I did, however, find that the particulars relating to the two Megastuff donations were proved. Critical to this finding was my acceptance of much of the evidence of Mr and Mrs Dotcom and Mr Tempero. The thrust of their evidence was:

I accepted evidence given by Mrs Banks and another defence witness, Mr Scott Campbell (who was Mr Banks' “handler”), that the lunch was held on 5 June 2010, and not 9 June 2010 as asserted by Mr Dotcom. I rejected evidence given by Mrs Banks that the lunch was attended by two American businessmen and that there was no discussion at the lunch about electoral donations.

• (a) that during a lunch at the Dotcom residence attended by Mr and Mrs Banks in June 2010, there was a discussion about the mayoral campaign;

• (b) that Mr Dotcom agreed to donate $50,000 to the campaign; and

• (c) that Mr Banks asked that the $50,000 donation be split into two $25,000 cheques, so that they could be treated for disclosure...