R v Banks [2014] NZHC 696 (7 April 2014)

High Court of New Zealand

[Index] [Search] [Download] [Help]

---

R v Banks [2014] NZHC 696 (7 April 2014)

Last Updated: 10 April 2014

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2012-085-009093 [2014] NZHC 696

THE QUEEN

v

_{JOHN ARCHIBALD BANKS}

Hearing:	4 April 2014
Appearances:	P Dacre QC for the Crown D Jones QC for the Defendant
Judgment:	7 April 2014

_{[RESERVED] JUDGMENT OF WYLIE J}

This judgment was delivered by Justice Wylie on 7 April 2014 at 4.30 pm

Pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

_Date:

R v BANKS [2014] NZHC 696 [7 April 2014 ]

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}

9^th 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 $15,000 made by Skycity Management

Limited and received on or about 24 May 2010;

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

iii) 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.

[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 Myers³ 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

¹ _{Criminal Procedure Act 2011, s 397.}

² _{R v Flyger [2001] 2 NZLR 721 (CA).}

³ R v Myers [1962] NZLR 321 (SC).

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 there will almost always have been, as here, a case to answer. The question is rather whether the case has been answered in such a way that the jury could not now properly convict.

⁴ Parris v Attorney-General [2004] 1 NZLR 519 (CA).

[13] We suggest that it is helpful in such circumstances, and indeed in s 347 situations generally, to correlate the exercise upon which the Judge is engaged with the function of this Court when considering an appeal on evidentiary grounds. Section 385(1)(a) of the Crimes Act 1961 provides that if the verdict of a jury is unreasonable or is not supported by the evidence the appeal is to be allowed. Hence when faced with a s 347 application, whether on the depositions, at the close of the Crown case, or after defence evidence has been heard, the Judge can usefully be guided by the same concepts. There should be a s 347 discharge when, on the state of the evidence at the stage in question, it is clear either that a properly directed jury could not reasonably convict, or that any such conviction would not be supported by the evidence. In most cases these two propositions are likely to amount to much the same thing.

[14] It is vital, however, to appreciate the proper compass of the word “reasonably” in this context. The test must be administered pre-trial or during trial on the basis that in all but the most unusual or extreme circumstances questions of credibility and weight must be determined by the jury. The issue is not what the Judge may or may not consider to be a reasonable outcome. Rather, and crucially, it is whether as a matter of law a properly directed jury could reasonably convict. Unless the case is clear-cut in favour of the accused, it should be left for the jury to decide. If there is a conviction this Court on appeal has the reserve power to intervene on evidentiary grounds. The constitutional divide between trial Judge (law) and jury (fact) mandates that trial Judges intervene in the factual area 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. In making these remarks we have largely accepted Mr Powell’s submissions which properly emphasised the matters we have mentioned.

[12] The importance of an accused person’s right to seek a discharge under s 347

was recognised by Baragwanath J in R v Lua,⁵ where it was noted as follows:

[3] As stated by Lord Lane CJ in R v Galbraith⁶ and adopted in Flyger, difficulty can arise “where there is some evidence but it is of a tenuous character, for example because of inherent weakness or vagueness or because it is inconsistent with other evidence.” Where the strength or weakness of the prosecution evidence depends rather on the view taken on whether a witness is reliable, the judge should allow the matter to be tried by the jury. But where the judge comes to the conclusion that the prosecution evidence, taken at its highest, is such that a jury could not properly convict upon it, it is his duty to stop the case.

[4] The jurisdiction is not premised on any lack of confidence in the jury system. The research performed by Dr Young and his colleagues for the Law Commission, which confirms the capacity of juries, given proper assistance, to deal with complex and difficult issues, has received international acclaim. Aberrations of the kind seen in R v Sally Clark⁷ and

⁵ _{R v Lua HC Auckland CRI-2006-092-4336, 24 April 2007.}

⁶ _{R v Galbraith [1981] 1 WLR 1039 at 1042.}

⁷ R v Sally Clark [2003] EWCA Crim 1020.

discussed in Meadow v General Medical Council,⁸ where a mother was wrongly convicted of the murder of her children, result rather, as in that case, from others’ failing to put the true facts before the jury in proper context. The jurisdiction is rather one of added constitutional protection: that no-one should be exposed to risk of verdict when the evidence is so slender that a conviction would be unsafe. The accused is entitled to a decision not only from a jury but, in advance of that, from the judge.

