John Banks

And the Banks saga rolls on…

It’s just been reported that John Banks has been successful in his appeal, with the Court of Appeal overturning his conviction and ordering a new trial.

The appeal hinged on the evidence of two US-based businessmen, David Schaeffer and Jeffery Karnes, who were at the lunch with Dotcom, Banks and their respective wives, when Dotcom claimed the donations were discussed. The Court has stated that:

“Although it was not fresh evidence, the Court was satisfied that if the evidence has been before Justice Wylie the outcome may have been different.”

The new trial will certainly be interesting, given the hit Dotcom’s credibility has taken over the Moment of Truth, and the forged email. However, the key piece of evidence for Justice Wylie wasn’t the lunchtime conversation. Instead, it was Mr Banks’ phone conversation on 8 February 2012 with Dotcom’s lawyer, Gregory Towers, in which Mr Towers called Banks to try and get Dotcom a better mattress in prison. Justice Wylie wrote at para 128 of his judgment:

“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.”

Will the new evidence lessen the impact of Gregory Towers’ evidence? Can Banks point to what other “election support” was provided by Dotcom? We shall see…

The saga rolls on…

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The slow decline of ACT continues

In a way, you’ve got to hand it to ACT. The party’s obituary has been written many a time, as Hide, Brash and Banks fumbled their way along. Everyone was certain that the humiliation of Banks was the end of the line. Nonetheless, defying the naysayers, David Seymour held the seat of Epsom. ACT survived for another Parliamentary term.

Except, of course, that Jamie Whyte, party leader and philosopher-warrior, didn’t make it into Parliament to join Seymour. Immediately following the election, Whyte was in limbo as leader, still in charge, but awaiting the ponderings of the Board as to his future. The limbo is now over – he has tendered his resignation, and the Board has accepted.

Which means that David Seymour is now the leader of ACT. Is this the point where the donors turn off the tap? Where the members shrug and walk away?

Back in the Brash and Banks days, there was the occasional murmur regarding pulling the pin on the ACT name and forming a new party, keeping the donors and members, and jettisoning the public faces of a sullied brand. It must be tempting for the party’s backers to reconsider that option, given the joke that ACT has now become. Nonetheless, the party still has a seat, an MP and an under-secretary position, with all of the funding that goes with that.

And National keeps providing the electricity for ACT’s life support machine. There’s no guarantee that a fresh new libertarian movement would receive a hand up from National. With no electoral seat accommodation, it’s highly unlikely that a new party to National’s right would be able to explode out of the gates to hit 5% by 2017.

Which means that ACT will continue to limp on, its death rattle continuing. Seymour and the Board will talk of rejuvenation and growth, but I can’t see it happening. The best that might happen is that Seymour holds the fort well enough to bring in a second MP next time round. The odds are long, but they’re odds ACT will take because, frankly, they’ve got no choice…

It isn’t easy being Whyte

Jamie Whyte has a problem. He’s the leader of a party that doesn’t have enough support to get more than one MP into Parliament, assuming ACT wins the Epsom electorate. And given that he’s not the one standing in Epsom, that means that unless something magical happens to ACT’s polling, he’ll be missing out. David Seymour will be ACT’s sole representative in Parliament.

ACT is polling just 0.5% in this site’s Poll of Polls. The highest any major poll has had them this year is 1.1% (the mid-March 3News Reid Research poll), and in the last dozen polls released, they’ve hit 1% just once. Of the last five poll results, they’ve ranged between 0.8% and not registering at all.

Richard Prebble (and, to a certain lesser extent, Rodney Hide) understood that ACT’s natural ideological constituency was relatively small. There really aren’t that many classical liberals floating around. Nonetheless, in the wake of the ever-extending meltdown that was the last gasp of Hide’s leadership, Don Brash’s attempt to make lightening strike twice, and John Banks’ eccentric conservatism, ACT finally went back to its roots. Jamie Whyte was supposed to be the calm voice of rationalism. Voters would be unable to ignore the power of the Professor’s arguments, and ACT would be great again. No more the shrill populism of perk busting! No more the awkward conservative Sensible Sentencing Trust juxtaposition! Nothing but cool, calm classical liberalism…

Unfortunately, such ideological purity still has only a tiny natural support base. Thus, no movement in the polls. So what do you do when nothing you say gets you any traction? Well, after having consulted Richard Prebble, there’s only one way forward – go populist. Expand upon Three Strikes, and go Back to the Future with a One Law For All crusade!

Now, Richard Prebble always understood that when one rabble-rouses, one shouldn’t over-think the rationale. One Law For All and Getting Tough On Crime don’t have the most convincing rationales behind them – either philosophically or statistically. They’re crude slogans, designed to attract support without thought.

