Justice Wylie ruled late yesterday afternoon that John Banks’ application to have his charge dismissed for lack of evidence was rejected. Which was unsurprising, as I’ve previously said here and here.
What was perhaps interesting was the different focus that Wylie J took in determining that a prima facie case existed, in comparison to Justice Heath previously. Justice Wylie’s judgment largely concerned itself with whether the evidence of Mr Banks’ campaign treasurer – that Mr Banks did not look at the donations section of the return – should be determinative. Justice Wylie essentially refused find that it was determinative, given the conflicting Crown evidence from Kim Dotcom, his wife and his (former) head of security.
In Justice Heath’s previous judgment, His Honour focussed more on the wilful blindness element:
“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.”
Which means that the High Court has now explicitly found that a prima facie exists against Mr Banks with regard to both possible prongs of the Crown prosecution – that he either did look at the return and new it to be false, or that he did not look, but was wilfully blind in order to deny knowledge of the absence of disclosure.
The trial will be interesting! And a key question will be whether Mr Banks gives evidence. To date, he has left it to his campaign treasurer to tell the Court that Banks did not look at the donations section of the return. If the Crown case doesn’t come up to brief, Banks might very well run with the same evidence that has already been presented to the Court – hoping that that the Crown witnesses aren’t enough for a “beyond reasonable doubt” verdict if Banks doesn’t give evidence. However, if the Crown witnesses give strong and credible evidence, Mr Banks will surely have no option but to enter the witness box and tell the Court exactly what he did or did not know, and what he did or did not see.
One final humiliation to close out his career in public office…