John Banks – a criminal, but not yet convicted

Justice Wylie has delivered his decision in the electoral fraud trial of John Banks, and has yesterday afternoon found Mr Banks guilty of knowingly filing a false electoral return. A copy of the judgment is here.

I for one am surprised. I’ve previously written that I thought it unlikely the Crown would be able to prove the charge beyond reasonable doubt. Nonetheless, the verdict is in, and it’s guilty beyond reasonable doubt. Have a read of the judgment – Justice Wylie’s conclusion is compelling.

The Judge concluded that Mr Banks either had actual knowledge that the return was false, as he knew that no member of his campaign team had been given the information about the Dotcom donations that was required if the return was to be accurate, or the Mr Banks deliberately chose not to check the return, as “he had no real doubt as to what the answer was going to be, and because he wanted to remain in ignorance”.

The most damning piece of evidence for the judge was Mr Banks’ phone conversation on 8 February 2012 with Dotcom’s lawyer, Gregory Towers. That was the phone call in which Mr Towers had called Mr Banks to try and get Dotcom a better mattress in prison. The judgment states (at para 128):

He [Mr Towers] said that Mr Banks told him that as much as he wished to publically [sic] support Mr Dotcom, it might backfire on Mr Dotcom if “it b/comes known about election support etc”. Mr Towers recorded this comment in a contemporaneous file note. He was confident that he had recorded the words that were spoken to him as best as he could. There was no evidence of Mr Dotcom having provided any other “election support” for Mr Banks. … I was satisfied that the discussion recorded in the file note could only have been a reference to the $50,000 donation by Mr Dotcom to Mr Banks’ 2010 mayoral campaign. In my view, Mr Towers’ evidence, and the file note, was compelling evidence, from a witness whose testimony was unimpeachable, that Mr Banks knew that the donations had, in fact, been made by Mr Dotcom.

So where to now for Mr Banks and the government?

The matter has been remanded for sentencing on 1 August 2014, and a conviction has not been entered, as Mr Banks will attempt to receive a discharge without conviction. That means that Mr Banks doesn’t have to vacate his seat, and by the time sentencing occurs the House will have risen and the issue will be moot.

Will Mr Banks be successful in his application for a discharge without conviction? Probably not, but what would I know? I was fairly certain he wouldn’t be found guilty in the first place! At least I’m in good company there though, with Professor Geddis

Mr Banks would have to show that the consequences of a conviction would outweigh the gravity of the offending. I don’t know what consequences Mr Banks intends to put before the Court on 1 August, but to my mind they’d have to be pretty damned serious to outweigh the gravity of attempting to undermine the transparency of our local government democracy. Given that a Pre-sentence Report has been directed that includes a Home Detention appendix, the Court is signalling that it’s relatively serious offending.

So Mr Banks stays on as MP for the good people of Epsom. If he had any sense of decency, he’d resign. He’s been found guilty of electoral fraud, proved to be dishonest beyond reasonable doubt.

If he resigns, John Key loses his majority to pass legislation. The government would still have a comfortable confidence and supply majority, but for any other legislation National would have to negotiate with the Maori Party. However, with National having already given up on its controversial attempt at restructuring the Resource Management Act, it’s unlikely that John Banks’ single vote would be required in the next two months.

For the opposition, it’s a win, regardless of whether Mr Banks stays or goes. If he goes, there’s the humiliation for John Key of having lost his majority. If he stays, there’s the greater pain of endless attacks on the government’s character, as its vote is cynically propped up by a proven criminal. And whichever way Banks goes, John Key looks a fool for having resolutely failed to read the Police report on him.

Setting aside the effect on National, Banks needs to go for the good of ACT. As things currently stand, the party’s polling is nowhere close to bringing in a second MP (should David Seymour win Epsom), meaning for the second election in a row ACT would fail to bring its leader into Parliament. The last thing ACT needs to contend with is an ongoing spotlight on their sole MP’s character and behaviour. Policy simply won’t get a look in.

Mr Banks has been referring to the lyrics, “Into every life, a little rain must fall”. One wonders whether his campaign song all those years ago was Evita’s “And the Money Kept Rolling In”…

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