That’s not the Whyte way. As a former professor, he doesn’t want to be seen as simply a common Prebble-esque rabble-rouser. He enjoys the role of political philosopher, and therefore needs a philosophical underpinning to his every stance.

One gets the feeling that his impassioned philosophical defence of One Law For All was made up on the fly, a work in progress. It was certainly easily demolished on blog sites such as Pundit, Maui Street and Public Address. And from there, the philosophy-on-the-hoof process has continued, with Whyte attempting to cite coup-plagued Fiji as a model of racial policy. Now he’s tried to cite Sweden as a an example of how to eradicate race from the law, only to be monumentally fisked by Professor Andrew Geddis.

Unfortunately, the populist policy Whyte is pushing already exists (to a greater or lesser degree) within a crowded conservative market place. Whyte is up against Winston Peters and Colin Craig, and Whyte is certainly not a patch on Winston when it comes to selling racism. He’s not even a patch on Colin Craig in those stakes, and that’s certainly saying something.

They say that all publicity is good publicity, and Jamie Whyte must certainly be hoping that’s the case. There’s really little else that seems likely to go his way.

John Banks – all over bar the appeal

John Banks appeared for sentence this morning at the Auckland High Court and received two months’ Community Detention and 100 hours Community Work. A copy of the judgment is attached here). I’d been waiting for the news that his application for a discharge without conviction had been declined, but, as it happened, no application ended up being advanced.

To my mind, Mr Banks got off lightly. I hadn’t been expecting a jail sentence, but I’d been hoping for one. Banks was found by the High Court to have taken deliberate steps to hide the source of donations. We have laws requiring the disclosure of certain donations because of the risk of corruption, and Banks’ actions were a slap to the face of transparency and New Zealand’s reputation as a relatively corruption-free country. I don’t care that Banks didn’t actually end up helping Dotcom (and in fact dropped him like a hot potato when he needed Banks’ help, leading to Dotcom’s crusade against Banks). His actions were still a direct attack on democratic transparency, in circumstances that he knew were illegal and which involved a high level of premeditation. The Court had previously found as a fact that Banks told Dotcom that he would not be able to help him in the future if his name was recorded in the electoral return.

The Judge adopted a starting point of six months’ imprisonment, with a discount of two months for mitigating factors, including prior good character and a record of public service. It was therefore open to the Judge to look at sentences of Home Detention and Community Detention, with His Honour deciding that Community Detention was the least restrictive sentence that could be imposed.

I’d have to disagree that Mr Banks’ record of public service should be considered as a mitigating factor. To my mind, it should almost be an aggravating factor – Banks has been around long enough to know what was right and wrong in terms of electoral finance laws.

Of course, Mr Banks still doesn’t accept that he’s done anything wrong. In fact, he’s announced that he’ll be appealing his conviction:

“Since the finding of guilt fresh, new, unimpeachable, water-tight evidence has emerged. That new evidence completely contradicts much of the evidence given in the court in front of the judge on which I was convicted,” Banks said.

“We’re looking forward to taking that … to the Court of Appeal and in the process of time, that will completely exonerate me of these charges.”

All I can say is that it will have to be some quite extraordinary evidence to overcome this from the original judgment:

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.

Nonetheless, the circus that is John Banks seems destined to put on a few more shows, with or without public demand for tickets.

Key and Hauiti – don’t ask, don’t tell

How much money did National’s soon-to-be-former List MP Claudette Hauiti misspend on parliamentary credit card? We don’t know. As a mere backbencher, her credit card information can’t be OIAd, meaning that they only way we’ll ever find out is if she waives privilege.

The two examples of misspending that have been made public have been Ms Hauiti’s Christmas holiday flights to Australia and the purchase of refreshments at a hui. The flights apparently cost about $200, and she can’t recall what the refreshments would have cost. She says she doesn’t know, despite the fact that she has apparently repaid all funds erroneously spent. Surely she simply needs to look at her own repayment records, and she’ll have the answer ready and waiting?

Many people have pondered how return flights to Australia over Christmas could possibly have been purchased for just $200. They would therefore like answers from Hauiti regarding what the flights actually cost. Again, Hauiti can’t remember, preferring to fudge around the issue rather than go fact-checking.

The simple fact is that Ms Hauiti has misused taxpayer funds, and the taxpayer is entitled to know the details. Hauiti has a moral obligation to waive privilege, or at the very least to confirm to taxpayers the total amount she repaid.

Does John Key know? Apparently not. He says he hasn’t asked her how much money is involved:

“That’s actually not a matter for me.That’s a matter for Parliamentary Services and her. She made it quite to me that she was standing down from Parliament and that was on the back of the advice she’d had from the party, which took a pretty dim view to her making a mistake.”