[13] For the purposes of a s 347 application, the available evidence must be given the construction most favourable to the Crown.⁹ Where the Crown’s evidence is such that its strength or weakness depends on the fact finder’s view of a witness’ credibility or reliability, or on other matters within the province of the fact finder, a Judge, on a s 347 application, must take the Crown’s case at its highest.¹⁰ If there is evidence from which a properly directed fact finder could reasonably infer guilt, on a s 347 application, a Judge should not intervene.¹¹ Similarly where the Crown case is dependent on an inference, providing there are facts capable of supporting that inference, the Judge should not decide whether the relevant inference should be drawn.¹²

[14] In this case, Mr Banks applied to have any trial heard by a Judge sitting alone. The Crown did not oppose that application and Mr Banks’ application was granted by Brewer J on 11 December 2013. The principles I have set out apply equally to a Judge alone trial where the Judge will be the fact finder.

[15] I am the Judge assigned to deal with these proceedings and if the matter proceeds to trial, I will be the fact finder.

Submissions

[16] Mr Jones QC, for Mr Banks, submitted that there is insufficient evidence to establish the charge in that:

_{(a) A key element of the charge is Mr Banks’ knowledge;}

⁸ _{Meadow v General Medical Council [2007] 2 WLR 286 (CA).}

⁹ _{R v Bromby HC Dunedin CRI-2005-412-5334, 10 August 2006 at [11].}

¹⁰ _{Parris v Attorney-General, above n 2, at [8].}

¹¹ _{R v Robinson HC Wellington CRI-2005-085-3489, 9 May 2006 at [12].}

¹² R v Flyger, above n 1, at [18].

(b) The Crown has not provided evidence from which a properly directed fact finder could reasonably infer that Mr Banks had knowledge of any falsity in the return at the time of signing the return;

(c) There is direct evidence available establishing that Mr Banks did not have knowledge of the content of the donations part of the return at the time of signing, and he could not have had knowledge of any falsity.

[17] Further, Mr Jones argued that I am entitled to take into account material other than that available at the committal stage, and that, in this case, significant additional material is now available to the Court, including a statement of evidence from a Ms Michelle Boag, an affidavit from a Mr Lance Hutchison dated 18 October 2013, a statement Mr Banks gave to the police on 15 June 2012, and various documentary exhibits.

[18] Mr Jones submitted that under s 134, actual knowledge, as opposed to wilful blindness (or deemed knowledge), is required. He argued that at trial, the Crown can only ask me as fact finder to infer knowledge from the various surrounding circumstances. He said that, in this case, no inference of actual knowledge is properly available on the evidence. He reminded me that any fact finder may only draw an inference which is:

(a) based on proved facts; and

(b) follows the evidence logically.

He emphasised that any inference must not be mere speculation or guess work.

[19] Mr Dacre QC, for the Crown, noted that both the District Court, and this Court, have already addressed the issue of whether there is sufficient evidence that Mr Banks knew the return was false. He noted that Mr Banks raised the issue before the committal Judge, who rejected his argument, finding that there was sufficient

evidence to commit him for trial.¹³ He observed that on review of that decision, Heath J found that there was no basis to interfere with the District Court Judge’s decision.¹⁴ He argued that those decisions are unassailable.

[20] Mr Dacre nevertheless accepted that it is appropriate for me to look at the additional materials which have been filed. This includes Mr Hutchison’s affidavit of 18 October 2013. He submitted, however, that it is wrong to argue that Mr Hutchison’s evidence is determinative, and he put it to me that there is, at this stage, no proper basis on which I can treat Mr Hutchison’s evidence as irrefutable. He argued that Mr Hutchison’s affidavit evidence is simply part of the pool of proposed evidence on which I, as fact finder, will ultimately be required to make findings if the matter goes to trial.

