R v Banks

• Jurisdiction: New Zealand
• Judge: Wylie J
• Judgment Date: 07 April 2014
• Neutral Citation: [2014] NZHC 696
• Docket Number: CRI 2012-085-009093
• Court: High Court
• Date: 07 April 2014

The Queen

and

John Archibald Banks

[2014] NZHC 696

CRI 2012-085-009093

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

Application under s347 Crimes Act 1961 (Power to discharge accused) seeking a discharge — defendant faced one count under s134 Local Electoral Act 2001 (LEA) (False return) (as it was in 2010) of transmitting a return of electoral expenses, knowing it to be false in a material particular — trial was to be before a judge alone — defendant argued that Crown could not establish a key element under s134 LEA, namely whether the defendant, as the candidate, knew that the return was false at the time of transmission — whether, taking the Crown's case at its highest, there was evidence available from which a properly directed fact finder could reasonably conclude that the defendant personally received and knew of the donations — whether there were facts available to support any inferences to be drawn.

Appearances:

P Dacre QC for the Crown

D Jones QC for the Defendant

[RESERVED] JUDGMENT OF Wylie J

Introduction

1 The defendant, the Honourable John Banks, faces one count of transmitting a return of electoral expenses, knowing it to be false in a material particular.

2 Mr Banks has filed an application pursuant to s 347 of the Crimes Act 1961. He seeks a discharge.

3 The application is opposed by the Crown.

The Charge

4 The indictment reads 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:

• i) Donation in the sum of $15000 made by Skycity Management Limited and received on or about 24 May 2010;

• ii) Donation in the sum of $25000 made by Megastuff Limited on behalf of Kim Dotcom and received on or about 14 June 2010;

• iii) Second donation in the sum of $25000made by Megastuff Limited on behalf of Kim Dotcom and received on or about 14 June 2010.

5 The charge is brought under's 134 of the Local Electoral Act 2001 (as it was in 2010). Relevantly, it provided as follows:

134 False return

• (1) Every candidate commits an offence who transmits a return of electoral expenses knowing that it is false in any material particular, and is liable on conviction on indictment to imprisonment for a term not exceeding 2 years or to a fine not exceeding $10,000.

• …

6 There are four key elements to an offence under's 134. They are:

• (a) Is the person whose conduct is under scrutiny a candidate?;

• (b) Has the candidate transmitted a return of electoral expenses?;

• (c) Was the return false in any material particular?; and

• (d) Did the candidate know that the return was false at the time of transmission?

7 Elements (a), (b) and (c) are not in dispute for the limited purpose of the present application. Rather, the application turns on element (d) – in particular, whether or not a properly directed fact finder could reasonably infer from the evidence that the Crown proposes to call that Mr Banks knew the return was false when it was transmitted.

Section 347

8 Section 347 provided as follows:

347 Power to discharge accused

• (1) Where any person is committed for trial, the Judge may, in his discretion,—

  • (a) Of his own motion or on the application of the prosecutor or the accused; and

  • (b) After giving both the prosecutor and the accused reasonable opportunity to be heard on the matter; and

  • (c) After perusal of the depositions and consideration of such other evidence and other matters as are submitted for his consideration by the prosecutor or the accused—

  • direct that no indictment shall be filed, or, if an indictment has been filed, direct that the accused shall not be arraigned thereon; and in either case direct that the accused be discharged.

• (2) Where an indictment is filed by the Attorney-General, or by any one with the consent of the Attorney-General, under subsection (3) of section 345 of this Act, the Judge may in his discretion, after perusal of the statements of the witnesses for the prosecution, or after hearing those witnesses, direct that the accused shall not be arraigned on the indictment, and direct that he be discharged.

• (3) The Judge may in his discretion, at any stage of any trial, whether before or after verdict, direct that the accused be discharged.

• (3A) Every direction under this section shall be given in open Court.

• (4) A discharge under this section shall be deemed to be an acquittal.

