Jared Savage

Jared Savage is the New Zealand Herald's investigations editor.

Judge was wrong - lawyer for Banks

The judge who sent John Banks to stand trial on false election return allegations made several factual errors that led to a wrong decision, according to the senior lawyer for the politician.

In the judgment that led to Mr Banks resigning from his ministerial portfolios, Judge Phil Gittos said the "evidence clearly shows that Mr Banks was aware of the source" of donations from Kim Dotcom and SkyCity and could "not properly" have declared them as anonymous on his electoral return for his failed campaign for the Auckland mayoralty in 2010.

The judge said there was enough evidence to commit Mr Banks to trial on a charge under the Local Electoral Act - which he wrongly called "Local Elections Act" - after the private prosecution by retired accountant Graham McCready.

The case has now been taken over by Solicitor-General Michael Heron QC but the Act Party leader has filed an urgent appeal to the High Court at Auckland to review the decision that has rocked his political career.

The Herald has been granted access to the court file which reveals the details of Mr Banks' claim for the first time.

Mr Banks' lawyer, David Jones QC, has filed a detailed memorandum which says that Mr Banks had been "vilified" in Parliament and the media as a result of Judge Gittos' ruling, which he described as "fundamentally misstated and misdirected itself both on the evidence and law".

He wrote that the "factual findings made, the analysis of the evidence and the resulting process by which the court came to its decision were wrong".

In particular, Mr Jones said Judge Gittos was wrong to state that two $25,000 cheques from Kim Dotcom were personally given to Mr Banks after he flew to the millionaire's mansion in a helicopter.

"The two cheques signed by the witness Mr Dotcom and drawn on Megastuff Ltd were not given to Mr Banks direct at all," wrote Mr Jones.

"The meeting at which donations were discussed was not the meeting at which Mr Banks arrived in a helicopter but a subsequent meeting some two months later, when he arrived by car."

Mr Jones also said there were 89 entries in the donations part of the electoral return, not 67 as noted by Judge Gittos, with 45 of those listed as anonymous.

Judge Gittos also said that Mr Banks "glanced" at the electoral return before signing; while Mr Jones said the evidence from the witness was that he "might have glanced" at them but didn't read them.

"All entries on all pages would have to be read to identify the donation amounts," said Mr Jones.

He also submitted the "erroneous findings" were integral to the judge's decision-making process around the "critical element" that Mr Banks knew the return was false.

Mr Jones has asked the High Court to quash the trial committal decision and discharge Mr Banks as there is insufficient evidence.

Mr McCready has said if the MP for Epsom disagreed with the evidence put forward he should argue his case during the trial.

"The case law is that on being committed to trial, if you disagree with the evidence, you stand trial and if you're convicted then you can file an appeal."

The judicial review application will be heard at the High Court at Auckland next month.

- NZ Herald

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