Banks seeks judicial review of Judge’s decision

In an unusual move Banks will be lodging papers at the High Court in Auckland today seeking a review of the decision of Judge Phil Gittos of the Auckland District Court to commit him to trial on whether he knowingly filed an donation return that was materially false.

While granting such a review is rare Banks could get there.

The Gittos oral decision is full of errors. It is almost as if the judge did not read the witness statements.  Here are a few.

The opening line of the decision cites the offence as being one under the “Local Elections Act.”  It is actually the Local Electoral Act.   It doesn’t get any better.

The Judge says that McCready produced evidence to show that all three of the donations in question were given personally to Banks. Only one small problem.  No such evidence was put into Court by anyone.

DotCon and Tempero (the hired henchman) never claimed to have given the cheques to Banks.  Tempero says the Financial officer of Megastuff was tasked with depositing the donations. Banks’ campaign Treasurer agrees.  He says the cheques were deposited directly into the campaign bank account as two 25k deposits with no identifying information on the bank records some weeks after the meeting between Banks and DotCon took place.  The Treasurer controlled the bank account records Banks never saw them.  

The evidence of both Tempero and the Campaign Treasurer is supported by the police investigation (the executive summary is available online) that establishes that the donations were deposited by Dot Con employee not by Banks or any of his campaign crew.


Later the judge repeats the error and says DotCon gave evidence that Banks flew in a helicopter to DotCon’s mansion discussed donating to the mayoral campaign and that “two cheques were given to Mr Banks”  He says this must have been memorable for Banks given the circumstances.  That might be so if it happened.

As for the Helicopter? DotCon says Banks drove to the meeting where the donation was discussed.

In a final irony the judge had access to the Banks donation return longer than the candidate did.  He must have looked at it.  Even then he got the number of pages of the return wrong and the number of donations.

For far too long Judges and courts have indulged litigants in person…time to revisit this case and use it as an example to tidy up laws surrounding vexatious litigants.


THANK YOU for being a subscriber. Because of you Whaleoil is going from strength to strength. It is a little known fact that Whaleoil subscribers are better in bed, good looking and highly intelligent. Sometimes all at once! Please Click Here Now to subscribe to an ad-free Whaleoil.

  • blokeintakapuna

    If Judge Phil can get such basic and obvious details so wrong, on numerous occasions on this one example… How credible are his other outcomes?

    • Random66

      Yes, it is disappointing to discover that justice is only for those who can afford to hold a judge to account. There are probably decisions made everyday by certain judges that should be questioned, however that takes time and money, and unfortunately not everyone can afford to have their case re-looked at. We should expect our judges to be fair and correct first time around, not second time round at considerable cost to the person seeking fair justice.

    • HtD

      About as credible as the rest of the judiciary, especially if you
      consider the the only people who normally check these judgements are
      their mates, fellow judges. Also don’t forget NZ judges preside over
      both civil and criminal cases, irrespective of their expertise. Shambles.

  • Tony

    Two things that could be in-play here.

    The first one is known in the US as ‘home-towning’ the decision. It happens when the local judge doesn’t want to get off side with the population he/she lives with, so makes a popular ruling which is so full of silly mistakes that it will be overturned upon appeal.

    The second option is that the judge is a dullard and should be fired b/c the mistakes that he made appear to be nothing short of negligence. He should also be sued b/c he has made it necessary for Banks to spend money to seek redress.

  • Justsayn

    The judicial review application is very unlikely to succeed, but is a good idea anyway.

    It allows Banks to get his side of the story out there in the media, without being seen to be treading on the Court process. For instance, assuming everything above is true, you may ask yourself…

    If dotcrim’s people deposited the money, and the deposit didn’t indicate the source, then even if Banks knew dotcrim intended to donate 2 x 25k how could he swear something that says “that donation there is from dotcrim” when he could not be sure that it was (dotcrim might change his mind and donated less, someone else might have donated 25k). Sure he might have strongly suspected it was from dotcrim, sure he would assume it was dotcrim, sure he would say thanks next time they met, but how was he to be sure the anonymous donation was from him? It was anonymous in the only sense that matters in this context.

    • peterwn

      If the judgment is as sloppy in a material way as claimed, then a judicial review would succeed. The key word here is ‘material’. Presumably John’s lawyer first asked the judge to ‘recall’ and correct the judgment but the judge presumably stood by it.

      Interestingly I put it to Chester Borrows (Courts Minister) at a meeting a few months back that the criteria for private prosecutions should be tightened up. He indicated that he present situation should remain citing the Waitara Constable ‘A’ case as a valid private prosecution.

      • Justsayn

        I read the judgment over lunch. Two things stood out to me.

        The Court said that the SkyCity GM personally handed Banks the donation, and that it was in an envelope [see para 21]. There is no suggestion in the judgment Banks was told the amount. Doesn’t that support Banks? Unless he opened the envelope and saw how much it was for (and there was no evidence of that – to the contrary there was evidence that the banking etc was not done by Banks himself) then how was he supposed to later identify a particular donation as coming from SkyCity?

        If he didn’t know how much the cheque was for, then how can he have a case to answer on that charge? I don’t get it.

        The Court noted there were 67 donations listed. 5 of them were for 25k, and each of those 5 was anonymous [see para 25]. Even if Banks knew for sure that Krim gave 2 x 25s, and I don’t know that he knew that for sure even though the judgement concludes he did, then how was he to know which two of the five they were? Was he expected to guess that?

