John Banks, faced with his impending trial date, has now applied to have the charges dismissed, under s 347 of the Crimes Act. It’s his final throw of the dice before trial, and I really can’t see him getting anywhere with it.
His major problem is that prosecution case against him has now been heard once in the District Court and reviewed once by the High Court (copy of judgment attached here), with both Courts finding sufficient evidence for Mr Banks to be committed for trial. Unless Mr Banks has something new evidence-wise to offer the Court, his latest application seems doomed to failure.
At the initial preliminary hearing before Judge Gittos in the District Court, the Court heard from the prosecution witnesses (Kim Dotcom, Dotcom’s head of security, Dotcom’s solicitor, and the CEO of Sky City) and a sole defence witness (the treasurer for Mr Banks’ mayoral campaign) and, based on that evidence, committed Mr Banks for trial. The Judge quoted the relevant test to be met, as expressed in Auckland City Council v Jenkins  2 NZLR 363:
A tribunal deciding whether or not there is a case to answer must decide whether a finding of guilt could be made by a reasonable jury or a reasonable judicial officer sitting alone on the evidence thus far presented.
On the evidence before the District Court, Judge Gittos concluded that it could be inferred that Mr Banks deliberately refrained from checking the donations part of his electoral return so that he could distance himself from claims that he had knowledge of the failure to declare the donations from Sky City and Kim Dotcom. To quote Justice Heath from para 42 of the High Court judgment:
“At trial, a fact-finder would necessarily consider whether Mr Banks deliberately refrained from reading the donation part of the Return in order to deny knowledge of the absence of disclosure. On that type of analysis, “knowledge” may be proved by “wilful blindness” on the part of the alleged offender.”
At the Judicial Review of the District Court’s decision, Justice Heath reevaluated the evidence that had been before the District Court. He came to the conclusion that although Judge Gittos had made some factual errors, these were not sufficient for the High Court to interfere with the overall decision that sufficient evidence existed for Banks to be committed to trial.
So here lies Mr Banks’ problem. The Court, when deciding whether to grant Mr Banks’ application to have the charge dismissed, will be following the same process as that followed by Judge Gittos and Justice Heath. The evidence will be evaluated, and a conclusion will be reached as to whether sufficient evidence exists for a prima facie case to be made out. Although Justice Heath was hearing an application for Judicial Review, rather than a s.347 application, he has essentially followed the same approach as would be followed at a s.347 application.
It would be incredible if the Court were to adopt a view of the evidence that is so materially different to the view already adopted by both the District and High Courts.
Mr Banks did not give evidence at the initial District Court hearing. However, even if he were to give evidence as part of a s. 347 application, it would not be the Court’s role at that stage to decide issues of weight or credibility. The Court would surely have to rule that a fact-finder could still reach the conclusion that Mr Banks had been wilfully blind.
But if Mr Banks wants to spend his money on a further hearing before trial, I guess that’s his prerogative…