Legal Beagle by Graeme Edgeler

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Legal Beagle: John Banks: what next?

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  • Steve Curtis,

    Interesting how a similar situation has played out Melbourne.
    An MP is accused of a crime which could means he could get kicked out of parliament. The government only has a one seat majority so depend on his vote.

    At first the prosecution rolled up all the offences into one charge ( he was using his MPs fuel card and vehicle for long distance trips soley for his hardware shop) and then with the MP pleading guilty would apply for diversion so no conviction would be entered.
    Unfortunately the judge hearing the case wasnt have a bar of the stitch up and refused to consider diversion.
    So back to the MP pleading not guilty to all the charges, but then the Public prosecutor saying there is no reasonable chance of conviction and then not offering any evidence, so MP walks away scott free.
    Perhaps some of the files from the police were lost and not passed on to the prosecutors ?

    Auckland • Since Nov 2006 • 314 posts Report Reply

  • Paul Williams,

    Regardless of whether or not there's a conviction, I quite agree your comments about the Police. You'd hope they're reviewing their processes in light of this situation (also, credit to McCready).

    Sydney • Since Nov 2006 • 2273 posts Report Reply

  • Matthew Poole,

    It's quite disturbing how lightly the Police appear to take electoral law offences. There's no blame to be placed around the lack of action on the incorrect filing, what with the delays in an investigation even starting, but for it to take a private citizen with limited resources to kick off a prosecution on the bigger offence is quite damning.

    Auckland • Since Mar 2007 • 4097 posts Report Reply

  • Graeme Edgeler, in reply to Paul Williams,

    You’d hope they’re reviewing their processes in light of this situation (also, credit to McCready).

    To be honest, I'm actually pretty happy with the police investigation here. They did exactly what I want them to do in all the other cases. They conducted interviews or took statements from those involved, including with Banks. They basically formed the view that they could have charged Banks with the summary offence, but didn't think they had the evidence for the more serious offence. From start to finish, the investigation took about three months. It didn't start until late, because no-one who knew about the donations knew they hadn't been declared in order to make a complaint to police. If we get this sort of prompt investigation of all electoral law allegations, we can be rather pleased.

    Wellington, New Zealand • Since Nov 2006 • 3202 posts Report Reply

  • Matthew Poole, in reply to Graeme Edgeler,

    didn’t think they had the evidence for the more serious offence

    Which it turns out was completely the wrong conclusion. And since we're talking about something as fundamental as the integrity of our electoral system, one would hope that they'd be rather less conservative about, at the least, putting the evidence before a judge and seeking committal for trial. It's not like they're overwhelmed with these types of cases.

    Auckland • Since Mar 2007 • 4097 posts Report Reply

  • Graeme Edgeler, in reply to Matthew Poole,

    And since we’re talking about something as fundamental as the integrity of our electoral system, one would hope that they’d be rather less conservative about, at the least, putting the evidence before a judge and seeking committal for trial.

    In this case it's the integrity of our local electoral system .

    And the course taken in this instance was very much against the norm. There is now very rarely any chance to test the evidence before trial. Police file statements, and committal happens automatically, without any assessment of the evidence. Indeed, under changes that took effect earlier this year, committal doesn't happen at all.

    I wrote something a number of years ago that looked at the making of charging decisions following complaints against MPs and police, and others for whom a police investigation has particularly heightened concerns about interference etc.

    Banks has announced his retirement from politics because this is going to trial. Not because he thinks he's guilty or done anything wrong, but because it's going to trial. Politically, that a decision that is likely to happen most of the time if an MP is charged with a serious-ish imprisonable offence. I do not want police charging people, even MPs, simply so that the courts can sort it out.

    Wellington, New Zealand • Since Nov 2006 • 3202 posts Report Reply

  • Keir Leslie,

    Hang on. Banks says he's announced his retirement from politics because this is going to trial and he asserts he's done nothing wrong. But he's hardly about to say "Oh yes, I am a crook" is he? And isn't it very likely that the lesser time-limited charge would have been sustained? I don't think this is a terribly unjust outcome.