• …

9 This section was repealed as from 1 July 2013 by the Criminal Procedure Act 2011. It continues to apply to this case because the proceedings were commenced in December 2012 and they had not been finally determined as at 1 July 2013 1

10 The principles on which the discretion under's 347 should be exercised are well known. They were set out by the Court of Appeal in R v Flyger 2 The Court there noted as follows:

• [13] The power to discharge an accused, accorded by s 347(3) of the Crimes Act 1961, is not expressed to be subject to any statutory limitation. Yet it is not an unqualified power susceptible of arbitrary exercise. It must be taken to be a power exercisable in the interests of justice. The nature and circumstances of a case will inform the interests of justice. In a trial before a Judge and jury a Judge must respect the jury's responsibility to decide the facts. Accordingly a Judge should not normally make an order for discharge pursuant to s 347(3) where there is before the Court evidence which, if accepted, would as a matter of law be sufficient to prove the case. The Judge's function in these circumstances is not to attempt to predict the outcome but to examine the evidence in terms of adequacy of proof, if accepted.

• [14] In R v Myers 3 Wilson J expressed the opinion that pursuant to s 347(1) of the Crimes Act 1961 an accused could be discharged if:-

… the Judge is satisfied that it is unlikely that any jury, properly directed, would convict, or, a fortiori, that it would be wrong for a jury to convict …

• [15] To the extent that Wilson J's Minute may suggest a test involving judicial prediction of the verdict, we cannot agree. It is not a question of what a jury would be likely or unlikely to do but what a jury may properly do. The evidence in support of a charge may be barely adequate and so tenuous as to lead a Judge to the view that the jury could not properly convict and accordingly the interests of justice require an order for discharge. The evidence in a case may be adequate, if accepted, but witnesses may appear so manifestly discredited or unreliable that it would be unjust for a trial to continue. It may be that in such circumstances a jury would be unlikely to convict, but the rationale for an order for discharge is

not the likelihood of acquittal but the unsafeness of a conviction having regard to the evidence. Wilson J's Minute in Myers was issued only 13 months after the Crimes Act 1961 came into effect replacing, amongst other things, the Grand Jury Procedure, the operation of which Wilson J may have had in mind when issuing his Minute. Subsequent authority does not support a predictive test.

11 R v Flyger was discussed, and clarified, in a subsequent Court of Appeal decision – Parris v Attorney-General 4 In this case, the Court made it clear that the constitutional divide between the trial Judge (law), and the jury (fact), mandates that trial Judges should intervene in factual areas only when, as a matter of law, the evidence is clearly such that the jury could not reasonably convict, or any such conviction would not be supported by the evidence. Questions of credibility and weight must “in all but the most unusual or extreme circumstances”, be decided by the jury. The Court noted as follows:

• [10] The use by the Flyger Court of the word “normally” tends to suggest that there may be some circumstances in which a s 347 order may be made when the evidence is sufficient in law to prove the case. That cannot be so, unless the justification for the s 347 order is something other than insufficiency of evidence. We think this is what the Flyger Court must have meant. If the evidence is sufficient in law, if accepted, to prove the case, the Judge should leave the case to the jury and not withdraw it on evidentiary grounds…

• [11] There is another aspect of Flyger upon which it may be helpful for us to comment. In paragraph [15] the sentence commencing “The evidence in a case may be adequate …” must be read in the context of the sentences leading up to it. In those earlier sentences the Court was speaking of evidence which was “barely adequate and so tenuous”. After the sentences in question the Court focused on the injustice of a trial continuing in such evidentiary circumstances. In the light of this context there is not the apparent inconsistency which would arise if the sentence we are addressing is read in isolation. If an isolated approach is taken, it is difficult to reconcile the concept of “adequate” evidence with that evidence being “discredited” or “unreliable”, but clearly the Court's observation must be read in the light of what was said in the other parts of the paragraph.

• [12] A third matter, to which we draw attention, is that in a case of the present kind, where the s347 application and order came at the close of defence evidence, it is not particularly helpful to equate the s347 issue too closely with the “no case to answer” jurisprudence. Rather, in this situation...