Legal Beagle by Graeme Edgeler


John Banks: what next?

Justice Heath has released his decision on John Banks' application for judicial review (.pdf), which, as anticipated, did not take long.

There are a few points of note. The removal of the trial into the High Court has been confirmed, and it has been indicated that a trial may be able to be heard in the first quarter of next year. This may depend on whether Banks continues with a jury trial, or tries to have it set down before a judge-alone. Jury trials take longer, and must also take place in courtrooms that have space for a jury, so are more difficult to schedule at shortish notice.

In the judicial review itself, Justice Heath accepts that there were some errors in Judge Gittos's decision, but he simply didn't think they made a difference.  As well as concluding that the "truly exceptional circumstances" needed to succeed in a judicial review of a commital decision just weren't present, Justice Heath also looked through the evidence that the prosecution has presented. And he was of the view that there was enough evidence for there to be a trial. A jury might believe the evidence of Kim Dotcom and others about the circumstances of the donations, and agree that Banks knew he wasn't declaring a donation, and based on that might find Banks guilty of the offence of knowingly filing a false return. That's all you need.

John Banks' next step will probably be an application to have the charges dismissed under s 347 of the Crimes Act. This will be his last chance to have the prosecution ended before trial. However, it strikes me as unlikely to meet succeed. While Justice Heath wasn't considering a 347 application, his ruling pretty much addresses the arguments likely to come up in one if an application is made. And while a Judge hearing a 347 application can look at new evidence, it is difficult to see what further evidence might seriously be advanced on behalf of John Banks that would alter this conclusion that a jury might listen to the prosecution evidence and believe it

Of course, they might not. Or they might believe it, but also believe enough of the other evidence presented to have reasonable doubt. Those are matters for trial. A conviction is far from certain, but John Banks standing trial next year pretty much is.

And whatever the result of the trial, that it will occur without major complications will hopefully give Police enough of kick to consider advancing a few more of the investigations they still have outstanding from the 2011 general election.

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