It’s the same tactic Mr Key used in relation to the John Banks electoral fraud prosecution. In that particular situation, Key refused to read Banks’ police file. If he didn’t read the file, he couldn’t possibly discover anything that would suggest Banks had lied to him.

In Ms Hauiti’s case, if Key doesn’t ask her any questions, she can’t give him any answers. And if Key doesn’t have any answers, there’s can bat away all of the media’s questions with a blithe, “I don’t know”. How elegant. And how morally wrong.

UPDATE (24/7/14 @ 1.45pm):

I’ve just noticed this NZ Herald article, in which Ms Hauiti admits using her charge card to buy petrol for her personal car. She also explains that she doesn’t know how she repaid, as the repayments were small amounts made repeatedly over the year.

My point remains unchanged. Is Ms Hauiti’s record keeping so poor that she cannot trace her repayments to Parliamentary Services? And if it is, why can’t she simply approach Parliamentary Services and ask for the total figure? I’m sure they’d be happy to oblige…

The article also clarifies that the $200 relating to flights to Australia was in fact a fee to change a flight, “not for tickets her mother-in-law had paid for to attend a family trip”. So, her mother-in-law buys the tickets, then Ms Hauiti charges the taxpayer when the flights need changing, on the basis that she’ll be meeting or had met “with Maori in Australia who were registered on the Maori roll“.

McCready jumps the shark

When the Solicitor-General took over the prosecution of John Banks, Graham McCready – retired accountant, convicted blackmailer and tax fraud, and successful prosecutor of Trevor Mallard – received a boost in credibility. Vindication was his.

Evidently, he rather enjoyed the role of public watchdog (and presumably the attention that went with it), as, Don Quixote-like, he immediately set off on an ill-prepared campaign to take down Len Brown and his wife for corruption. That prosecution attempt crashed and burned at the first hurdle, but the recent guilty verdict against John Banks (and of course the renewed publicity for Mr McCready that followed) appears to renewed McCready’s thirst to remain in the limelight.

Now, he’s pursuing private prosecutions against John Key, Detective Inspector Mark Benefield and John Banks, for conspiring to defeat the course of justice by not prosecuting Mr Banks. Unfortunately, Mr McCready appears to have lost track of why Justice Wylie found Mr Banks guilty – namely, a wealth of reliable witnesses who came up to brief for the Crown, and, in particular, the evidence of Kim Dotcom’s lawyer, Gregory Towers. In this new private prosecution, unless McCready has one hell of a damning OIA  paper trail, in which Mr Key, Mr Banks and Detective Inspector Benefield all email each other in some cartoon villain fashion, McCready will have nothing.

Nothing but a thirst for publicity.

Consider the shark well and truly jumped.

Snatching defeat from the jaws of victory – the Colin Craig saga continues

It’s just three days ago that I wrote:

No matter how high National are polling, they won’t be able to trust that those polls will hold up on 20 September. The numbers from 2011 dictate that National will strike a deal with the Conservatives. They won’t dare risk losing a chunk of the right-wing vote that may be decisive.

I’d thought it was a foregone conclusion that Colin Craig would be gifted a seat by National. The only questions were which seat, when the deal would be announced, and whether National would run a faux candidate or not.

However, Mr Craig’s appearance on the Nation on Saturday morning may well have changed National’s calculus.

All Mr Craig had to do was keep his mouth shut and try and act normal. No talk of fake moon landings or mind-altering chem-trails. Nothing that would make National nervous.

So what does Mr Craig do? He tells Patrick Gower that he hasn’t a hope of beating any of the National MPs in the three North Shore electorates he’s looking at standing in. Given his statement from last week, that he was expecting National to pull one of their candidates to give him a free run at a seat, it’s an implicit admission that he believes that even if National stands a Goldsmith-esque candidate against him, voters will still vote for the National candidate.

That raises a significant problem for National. Do they stand a candidate, give him or her orders to “do a Goldsmith”, and risk having Labour come through the middle? And if they pull a candidate completely, can they trust voters to swallow a Colin Craig-sized dead rat under duress? In Epsom and Ohariu, the voters have always had a choice. If they really didn’t like Rodney Hide, John Banks or Peter Dunne, there was still a National candidate they could plump for. This election will be the same for then. Don’t like Seymour or Dunne? Vote for the National candidate.

National has always asked the voters nicely (or at least given them a saucy little wink and a nudge), and the voters have obliged. What Colin Craig is suggesting though is that the only way he’ll make it into Parliament is through duress. National supporters don’t like me? Tough. There is no National candidate. It’s me or the opposition.

I’m not sure the voters in East Coast Bays, Upper Harbour or Rodney will necessarily play ball. After all, who would be happy being forced into voting for a candidate who admits that he’s otherwise unelectable?