[21] In summarising the Crown case, Mr Dacre argued that at its highest, the proposed evidence establishes that Mr Banks personally received the donation from Skycity. Taking a similar approach, he also argued that the proposed evidence shows that Mr Banks expressly requested that the donations he received from Mr Kim Dotcom be presented in a form which would allow them to be listed as “anonymous”, and that Mr Banks knew of the donations. He said that the proposed evidence shows that the donations from Mr Dotcom and from Skycity were nevertheless listed in the return as being “anonymous” donations. Like Mr Jones, Mr Dacre relied on actual knowledge. He said that the Crown’s proposed evidence, if accepted, establishes that Mr Banks took an active role in seeking to obscure the source of the donations in issue. He accepted that Mr Banks may have delegated preparation of the return to Mr Hutchison, but put it to me that the evidence suggests that Mr Banks deliberately refrained from telling Mr Hutchison where the donations were coming from, because he wanted to keep them anonymous. He submitted that it is a reasonable inference on the proposed evidence that Mr Banks engineered the

_situation.

¹³ _{New Zealand Private Prosecutions Ltd v Banks CRN 12085501798, 16 October 2013 (DC).}

¹⁴ Banks v District Court at Auckland [2013] NZHC 3221 (HC).

Analysis

[22] I start by observing that there is considerably more material before me than there was before the District Court at the committal hearing, or this Court on review of that decision. The Crown has now filed its briefs of evidence and copies of the proposed exhibits. Mr Hutchison has filed an affidavit which postdates the District Court decision. I am entitled to take into account all of the additional material and I have done so. I have considered the application afresh by reference to all materials now before the Court.

[23] Secondly, I note that neither Mr Jones nor Mr Dacre relied on deemed knowledge (or wilful blindness) for the purpose of this application. Both were content to limit their respective arguments to actual knowledge. I have adopted their analyses for present purposes and I have not therefore considered whether deemed knowledge could be sufficient to establish guilt under s 134 of the Local Electoral Act 2001.

[24] I now turn to s 109 of the Act as it stood in 2010. It required every candidate at an election to transmit to the electoral officer a return setting out the candidate’s electoral expenses, the name and address of each person who made an electoral donation to the candidate, and the amount of each electoral donation. If an electoral donation of money, or of the equivalent of money, was made to the candidate anonymously, and the amount of that donation exceeded $1,000, then the amount of the donation, and the fact that it was received anonymously, also had to be set out. The electoral return detailing this information had to be filed within 55 days after the date on which the successful candidate at any election was declared to be elected.

[25] It was clear from s 109 that the obligation was on the candidate at the election to transmit the return giving the required information.

[26] The word “anonymous” was defined in s 5 of the Act. In relation to an electoral donation, it meant a donation that was made in such a way that the candidate concerned did not know who made the donation.

[27] Again, emphasis was on the candidate. It was the candidate’s knowledge

which was relevant – not that of other people within the candidate’s campaign team.

[28] Mr Dacre submitted that there is evidence available from which a properly directed fact finder can reasonably infer that Mr Banks knew of the Skycity and Dotcom donations, that they were, to Mr Banks’ knowledge, not anonymous, and that he engineered the situation to ensure that the identity of the donors was not disclosed in the return.

[29] I summarise the witness statements filed by the Crown, first in relation to the donation alleged to have been made by Skycity Management Limited (Skycity) the subject of particular (i) in the indictment, and then in relation to the donations alleged to have been made by Kim Dotcom which are the subject of particulars (ii) and (iii).

Skycity

[30] In his proposed witness statement, Mr Morrison, who was, at the time and may still be, the Managing Director and Chief Executive Officer of Skycity, says that in May 2010, he met with Mr Banks, together with another person, in his office at Skycity. He says that during that meeting, he handed Mr Banks a cheque for

$15,000.00, enclosed in a Skycity envelope, by way of a donation to his mayoral campaign.

