Legal Beagle by Graeme Edgeler

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Legal Beagle: Q&A: John Banks' judicial review

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  • Graeme Edgeler,

    In fact, this may not be the most interesting 2010-Auckland-Super-City-election-related criminal case in the Auckland High Court this week. The jury trial of the individuals alleged to have been making false enrolments is nearing completion.

    Wellington, New Zealand • Since Nov 2006 • 3215 posts Report Reply

  • Dean Knight,

    Graeme: Do you have authority or commentary addressing the point automatic effect of conviction - regardless of appeal - point? I've heard that said about s 55 before, but find it odd and suspect the courts prob work to avoid an appeal being nugatory?

    Wellington • Since Nov 2006 • 3 posts Report Reply

  • Graeme Edgeler, in reply to Dean Knight,

    I’ve heard that said about s 55 before, but find it odd and suspect the courts prob work to avoid an appeal being nugatory?

    The Courts are not without options, e.g. if there was a point of law on which a conviction might turn, a Court might decline to formally enter a conviction until an appeal on a reserved point had been heard, but I am confident of the overall point. (There's also the possibility of a discharge without conviction).

    We start with section 55(1):

    The seat of any member of Parliament shall become vacant—
    ...
    if he or she is convicted of an offence punishable by imprisonment for life or by 2 or more years' imprisonment

    Section 57(1) of the Electoral Act requires:

    The Registrar of the court in which any member of Parliament has been convicted of an offence punishable by imprisonment for life or by 2 or more years' imprisonment, or has been convicted of a corrupt practice, shall, within 48 hours after the conviction, notify the fact to the Speaker.

    Section 129(1) requires:

    If the Speaker is satisfied that the seat of a member elected to represent an electoral district has become vacant, the Speaker must, without delay, publish a notice of the vacancy and its cause in the Gazette.

    There is simply nothing that allows for any alternative. Then we contrast it schedule 7, clause 1 of the Local Government Act:

    (1) A person's office as member of a local authority is vacated if the person, while holding office as a member of the local authority,—
    (a) ceases to be an elector or becomes disqualified for registration as an elector under the Electoral Act 1993; or
    (b) is convicted of an offence punishable by a term of imprisonment of 2 years or more.
    (2) If subclause (1)(b) applies,—
    (a) the disqualification does not take effect—
    (i) until the expiration of the time for appealing against the conviction or decision; or
    (ii) if there is an appeal against the conviction or decision, until the appeal is determined; and
    (b) the person is deemed to have been granted leave of absence until the expiration of that time, and is not capable of acting as a member during that time.
    (3) A person may not do an act as a member while disqualified under subclause (1) or while on leave of absence under subclause (2).

    There is simply nothing like that in the Electoral Act, perhaps quite sensibly so. Do we really want MPs who can't vote in the House?

    Also, an appeal won't be nugatory. It would vacate a conviction. I imagine that would be a pretty big deal for John Banks.

    Wellington, New Zealand • Since Nov 2006 • 3215 posts Report Reply

  • Craig Young,

    Graeme, how much cost to the :) consumer and taxpayer :) is there in this litigation?

    Wellington • Since Nov 2006 • 573 posts Report Reply

  • Graeme Edgeler, in reply to Craig Young,

    how much cost to the :) consumer and taxpayer :) is there in this litigation?

    I imagine not very much (to date). Banks will be paying Court fees that will cover a bit, and it's not as if they've hired extra judges or staff to work on it. Now that the Solicitor-General has assumed the prosecution, it will be going up, but again, lots of those costs are fixed.

    Wellington, New Zealand • Since Nov 2006 • 3215 posts Report Reply

  • Nicholas Russell,

    The biggest problem for Banks is that any argument about evidence will probably be treated by the Judge as a matter for the jury. The exception would be if there was no evidence at all such that the committal was unreasonable. Good luck with that.

    Wellington • Since Nov 2009 • 1 posts Report Reply

  • Dean Knight,

    Yeah. I'm not convinced.
    (1) There's wiggle-room there in the manner in which the conviction is entered.
    (2) There remains an interpretative question, perhaps for the Speaker, about whether "is convicted" is a snap-shot or means "is convicted" following exhausted appeals.
    (3) While the LG Act has different language, it was drafted in a different era and isn't determinative.
    (4) Section 27(1) NZ Bill of Rights (natural justice, read together with s 25) may suggest an interpretation that allows the exhaustion of an appeal before removal from office.
    On the other hand, there is something about certainty and swiftness, even a successful appeal might demonstrate that to be manifestly unfair.

    Wellington • Since Nov 2006 • 3 posts Report Reply

  • Rich of Observationz,

    He would always have the option to run again for his seat at a subsequent by-election to see if his electorate were comfortable with the conviction.

