Legal Beagle by Graeme Edgeler


Q&A: John Banks' judicial review

John Banks’ judicial review of the District Court decision committing him for trial on a charge of knowingly filing a false election return for the 2010 Auckland mayoral election is being heard in the Auckland High Court on Wednesday.

Why is John Banks judicially reviewing the committal decision?

Well, Banks would like the prosecution to be over (if it goes to trial, it will be in the run-up to the election), and getting it thrown out for insufficient evidence is one way of doing it.

But why not just appeal the decision?

In criminal cases, you can only appeal certain types of decisions. They’re individually listed in legislation, and this one isn’t there. He is judicially reviewing, because that is what you can do if an inferior court (a court that ranks lower than the High Court) makes a decision you don’t like. It’s not as easy as appealing, but it’s an option.

How does a judicial review differ from an appeal?

In quite a few ways (an appeal would be a criminal case, a judicial review is a civil case) but one is particularly important: in a judicial review, the “relief” (what the judge orders if you’re successful), is discretionary. Even if you prove there was an error, the High Court can simply decide not to give you what you ask for.

Is it common to judicially review a court?

Well, it’s not uncommon. Search on any database of New Zealand court decisions (there’s a free one here). If a District Court is named as a party, it’s probably a judicial review. Most of the time, however, you won’t judicially review a court decision, because there are a lot of things you can appeal instead, or you may just go to trial, and if necessary, run the arguments you wanted to at an appeal of the final decision.

What about judicial review of committal decisions?

These are rare. Justice Heath, the High Court Judge who is dealing with the judicial review on Wednesday, has released a minute to the parties (more on this later), in which he draws their attention to a 1995 decision of the Court of Appeal, where the Court of Appeal dealt with an appeal from a judicial review of a committal decision, and notes that there are very narrow grounds of which an appeal will succeed.

What is Banks’ argument?

His main argument is that the Judge Gittos simply got the evidence wrong. A judge is supposed to decide a case based on the evidence, and Banks’ lawyer, David Jones QC, says that Judge Gittos made findings that simply weren’t available. For example, the Judge mentions the (in)famous helicopter trip that was arranged by Kim Dotcom to have Banks visit his Coatesville property for lunch. The judge describes the evidence of Dotcom explaining how the two discussed funding for Bank’s mayoral campaign, and two cheques were handed over. He argues that even though Banks and Dotcom disagree on things, they agree that the meeting with the helicopter trip had no mention of a campaign donation, and that the money wasn’t mentioned until a different meeting, months later, which Banks drove to by car. He says that there isn’t even an allegation that any cheques from Kim Dotcom or Mega were handed to Banks personally, at either meeting.

Why would this be important?

Well, if Banks was personally handed cheques, that would be really good evidence that he must have known that Dotcom and/or Mega had made donations to his campaign, so they couldn’t be declared anonymous. But it may not be crucial.

What happens if Banks convinces the High Court the District Court made a mistake?

There are a number of options. The usual result in a successful judicial review is that you order the decision-maker to make the decision again. On a case like this, this is unlikely. Rather, the High Court would probably make the decision itself.

What are the options?

The High Court might decide: you’re right, the District Court argument was completely wrong, and there’s no way there’s enough evidence for us to spend court time on a trial.

Or it might decide: you’re right, the District Court argument was completely wrong, but there in fact was enough other evidence that was before the District Court for this to go to trial.

But you said judicial review of committal decisions are only on very narrow grounds!

They are. It might also decide: actually, this is the type of case where the Court of Appeal was saying judicial review shouldn't be used, and I’m staying out.

Well, what are you picking?

I’m always open for a Court to surprise me, but I think Banks’ chances of winning this case on a judicial review are low. The types of cases where judicial review of a committal decision will succeed are process ones, and Banks simply isn’t arguing anything like ‘the judge should not have committed me to trial because one of the witnesses is his brother-in-law’.

This type of case is pretty much exactly the type of thing the Court of Appeal was warning us about. A decision committing someone to trial doesn’t finally resolve anything (unlike say, a judicial review of a decision about where a mine can be built). Banks hasn’t been convicted of anything, and being committed for trial doesn’t mean Banks stops being a member of Parliament, so even if the Court agrees there’s a problem, I suspect it will just exercise its discretion to stay out of it.

Any other reasons?