[31] A Ms Anna McKinnon, who was Mr Morrison’s executive assistant at the time, says in her proposed witness statement that she organised the meeting between Mr Morrison and Mr Banks at Skycity’s offices. There is also evidence about the drawing of the cheque, and the fact that the first cheque had to be cancelled and that a new cheque had to be written, because the first cheque was in Mr Banks’ personal name, whereas the second cheque was not made out to “Team Banksie 2010”.

[32] Mr Banks, in his police interview, says that he has no recollection of the meeting, or of receiving any cheque from Mr Morrison.

[33] Mr Hutchison, in a proposed witness statement given on 23 May 2012, says that he believes he received the Skycity cheque in the mail. In his proposed witness statement dated 28 June 2012, he says that if it did not come in the mail, that it would have come from “one of the team”. He suggests the name of a person who may have given him the cheque. It is not Mr Banks. Mr Hutchison then says that he recalls that he rang a person who he knew worked in the legal department at Skycity, and asked that person whether Skycity wanted the donation to be anonymous, or have its name on the donation’s ledger. He said that the advice he was given was that Skycity wanted the donation to remain anonymous. In his second witness statement dated 28 June 2012, he says the person he rang could have been a Mr Peter Treacy.

[34] Mr Treacy is general counsel for GM Government and Industry Affairs for Skycity. Any conversation with Mr Hutchison is not referred to in Mr Treacy’s witness statement. Rather, he says that he is sure that Skycity did not stipulate to Mr Banks that the donation he received was to remain anonymous.

[35] In my judgment, there is evidence available from which a properly directed fact finder could reasonably conclude that Mr Banks personally received and knew of the donation.

Kim Dotcom

[36] Mr Dotcom, in his witness statement, says that on 9 June 2010, Mr Banks and his wife came to his Coatesville mansion for lunch. Mr Dotcom says he offered to donate $50,000 to Mr Banks’ mayoral campaign, and that the offer was promptly accepted. Mr Dotcom says that in Mr Banks’ presence, he instructed his chief security officer, a Mr Wayne Tempero, to ask his chief financial officer, a Mr Grant McKavanagh, to prepare a cheque. Mr Dotcom says that Mr Banks intervened, and asked that the cheque should be split into two cheques, each of $25,000, so that he would not have to declare where they came from. Mr Dotcom says he was a little offended by this explanation, as he felt that it implied that Mr Banks did not want to be seen to be associated with him. Mr Dotcom says that he told Mr Banks that he did not have a problem with it being known that he had made a donation to him. He

says that Mr Banks responded that he wanted to help Mr Dotcom, and that he could help him more effectively if no one knew about the donation.

[37] Mr Dotcom’s version of events is supported in proposed witness statements

given by his wife, Mona Dotcom, and by Mr Tempero.

[38] Mr Dotcom says in his witness statement that two cheques were prepared by Mr McKavanagh, that they were made out to “Team Banksie” and that he signed them. Mr Dotcom cannot remember whether the cheques were signed during or after his meeting with Mr Banks.

[39] Mr McKavanagh says in his witness statement that he took the two cheques with him, because he was going to the South Island on holiday. He says that he posted them from Queenstown. He cannot remember who he posted them to.

[40] Mr Tempero says that, at around this time, he had a conversation with Mr Banks, and that he would have asked Mr Banks whether the cheques had cleared or not. He said that Mr Banks confirmed that the cheques had been cleared, and that he, in turn, told Mr McKavanagh of this. Mr Dotcom, in his witness statement, says that he had a discussion with Mr Banks a few days later. He says that during the course of the conversation, he asked Mr Banks whether or not he had received his donation, and that Mr Banks acknowledged that he had, and thanked Mr Dotcom. Mona Dotcom refers to this conversation in her witness statement as well.

[41] Mr Banks, in his interview, says that he asked Mr Dotcom for $25,000. He could not recollect whether Mr Dotcom said “Yes, I’ll support you”, or whether he said “No”.

[42] Again, in my judgment, there is evidence on which a properly directed fact finder could reasonably find that Mr Banks knew of the donations from Mr Dotcom.