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

  • Matthew Poole,

    Graeme, I think you've touched on it, but if a guilty verdict came down could the defence lodge an immediate notice of intent to appeal based on, say, misdirection by the judge, and have the trial court hold entering the conviction until the CA decided whether or not to hear the appeal?

    My understanding is that a guilty verdict results in a conviction which must be entered and, having been entered, must be notified to the Speaker. Or does conviction not get entered until sentencing has been completed?

    Auckland • Since Mar 2007 • 4097 posts Report Reply

  • Graeme Edgeler, in reply to Dean Knight,

    (1) There’s wiggle-room there in the manner in which the conviction is entered.

    Every time I've mentioned this recently, I have been careful to phrase this around an MP being convicted, not an MP being found guilty.

    (2) There remains an interpretative question, perhaps for the Speaker, about whether “is convicted” is a snap-shot or means “is convicted” following exhausted appeals.

    There does, as I don't think it has come up. I note that this Speaker's Ruling does imply an appeal might affect the result.

    (3) While the LG Act has different language, it was drafted in a different era and isn’t determinative.

    Amendments and re-enactments of the various provisions . The text in the section 101X of the Local Government Act 1974 (which is basically the same) was inserted in 1989. The Electoral Act is from 1993. Those are not different eras.

    (4) Section 27(1) NZ Bill of Rights (natural justice, read together with s 25) may suggest an interpretation that allows the exhaustion of an appeal before removal from office.

    Does that apply to prison terms as well?

    Wellington, New Zealand • Since Nov 2006 • 3215 posts Report Reply

  • Graeme Edgeler, in reply to Matthew Poole,

    Graeme, I think you’ve touched on it, but if a guilty verdict came down could the defence lodge an immediate notice of intent to appeal based on, say, misdirection by the judge, and have the trial court hold entering the conviction until the CA decided whether or not to hear the appeal?

    They could try. I’m not sure it would work, but there is probably a way it could be done using the process of reserving a question of law.

    My understanding is that a guilty verdict results in a conviction which must be entered and, having been entered, must be notified to the Speaker. Or does conviction not get entered until sentencing has been completed?

    A conviction can be entered after a guilty verdict, or it can wait until sentencing. If you are considering asking for a discharge without conviction, you can ask the judge not to enter a conviction until sentencing.

    If this was going to be tried, I would imagine this would be the way through it. You would reserve a question of law, and just not hold the sentencing until it was resolved.

    I remain convinced however, that the law requires, if a conviction is entered, the vacation of the seat. As I note, a prison sentence would be required to stop a convicted MP running in any by-election.

    Edit: Dean - I'm happy to have a bet on this in the event it arises :-)

    Wellington, New Zealand • Since Nov 2006 • 3215 posts Report Reply

  • Dean Knight, in reply to Graeme Edgeler,

    Graeme:
    (1) & (2) Noted
    (3) And the 1993 EA replicated the 1956 wording etc.
    (4) No. But you will be aware that natural justice rights are contextual. It may seem to defy logic, but instinctively there is something different in character about ousting someone from democratic office and taking away their liberty, if the conviction was unsafe. The courts can’t restore an MP to office. However, they can order they be freed (albeit can give them back the days of liberty lost).

    PS Happy for the wager. Bottle of pinot noir?
    PPS Note to self: Must re-read Awatere-Huata before making any more wagers. The role of the Speaker and the effect of parliamentary privilege may be crucial.

    Wellington • Since Nov 2006 • 3 posts Report Reply

  • Paul Campbell, in reply to Graeme Edgeler,

    We start with section 55(1):

    The seat of any member of Parliament shall become vacant—...if he or she is convicted of an offence punishable by imprisonment for life or by 2 or more years' imprisonment

    Section 57(1) of the Electoral Act requires:

    The Registrar of the court in which any member of Parliament has been convicted of an offence punishable by imprisonment for life or by 2 or more years' imprisonment, or has been convicted of a corrupt practice, shall, within 48 hours after the conviction, notify the fact to the Speaker.

    Graeme: what happens if way he's convicted but sentenced to less that 2 years or say fined, or gets the white collar equivalent home detention - is this a "corrupt practice"? (seems like one to me)

    After all if he can't attend parliament because of the ankle bracelet he's pretty worthless as an MP

    Dunedin • Since Nov 2006 • 2622 posts Report Reply

  • Matthew Poole, in reply to Dean Knight,

    instinctively there is something different in character about ousting someone from democratic office

    This is the key point in how I've looked at the possible outcome through my limited legal knowledge. Entering the conviction appears, based on Graeme's quite persuasive reasoning, to be the end of the matter for Banks getting the flick. And given the very dramatic consequences of that flick - I would not be surprised if the Maori Party reconsidered their C&S agreement with National in the wake of becoming the sole votes that hold this Parliament together - I foresee the courts being particularly judicious in their conduct in the wake of any guilty verdict.

