John Banks has now had his application for a section 347 discharge heard by the High Court. I’ve already put my stake in the ground and predicted that the application won’t be successful. Justice Wylie has reserved his decision, so the waiting continues.
Nonetheless, I noted the reporting by stuff.co.nz of Banks’ application:
Banks’ lawyer, David Jones, QC, applied yesterday for a section 347 discharge for the MP, saying that on the evidence a court could not find against him.
Jones said evidence from a member of Banks’ campaign team was that the candidate did not prepare the document and the only time he saw it was the night he signed it.
The staff member said: “Once the expenses had been checked, he flicked through the donations part. He might have glanced at them but he didn’t read them.”
Jones said it had to be proved that Banks knew of the falsity of the document when he signed it. “There is no room for any inference adverse to Mr Banks to be drawn,” he said.
David Jones, QC, may argue that “there is no room for any inference adverse to Mr Banks to be drawn”, but that’s where Banks has problems. Both the District Court and High Court have already previously found that an inference could be drawn. And that’s all that’s needed for the case to go to trial. At this stage in proceedings, the Crown does not have to prove “that Banks knew of the falsity of the document when he signed it”. It just has to show that a prima facie case exists – i.e. that an inference could be drawn either that Banks knew the declaration was false (and could see that it was false when he glanced at it) or that he Banks was wilfully blind, in that he deliberately refrained from reading the donations section of the declaration in order to be able to deny knowledge.
Now, I’m not saying that Banks would be convicted at trial. In fact, I think it will be very difficult for the Crown to prove the charge beyond reasonable doubt. However, the threshold test for Banks’ s 347 application to be declined is not “beyond reasonable doubt”. It’s not even “balance of probabilities”. It’s merely, “Does a prima facie case exist?”
And as I’ve said before, I would be very surprised if the High Court rules that no prima facie case exists.