        If Banks has a problem it may come from something that hasn’t been aired by Mr McCready or Judge Gittos, but I’m sure would be apparent to Crown Law. I’m not going to say what that is because Mr McCready is a fuckwit.

        • Mr_Blobby

          Seriously you think Banksie had absolutely no idea who his largest donors were, that he took no active part in the fund raising.

          Pants down is in need of your sort of logic.

          • Justsayn

            No I don’t think he has no idea, but that is not the question he was asked. I think he would have been sure that Krim intended to donate two lots of 25k. But, even assuming Krim followed through how does that help Banks identify which of the 5 they were? That is what he was being asked to do.

            What they need on the form is a more pertinent question, like “Do you believe that you receive a donation of more that $1000, or a series of donations totalling more than $1000 from the same person, and if so from whom?”

            To that question I’m sure Banks would have said .Kirm and SkyCity and probably a few more as well. But you cannot blame him for answering the silly question that was asked – in fact the criticism is that he didn’t answer it.

          • Mr_Blobby

            They are just numbers on a page until you put a name next to them, so pick a number and put a name next to it.

          • Tony

            Mr B: While I have no doubt that Banks expected certain sums from certain parties, no evidence seems to be available which proves that he knew what had actually been given. Solicitation does not equate to knowledge of receipt. The requirements here seem to be no-different to an evidence chain.

          • Mr_Blobby

            Banksie is taking advantage of deliberately, poorly written laws. Another case of one rule for us and one rule for them.

            Somebody gives you a substantial donation and nobody knows anything about it and nobody talks about it, seriously in what World is that even remotely realistic.

            You don’t give unanimous donations at that level and not expect
            something in return, in New Zealand it is access, for private briefings and the opportunity to put your point of view across in a friendly environment, something not afforded the average Joe blow.

      • Graeme Edgeler

        They have been tightened up. The Criminal Procedure Bill (passed in 2011, but not in force until earlier this year) includes a process where you effectively have to get permission from judge before you lay a private prosecution.

        The Banks private prosecution was commenced before this law came into effect, so is being dealt with under the old law.

      • Mr_Blobby

        Bullshit funded by the TAX payer and it failed.

    • Orewa Beach

      Whether those errors in the judgment will be pivotal in the Judicial Review will depend on whether they are Obiter dictum or Ratio decidendi.

  • drummerboy

    but, but, but John Campbell said he flew there in a helicopter….”Remarkable!”.

    This judge could just be acting politically as well.

    • Time For Accountability

      Which the do – especially at the appeal and supreme levels.

  • Justsayn

    BTW, and at risk of being slightly off-topic…

    The point of disclosure is that you want to know who the big donors are. The hope is that the fact you know shames the candidate away from acting to advange their donor – daylight fades the bribe. The same it true of political parties. There are plenty of ways around disclosure, but that is why we try.

    One things very clear in this instance – when dotcrim tried to call in what he clearly saw as a bribe, it turned out Banks had far more backbone than dotcrim expected – so dotcrim then spat the dummy and went public with it when the time came. Somehow that is said to reflect badly on Banks rather than on dotcrim – I don’t understand that interpretation of events.

    By contrast Labour receive a lot of their money from unions (and some from SkyCity I’m sure but that won’t stop them voting on the SkyCity issue) and conspicuously act to benefit the unions – so much so they recently gave the unions a say (a decisive one as it turned out) in who the leader of Labour should be. Yet we say that is okay. I don’t get that. The relationship between the Green Party and Greenpeace may be just as bad – if there is any distinction to be drawn between the two at all.

  • Eiselmann

    There’s something amiss here, has to be…who’s ever heard of a judge that discounts key facts when making decisions.

    • HtD

      They often ignore things they’re supposed to, for example ignoring the requirements of Sentencing Act. Unless it’s ‘manifestly unjust’ that’s ignored and judges are unanswerable, not reviewed and have jobs for life

  • Dick Brown

    Speaking of burdens on the taxpayer…. oh it’s John Banks

  • JeffDaRef

    Is that the same Grant McKavanagh who recently made a swift exit from NZ Soccer?

  • BJ

    One could consider political bias on the part of the judge lead to his decision to deliberately protract Banks case.

    • Phar Lap

      Especially since Len Brown did the same.Only difference, he got the money put through secret trust accounts.Shows the type of cunning ratbag Brown really is.

  • Mr_Blobby

    Personally I think Banksie is as guilty as sin.

    But who is to say, lets have the case and see what the result is.

    Banksie is taking advantage of deliberately, poorly written laws. Another case of one rule for us and one rule for them.

    Somebody gives you a substantial donation and nobody knows anything about it and nobody talks about it, seriously in what World is that even remotely realistic.

    You don’t give unanimous donations at that level and not expect something in return, in New Zealand it is access, for private briefings and the opportunity to put your point of view across in a friendly environment, something not afforded the average Joe blow.

    Behind you all the way with brown stain but lets be consistent, Banksie need some sunlight to.

  • blairmulholland

    Banksie’s only mistake was believing that an anonymous donor would by nature wish to remain anonymous. All politicians do what he did. The only difference is that 99.9% of these donor are not stark raving mad like Augustus Gloop.

  • THis guy seems to be eminently suitable to be a Judge in NZ. Why the surprise?