    Auckland • Since Mar 2007 • 4097 posts Report Reply

  • Matthew Poole, in reply to Paul Campbell,

    what happens if way he’s convicted but sentenced to less that 2 years

    The sentence is irrelevant. The law says merely that one must be convicted of a crime carrying a maximum sentence of two years or more imprisonment, not that such sentence must be passed.

    Auckland • Since Mar 2007 • 4097 posts Report Reply

  • Graeme Edgeler, in reply to Paul Campbell,

    Graeme: what happens if way he’s convicted but sentenced to less that 2 years or say fined, or gets the white collar equivalent home detention – is this a “corrupt practice”? (seems like one to me)

    It’s the conviction that matters, not the the actual sentence. Any conviction for any offence, the maximum penalty for which is two years, or more than two years, is enough. Banks will not get either prison or home detention if he is convicted.

    Wellington, New Zealand • Since Nov 2006 • 3215 posts Report Reply

  • Paul Campbell,

    I was also wondering what a "corrupt practice" is in this context ... would a hypothetical candidate with a zoophilia problem get reported because of the nature of his or her crime rather then the possible sentence

    Dunedin • Since Nov 2006 • 2622 posts Report Reply

  • Graeme Edgeler, in reply to Dean Knight,

    PS Happy for the wager. Bottle of pinot noir?

    I don't really do wine. Do you do bacon?

    PPS Note to self: Must re-read Awatere-Huata before making any more wagers. The role of the Speaker and the effect of parliamentary privilege may be crucial.

    It is definitely possible - I might go so far as likely - that the Speaker would refer the matter to the privileges committee if there was some dispute. I'm saying the result of whatever internal process the Speaker/House employs will be that Banks is gone from Parliament if a conviction has been entered.

    Wellington, New Zealand • Since Nov 2006 • 3215 posts Report Reply

  • Graeme Edgeler, in reply to Paul Campbell,

    I was also wondering what a “corrupt practice” is in this context

    A corrupt practice is an offence against specifically named sections of the Electoral Act, or similar legislation. This equivalent offence to this one in the Electoral Act is a corrupt practice (as are things like destroying ballot papers, treating, personation, bribery and others including some election finance-related matters).

    Wellington, New Zealand • Since Nov 2006 • 3215 posts Report Reply

  • william blake,

    There are two cheques. If they are sequential, this seems to be evidence of skulduggery.

    Since Mar 2010 • 380 posts Report Reply

  • FletcherB,

    On the topic of Bank not having signalled he's interested in a judge only trial, but still having that option...

    It occurs to me (no legal training) that judges are more likely to follow the written word of a law even if it defies "common sense" and also, are more likely to know exactly what level of evidence constitutes proof beyond reasonable doubt as compared to say, merely suggesting something is likely.... They are also more likely to completely ignore someones public persona, and stick to what's presented in court, ignoring all "previous knowledge" of a subject.

    On the other hand, a jury while trying to follow these ideals, is far more likely to let these things influence them.

    If the evidence or points of law presented are at all marginal, or not quite as clear-cut as they seem to be (as presented in the media over the past few years), I think Banks reputation and public persona would likely see him more likely convicted by a jury than a judge, but his own opinion of his reputation and persona might not allow him to see this, or accept it if offered as advice.

    Short version- I expect he probably thinks he has a better chance with a Jury, but in fact would have a better chance with a judge.

    Comments?

    West Auckland • Since Nov 2006 • 893 posts Report Reply

  • Graeme Edgeler, in reply to william blake,

    There are two cheques. If they are sequential, this seems to be evidence of skulduggery.

    That's not my understanding. I believe the evidence is that they are different accounts, possibly of different entities.

    Wellington, New Zealand • Since Nov 2006 • 3215 posts Report Reply

  • Rich of Observationz, in reply to FletcherB,

    One would assume that a central Auckland jury pool might be 40% Tory. The defence gets objections, so could possibly get this over 50% by rejecting likely lefties.

    You need 11/12 of the jury for a conviction, so there's a reasonable chance of getting two hard-core righties and a retrial, which would probably not be listed until after the election. (Unless there's some provision that retrials go to the front of the queue?)

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

  • Graeme Edgeler, in reply to Rich of Observationz,

    One would assume that a central Auckland jury pool might be 40% Tory.

    The Auckland High Court jury district isn't central Auckland. It goes as far north as Orewa, and stops just short of Bombay going south. Farthest west is Muriwai, and East just beyond Onetangi on Waiheke Island.

    Wellington, New Zealand • Since Nov 2006 • 3215 posts Report Reply

  • Rich of Observationz, in reply to Graeme Edgeler,

    Even so, and without spending my morning parsing election results, I'd think that area has voted around 50% for right-wing parties in recent elections. I'd assume that the tendency of middle-class people to opt out of jury service might then bias the pool to the left.

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

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