If Mr Banks knew of the donations, was that knowledge passed on?

[43] If I, as fact finder, ultimately conclude that Mr Banks knew of the donations from Skycity and/or from Mr Dotcom, the question will become whether or not

Mr Banks passed on that knowledge to his campaign team, and in particular to

Mr Hutchison, who was the treasurer for the campaign, and who was responsible for the preparation of the electoral return.

_n

50. Um, $25,000 you said to him, um, and you’ve told me you left the house after a short period of time. What have you told your team, Lance, Aaron, Michelle about this, the possible donation?

B Nothing, nothing.

L Why haven’t you mentioned it to them Mr BANKS?

2. Well I wanted him to make it, ah, and I, I told him he could make it anonymous. I gave him slips, I think on that day, I think on that day I gave TEMPERO, ah, a number of slips.

L And the reason for giving him the slips?

2. Oh, I wanted the money and I would’ve, as usual rang up and thanked him very much for his support of the campaign, support of the campaign.

L You said you would’ve phoned up or?

B No I would’ve rung up. L Okay.

2. Oh yeah, because if he hadn’t of supported the campaign he might say well, we said we would we haven’t, we better and if he had of supported the campaign that would’ve been good.

(emphasis added)

(c) Also in relation to Mr Dotcom, a witness statement from a Mr Greg Towers. Mr Towers is Mr Dotcom’s solicitor. In early 2012, Mr Dotcom was arrested and remanded in custody. Mr Dotcom apparently suffers from back problems, and Mr Towers says that he was asked by Mr Dotcom to contact Mr Banks, who was, by that time, a Member of Parliament, to seek his assistance in obtaining an additional mattress for Mr Dotcom. Mr Towers, in his witness statement, says that on 8 February 2012, Mr Banks called him back in response to a message that he had left for him. He says Mr Banks told him, that, as much as he wanted to publically support Mr Dotcom, it might backfire if the election support became known.

[45] In my judgment, and taking the Crown evidence at its highest, there is evidence available from which a properly directly fact finder could reasonably infer that:

(a) Mr Banks wanted the donations to be anonymous;

(b) Mr Banks refrained from telling Mr Hutchison who the donations had come from;

(c) Mr Banks knew that the donations would be listed as anonymous in the return when it was ultimately prepared by Mr Hutchison, because he had kept Mr Hutchison “in the dark”.

Mr Hutchison’s Proposed Evidence

[46] Mr Banks’ application rests principally on the evidence of Mr Hutchison. Mr Hutchison is a Justice of the Peace, and a bank manager. As I have noted, he acted as the treasurer for Mr Banks’ electoral campaign, on an unpaid basis. He has

given two witness statements, one dated 23 May 2012, and the other dated 28 June

2012. He was called as a witness by Mr Banks in the committal proceedings. He was briefly cross-examined by a Mr McCready, who was then seeking to obtain Mr Banks’ committal through a company known as New Zealand Private Prosecution Services Limited. In the course of cross-examination, Mr Hutchison said that Mr Banks may have glanced at the five pages listing the donations, but that he did not read them.

[47] Mr Hutchison was in Court when the Judge dealing with the committal, Judge JP Gittos, gave his decision in relation to the matter on 16 October 2013. Mr Hutchison was concerned that the Judge may have misunderstood the answer he gave in cross-examination to Mr McCready, and as a result, he swore an affidavit dated 18 October 2013, clarifying the position as he sees it.

[48] In brief, it is Mr Hutchison’s proposed evidence from his witness statements and affidavit that he assisted Mr Banks in various electoral campaigns, and that his role in relation to the 2010 campaign was to act as the treasurer. He was responsible for budgeting, expenses, the spending cap, cashflow, costs and the like. His first witness statement records that the campaign had a savings and cheque account, both in the name of “Team Banksie”. He says that various people were approached for donations, and the campaign also took donations via the website, and by direct mail. He said that Mr Banks, to his knowledge, never saw the bank statements, and indeed, that he asked not to know about them, and that he had no access to the accounts. He says that Mr Banks did not want to know where any money came from. He says that if a person donated money, and wanted to stay anonymous, then that could occur. He said that he and others involved with the campaign never told Mr Banks where money came from, and that Mr Banks was simply not interested. He said Mr Banks’ main concern was having the funds in the bank to pay for approved expenses.

