Banks v The Queen

JurisdictionNew Zealand
CourtHigh Court
JudgeWylie J
Judgment Date14 July 2016
Neutral Citation[2016] NZHC 1596
Docket NumberCRI-2016-404-000088

[2016] NZHC 1596




Under the Costs in Criminal Cases Act 1967

John Archibald Banks
The Queen

D P H Jones QC for the Applicant

J R Billington QC and M Wong for the Respondent

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.

Held: Under s5 CCCA (costs of successful defendant) the Court had a broad discretion — success was a neutral factor when the discretion whether or not to award costs was exercised. The fact that a prima facie case was established at a preliminary hearing, or that a Judge refused a discharge, was likely to support the conclusion that there was sufficient evidence at the commencement of the proceeding. Costs were not to be awarded only because the defendant had been acquitted. An applicant must be able to point to some relevant circumstances, either within the criteria, or otherwise, that justified an award.

The acquittal of itself did not entitle B to an award of costs. Rather, the Court was required to have regard to all relevant circumstances and in particular those listed in s5(2) CCCA. The Crown had satisfied s5(2)(a) CCCA (prosecution acted in good faith in bringing and continuing the proceeding) in relation to both donations. It had, when it took over the proceeding, sufficient evidence to support B's conviction in the absence of contrary evidence under s5(2)(b) CCCA. The charge had not been dismissed on a technical point under s(2)(e) CCCA. At trial, the Court had been satisfied beyond reasonable doubt that B had known that he received a donation from Sky City. B might have abstained from further enquiry when he signed the return, simply because he was careless, and not because he knew what the answer was going to be. The issue of whether or not the evidence was sufficient to prove beyond reasonable doubt that B had known of the falsity in the return could not be resolved without a trial. B had not established that he was not guilty. Rather, the Crown had failed to prove the Sky City particular against him beyond reasonable doubt. Section 5(2)(f) CCCA did not assist B. The Crown's conduct in relation to the Sky City donation was appropriate and unexceptional.

The significance of the American businessmen's evidence only became apparent once it was obtained and when Dotcom accepted that it was correct. B was seeking costs for the period commencing 3 December 2013 and ending 1 August 2014. The Crown became aware of the memorandum recording Dotcom's acceptance of the American businessmen's evidence in January 2015. Prior to 1 August 2014 there was nothing to put the Crown on notice of the potential difficulty in its case. There was no matter which came into the Crown's hands at the relevant time which suggested that B might not be guilty under s5(2)(c) CCCA. The Crown's investigation into the offence charged was conducted in a reasonable and proper manner, and by reference to the material which was before it at all relevant times pursuant to s5(2)(d) CCCA.

The evidence which the CA relied on to acquit B was raised before the CA and well outside that timeframe. Costs in the CA had been settled. It was not a situation where B had established that he was not guilty. Rather, the CA relying on the Americans' evidence and Dotcom's acceptance of the same, found that no reasonable fact finder could be satisfied beyond reasonable doubt that B was guilty. B could have called the American witnesses himself or made application under s368(2) Crimes Act (adjourning trial for witnesses). He had not done either. B had to bear some responsibility for what had occurred at trial and his behaviour in regard to the proceedings did not support an award of costs in his favour under s5(2)(g) CCCA.

B was not entitled to costs under s5 CCCA.



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.


The application is opposed by the Crown.


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.


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

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


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


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


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”).


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


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.


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.


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

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


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.


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.


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.


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.


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


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