When the judge issues his minute, he included a couple of suggestions for the parties. First, he noted that he thought the criminal case was the type of trial that was important enough for the trial to happen in the High Court. He asked the two sides whether they agreed, and my understanding is that they did. I suspect the order has already been made. The judge doesn’t give a reason, but I suspect that the consequences of conviction (Banks ceases to be an MP) will have played a part. An appeal doesn’t affect the automatic vacating of the seat, so you want to do what you can to ensure that as few mistakes happen as possible in the trial.

What does that mean?

The High Court hears all judicial reviews. If it is also the trial court, then it can also exercise the powers it has under the criminal law, which gives the Court, and Banks, another option.

If someone thinks that there isn’t enough evidence for them to be tried, they can ask the trial court to throw out the charge. This is more common in cases where the committal occurred without an assessment of the evidence, but even if (as in this case) the decision to commit to trial involved an actual decision after hearing evidence, you can simply ask the trial court to look again.

This is another reason why I think that the High Court won’t uphold Banks’ judicial review, even if it thinks he is right: he has another – much simpler – option. The Judge can simply look at the evidence himself and decide whether there is enough evidence on which a jury could convict, which is the same test as was applied by Judge Gittos.

What chance is there?

There’s definitely a chance, just as there was a chance before Judge Gittos. It’s still not an easy test for Banks to win on: it basically assumes that all the prosecution evidence that’s not completely unbelievable is true, and then asks: accepting that all the prosecution evidence is true, would there be enough for a conviction?

This sort of application – known as a section 347 application – is common at trials. A witness who you were expecting to give some evidence just doesn’t, and that means there is no evidence about a necessary element of a charge (a trial for illegal importation I did a few years ago succeeded on a 347 application, after we pointed out at the end of the prosecution case that none of the prosecution witnesses had actually given any evidence that the material had come from overseas).

So, in this case, Dotcom’s claim that Banks specifically asked him to split his donation into two donations of $25,000 in order that he could declare them as anonymous will be accepted. And that gets you quite a way toward a finding that Banks knew about the donations, and knew they were falsely declared as anonymous.

At trial, a jury might listen to Dotcom, and decide they can’t be sure that that claim is accurate, and they might decide on that basis that there is reasonable doubt. But the test at this stage isn’t proof beyond reasonable doubt. The question is: is there evidence that a jury could accept that would be enough for a conviction beyond reasonable doubt? Whether any jury accepts that evidence is a matter for it. It may or may not. But if it did, would they convict? And if the answer is “yes”, then we go to trial to find out.

Why did the judge suggest this?

Mostly, to make sure that there isn’t any unnecessary delay. If Banks was just arguing a judicial review on Wednesday, the result might be: I’m not really going to look at this, because you have the option of bringing an application under section 347 of the Crimes Act, which is a better approach than a judicial review of a committal decision. And if that happened, Banks would probably then make an application under section 347 of the Crimes Act. By raising this now, both matters can be dealt with together (or at the very least, preparations can be under way for a 347 application shortly after).

How long will we have to wait?

I doubt it will be long. Judges make rulings on 347 applications on the spot all the time. I suspect we’ll get a reserved decision, if only so the judge can make sure to not make the types of errors Banks’ team says Judge Gittos made (Judge Gittos gave an oral decision). I would be very surprised if a decision wasn’t out before the Christmas break, and it will probably within a week or so.

And then what?

If Banks wins, it’s over.

If Banks loses, then, while he could appeal the judicial review, he probably wouldn’t. And as he couldn’t appeal any decision on a section 347 application (and he can’t judicially review it either, if it’s made by a High Court judge), there would be a High Court trial sometime next year.

You’ve mentioned a “jury” a few times, would it be a jury trial?

The default assumption in Banks’ case is that it will be a jury trial, but it’s essentially up to Banks. Banks would have to apply to have the trial heard before a judge without a jury, and he has given no indication that he intends to do that. The deadline for the easier type of application has already passed (if you apply within 28 days of committal, you use a different section of the Crimes Act, which is easier to meet). This does not appear to have happened. He can still apply, but the test is now slightly harder. However, the fact there was a judicial review, and it’s still months from any trial, would probably mean an application looked at now would still be looked upon favourably. But, again, he has given no indication that he wants a judge-alone trial.

If Banks goes to trial and is convicted, then what?

We’re a little ahead of ourselves, but a conviction on the offence Banks faces would mean he would lose his seat. This happens even if he appeals. Unless Banks is sentenced to prison (which won’t happen), he could run in an Epsom by-election (but probably wouldn’t). If a vacancy occurs less than six months from a general election, the House of Representatives can decide to forgo a by-election.

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