If National don’t end up doing a deal with Mr Craig, National will undoubtedly be hoping that its vote of no confidence in Craig will drive voters away from the Conservatives, possibly back to National. The last thing National would want is the Conservatives getting a decent proportion of the centre-right vote and having it go to waste. Better to send an early signal to voters that a vote for the Conservatives is a wasted vote, and have them desert in droves. The risk, of course, is that those voters head to Winston Peters, helping him get over the line when he might otherwise have fallen just below the 5% threshold.

National’s strategists have some serious thinking to do.

A very odd opinion piece from Audrey Young

In the NZ Herald this morning, political editor Audrey Young had an opinion piece entitled “Conviction delay blindsided Act MP“. She notes that John Banks had a plan prepared if and when he was committed to trial, the plan being to step down as ACT leader and announce his retirement come the next election. She then writes:

He was committed for trial and he duly resigned. It was well thought through and executed.

Not so for the verdict.

The fact that he did not have a plan ready last Thursday suggests he quite reasonably had prepared for only two possibilities: acquittal, or being forced out of his seat that day with a conviction.

The decision by the judge to delay a ruling on any conviction until sentencing on August 1 took everybody by surprise and complicated Banks’ options.

Except that the Judge didn’t simply make a surprise decision to delay entering a conviction until sentencing on 1 August. Mr Banks’ lawyer specifically asked for that to happen, so that an application for a discharge without conviction could be made, based on Mr Banks’ instructions to his lawyer. I find it difficult to believe that a QC would have failed to advise Mr Banks that a discharge without conviction application almost always requires affidavit evidence regarding the consequences of a conviction and written legal submissions regarding the gravity of the offending.

And leading up to the delivery of Justice Wylie’s judgment, it’s not as if there wasn’t discussion on the interweb about whether Mr Banks would apply for a discharge without conviction if found guilty. Obviously though, such discussion completely bypassed the NZ Herald.

ACT living in cloud cuckoo land over Banks

The ACT Party is running lines of support for John Banks, following his being found guilty of electoral fraud, but the party really needs to sit down, take a deep breath and ruthlessly cut Mr Banks loose.

The attempts at support have at times bordered on the farcical. The day of the verdict, ACT’s president, on Radio NZ’s Checkpoint, couldn’t seem to work out whether Banks was guilty of anything, as he wavered between accepting the Court’s judgment and proclaiming Banks’ innocence.

ACT Party leader, Jamie Whyte, on 3News last night, appeared to be running the line that if Banks is successful in gaining a discharge without conviction, there’ll be nothing to see here, so he shouldn’t have to resign.

And in the NZ Herald this morning, ACT’s campaign strategist, Richard Prebble, argued that the party’s brand would be hurt more by Banks resigning “when he hasn’t been convicted” than by him staying till the bitter end.

The ACT Party leadership seem to be in a state of utter denial that what Mr Banks has done is in any way wrong. Here’s Mr Prebble on the subject:

“We’re acting as though this is some heinous crime. No it isn’t, it’s just a clerical error”.

No, Mr Prebble, it is not “just a clerical error”. A High Court judge, after sitting through several weeks of evidence, has very compellingly ruled that Mr Banks took deliberate steps to hide the source of donations, in contravention of local government electoral  law. Just because Len Brown did it with trusts (which were at the time legal, albeit unethical), does not make it okay for Banks to try and hide the source of donations that he knew were not anonymous.

The problem for ACT is that the longer the party tries to defend Mr Banks, the more out of touch they look. There’s a very strong appearance of “electoral laws are for other people” in their attempts to paint Banks as an honest, upstanding citizen. It brings to mind the brand destruction that Rodney Hide caused, as the perk-buster was exposed to have been raking in the perks himself. The public doesn’t like hypocrisy.

With just a few weeks before the substantive election campaign begins, ACT needs all the help it can get to engage the public with its policy. Unfortunately, when the only time your leadership features on the evening news is to a) respond to questions about why John Banks is still around, or b) feature in stories about “coat-tailing” rorts, policy doesn’t get a look-in.

The highest ACT has been in any poll this year is 1.1%. They currently sit at 0.7% in this site’s Poll of Polls. Neither figure gets them a second MP. Jamie Whyte needs to tell Banks to get off the cabbage boat and resign.

UPDATE (07/06/14 @ 12.15pm):

It’s just been reported on Stuff.co.nz that Jamie Whyte has “spoken to Banks and made it clear he thinks he should resign…”.

Says Whyte:

“John and I discussed this option earlier today and we have agreed that he will take the weekend to consider his alternatives.”

If the ACT leader has now given Banks the hard word, I would imagine we’ll see a Monday morning resignation. Banks will go gentle into that good night.

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”…