[49] Mr Hutchison records that he prepared the return, and he explains the circumstances in which it was signed by Mr Banks. He says that he met Mr Banks on 9 December 2010, in a coffee bar in Elliot Street in Central Auckland. He says that he was sitting at the opposite side of a table from Mr Banks, and that they went through the expenses part of the return, both effectively looking at it from one side.

He says that once they had gone through the expenses part of the return, he flicked through the balance of the return which comprised the five pages listing the electoral donations. He describes how he held the return and flicked over the five pages, and says that it was physically impossible for Mr Banks to have seen who was noted as a donor on any of the pages, except on the last page which Mr Banks could, and did look at before he signed the return. He says that Mr Banks asked him whether he could rely on him to make sure that the return was true and correct, and that he replied in the affirmative. He says that Mr Banks’ other concern was to make sure that the return would be filed within the deadline set out in the legislation. He says that Mr Banks said that he did not want to see a bank statement, and that he was concerned more with the expenses incurred during the course of the campaign, and making sure that they were clear in the return.

[50] It is Mr Hutchison’s proposed evidence that the decision as to whether or not a donation was anonymous or not rested with him and Ms Boag.

[51] Mr Jones invited me to treat Mr Hutchison as the critical witness. He emphasised that, on his proposed evidence, Mr Hutchison was the author of the return, and that he filled it out, in consultation with Ms Boag. He said it is clear from the proposed evidence that Mr Hutchison took the return to Mr Banks for signature, and he put it to me that Mr Hutchison’s evidence in this regard cannot responsibly be questioned by the Crown. He argued that what has to be shown, if the Crown is to succeed in this prosecution, is that Mr Banks had knowledge of the falsity in the return at the time it was transmitted (in reality in this case, at the time it was signed). He argued that how the document was compiled is critical, and that there is no evidence on which I, as fact finder, will be able to find that Mr Banks was aware of the content of the document. He argued that Mr Hutchison’s evidence is explicit, and that it leaves no room for any inference to be drawn adverse to Mr Banks on the issue.

[52] I do not accept Mr Jones’ submission that Mr Hutchison’s evidence is determinative of the matter. I agree with Mr Dacre that Mr Hutchison is but one witness. Mr Hutchison’s evidence will simply be part of the pool of evidence which will be available to me as fact finder if the matter proceeds to trial.

[53] Notwithstanding that he was called by Mr Banks at the committal hearing, the Crown is now proposing to call Mr Hutchison. It will not be cross-examining him. If it needs to do so, it can, however, call evidence which challenges his veracity provided it is of direct relevance to the case¹⁵, and there is no rule which prevents the Crown from inviting me as fact finder not to accept the evidence given by a witness it has called, either in whole or in part.¹⁶

Conclusion

[54] At its highest, the evidence the Crown proposes to adduce at trial, if it is given in accordance with the written briefs, and if it is accepted, is such that, in my judgment, a properly directed fact finder could reasonably conclude that Mr Banks knew that the returns were false. There is evidence capable of supporting the inference the Crown will be asking me to draw. There may well be other inferences available and, of course, the onus of proof to establish Mr Banks’ guilt beyond reasonable doubt will be on the Crown.

[55] The ultimate resolution of this case must depend on the evidence, how it comes out at trial, and on the Court’s view of the reliability and credibility of the various witnesses. Whether or not the inference the Crown will be asking me to draw should be drawn, can only be determined following a full trial, when all of the evidence is available and it has been fully tested and explored.

_{[56] The application is dismissed.}

_{Wylie J}

¹⁵ _{Hannigan v R [2013] NZSC 41, [2013] 2 NZLR 612 (SC) at [135].}

¹⁶ Mann v R [2010] NZCA 68 (CA) at [29].