    (Obviously I wouldn't think it was terribly unjust. And I agree that in general charging people and leaving it all up to judges is a bad procedure.)

    Since Jul 2008 • 1452 posts Report Reply

  • Paul Williams, in reply to Graeme Edgeler,

    If we get this sort of prompt investigation of all electoral law allegations, we can be rather pleased.

    Fair enough, I hadn't followed it closely enough, however doesn't the outcome of the private prosecution indicate the determination of the Police investigation was incorrect even if they examined the matter fully.

    Sydney • Since Nov 2006 • 2273 posts Report Reply

  • Rich of Observationz,

    So if Banks is convicted by the 6th June or the election date is brought forward, there would be a by-election with presumably the new Act candidate standing.

    I'm assuming Allan Titford will be ineligible to stand due to incarceration, although I guess he could still be party leader.

    In his absence, it'll probably be Cactus Kate - I assume a daytrip to NZ is sufficient to reset her eligibility as a voter - one doesn't need to be resident here for tax or anything awkward like that.

    Back in Wellington • Since Nov 2006 • 5550 posts Report Reply

  • Graeme Edgeler, in reply to Keir Leslie,

    And isn’t it very likely that the lesser time-limited charge would have been sustained?

    Not particularly more likely than the more serious charge e faces. Banks' principal defence is that he did not know that Dotcom and SkyCity made the donations to him. This is an element of both the summary and the indictable charges that must be proved beyond reasonable doubt. The additional element that must be proved in the more serious charge is that (in addition to knowing of the donations), Banks also knew they were incorrectly recorded.

    Wellington, New Zealand • Since Nov 2006 • 3202 posts Report Reply

  • Graeme Edgeler, in reply to Rich of Observationz,

    So if Banks is convicted by the 6th June or the election date is brought forward, there would be a by-election with presumably the new Act candidate standing.

    If the election date is brought forward, that makes it less likely there would be a by-election in the event of a conviction.

    Wellington, New Zealand • Since Nov 2006 • 3202 posts Report Reply

  • Rich of Observationz, in reply to Graeme Edgeler,

    Indeed, my bad - I meant if it was not brought forward. For a by-election to be cancelled, I assume the PM has to make an announcement of the election date, or the last possible date needs to be less than six months away?

    Back in Wellington • Since Nov 2006 • 5550 posts Report Reply

  • Graeme Edgeler, in reply to Rich of Observationz,

    For a by-election to be cancelled, I assume the PM has to make an announcement of the election date, or the last possible date needs to be less than six months away?

    Yes. And then Parliament needs to agree by a vote with at least 75% support.

    Wellington, New Zealand • Since Nov 2006 • 3202 posts Report Reply

  • Rich of Observationz, in reply to Graeme Edgeler,

    Ah. So Labour could (and maybe should) tell them to bog off, and we'd get an Epsom by-election to stir things up.

    (I'm still thinking it'll be an acquittal or a hung jury, but it's probably improper to speculate like that).

    Back in Wellington • Since Nov 2006 • 5550 posts Report Reply

  • FletcherB, in reply to Graeme Edgeler,

    The additional element that must be proved in the more serious charge is that (in addition to knowing of the donations), Banks also knew they were incorrectly recorded.

    And unless anyone has evidence counter to Banks' argument that he didn't read the forms he was signing, simply asked "Is this correct?" of the person who actually filled them out... surely the above all falls down there?

    How come if us plebs sign, say, a mortgage or insurance agreement, without reading and understanding every single clause.... we get told well you're responsible because you signed it.... but when its some rich or (in)famous dude... he can't possibly be guilty because he didn't read what he's signing?

    The buck has to stop somewhere.... if you sign a fraudulent document then you are responsible.

    I beleive recent prosecution cases involving directors of failed finance companies have (at least partially) succeeded despite them saying "we signed the prospectus because the lawyers/accountants said it was OK" . No?

    West Auckland • Since Nov 2006 • 887 posts Report Reply

  • Sacha, in reply to FletcherB,

    Banks also knew they were incorrectly recorded

    If a court accepts evidence that Banks instructed Dotcom about making his donation anonymisable, then Banks may have checked the official declaration to make sure the donations were recorded as he had intended. That's about as charitable as I can do.

    Ak • Since May 2008 • 19685 posts Report Reply

  • Chris Waugh,

    Wellington • Since Jan 2007 • 2401 posts Report Reply

  • jon_knox,

    I was having a chat with an Italian pal recently about the Berlusconi situation, more specifically the inability to efficiently eject elected officials upon criminal conviction. Whilst it may seem quite clear in Berlusconi's case, providing a path to remove political opponents via criminal conviction could be all too convenient. Similarly suspending a citizen's right to vote whilst imprisoned, or putting in place a good character constraint on media ownership/editorship could be similarly manipulative.

    How to provide balance competing needs?

    Belgium • Since Nov 2006 • 464 posts Report Reply

  • Andre,

    Do you think that neither Don Brash nor John Banks knew anything about the move by Peter Huljich to deceive investors in the company run by the three of them? If it was anyone else do you think they would have had to test their case in front of a jury? The fact that today the Berlin-based NGO Transparency International has declared, once again, that New Zealand is the least corrupt nation in the world, ranked equally with Denmark, is a bit of a joke.

    New Zealand • Since May 2009 • 350 posts Report Reply

  • Rich of Observationz, in reply to Andre,

    Suggest a less corrupt nation?

    Back in Wellington • Since Nov 2006 • 5550 posts Report Reply

  • Matthew Poole, in reply to Andre,

    Transparency International has declared, once again, that New Zealand is the least corrupt nation in the world, ranked equally with Denmark, is a bit of a joke.

    Why is it "a bit of a joke"? It doesn't declare there's no corruption.

    Auckland • Since Mar 2007 • 4097 posts Report Reply

  • Rich of Observationz, in reply to jon_knox,

    In current NZ law, an MP convicted of a moderately serious offence must resign. They can, unless actually imprisoned, re-contest the subsequent by-election. This reflects the fact that the electorate were not aware of their offending and should reasonably have a chance to choose another candidate.

    If an MP is actually imprisoned, they are ineligible to vote and hence stand.

    Back in Wellington • Since Nov 2006 • 5550 posts Report Reply

  • Chris Waugh, in reply to Matthew Poole,

    Transparency International has declared, once again, that New Zealand is the least corrupt nation in the world, ranked equally with Denmark, is a bit of a joke.

    Why is it “a bit of a joke”? It doesn’t declare there’s no corruption.

    And it's a Corruption Perceptions Index. So not measuring corruption at all - or at least, only measuring it very indirectly.

    Wellington • Since Jan 2007 • 2401 posts Report Reply

  • mark taslov, in reply to Rich of Observationz,

    Suggest a less corrupt nation?

    I think I understand where Andre is coming from. Essentially all nations have a degree of corruption, the ideal absolute alternative being no corruption whatsoever. Pragmatically, even the tiniest amount of corruption, at high or low levels, could affect you or your circles personally.

    And perception is just that.

    Te Ika-a-Māui • Since Mar 2008 • 2281 posts Report Reply

  • jon_knox,

    I did some study of Behavioural Economics during the year. One of the very interesting topics was dishonesty. There were some pretty sneaky/clever experiments undertaken to gauge the levels of dishonesty around the world in an attempt to determine if there is a cultural element to dishonesty.

    Though there is some serious academic literature, the pop-sci version is snappily marketed here.

    The guts of the findings is that there is no significant difference in the levels of dishonesty across cultures, which I think confirms the comments from others regarding perception.

    Belgium • Since Nov 2006 • 464 posts Report Reply

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