Major errors by dud judge in Banks case

There seems to be a serious dearth of quality judges in our district courts.

The NZ Herald outlines the rather basic errors of Judge Gittos in sending the Banks case to trial.

Jared Savage has made a good fist of the summary:

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.

 


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.

  • mike

    I was reading an article about cases in the state where district court judges “hometown” a decision, that is find someone guilty, but their decision is full of inconsistencies and errors and is easily overturned by a higher court.

    • BJ

      Sounds like gutless judges happy to shrug off the resultant criticism from a sloppy decision that means someone higher up has to be the decider, rather than begrudgingly do the right thing when their own personal beliefs get in the way of integrity.

      • AnonWgtn

        Judge probably a Greenpeace member.

  • Dick Brown

    Woops.

    Yes, a factual error in summing up. Bloody amateur; you’d think there would be some sort of peer review of the Judge’s summing up notes in such an important case with some pretty serious ramifications.

    Don’t get me wrong; Banks is as dodgy as a two bob watch but we have to get shit RIGHT before we move on and plug gaps in systems.

    • OhopeBeachBugger

      You’ve summed up my perspective perfectly. No question Banks was up to no good…but no question, too, that there’s more malarkey here than a pub full of Irishmen.

      • Dick Brown

        Exactly.

        Even if we stump up 40K for Judges Admin Assistant with a sole KRA of maintaining accuracy in potential Case Law cases we would be saving the taxpayer millions in simple, accuracy-based mistakes.

        And now we get a new trial.

        ching-ching $$$$

      • andrew carrot

        I believe he was acting within the law at the time, a law which also allowed Len to operate a secret trust (the ‘hear no evil, see no evil’ option). Every mayoral candidate around the country used the same funding methods and I’d say a good number of them will be shitting themselves if Banks is convicted. I assume Banks is being targeted by Mr McIncredulous, who’s being supported by the usual conspiracy theorists and a certain MP of Wellington origin, because his vote in Parliament is crucial to the government, especially now that Dunne (not the MP I referred to before) has gone into sulk mode. At the end of the day, local electoral law is a disgrace, even when compared to the Electoral Finance Act.

        • OhopeBeachBugger

          Yup, well, the letter perhaps, but the spirit, most certainly not. I would expect people of integrity to go with the spirit. Also, just because everyone is doing it, don’t make it right.

          • andrew carrot

            I doubt he and all the others (including those operating secret trusts, which I regard as insidious) had much need to consider the spirit as the law stated what was required from them. Some laws are unpalatable to us good, blemish-free citizens, but such laws unavoidably represent the intent of Parliament.

    • Mr_Blobby

      Yes, the cover up has started, next is for the Crown prosecutor to drop the ball.

      Guilty as sin, but our justice system is not about guilt or innocence, it is about interpreting the law. Guilt or innocence is just an inconvenience.

  • sheppy

    And the major item that the MSM as usual misses is that if this was a Lefty it would have been swept under the carpet just like Lyin’ Len’s sign that remained for several days on the Elleslie Panmure highway after all the other candidates had to ensure they were taken down

  • Sir Cullen’s Sidekick

    Move on bros. Banks is toast any way.

    • Wine Man

      yes sadly and with Jam or Honey on it too…

  • Toryboy

    The Judge will just be a socialist. Bet he was in the Labour party and regular rent-a-demo activist when at University.

    He probably didn’t listen to a single word being said in Court and was instead doodling on his writing pad the following:

    Tree: pretty
    Banks: capitalist exploiter

    The sooner we institute McCarthy style loyalty oaths, and select committee hearings to weed out the socialists and traitors from the public service – the better!

    • Dick Brown

      I’ll admit I laughed my ass off and upvoted accordingly.

    • Guest

      Oh look another tori lunatic. Brilliant, I kind of missed the lunatic ranting and ravings of the old tory.

      • Kimbo

        Oh, look. Another humourless lost soul who has wandered over from the Standard who doesn’t get irony

  • Clemgeopin

    Both Banks and Brown seem to be discredited dishonest crooks and both need to go.

    • James Growley

      Lets add the well nourished German cockroach to that list.

      • island time

        And the Fat German is meant to be a credible witness in this case while he is on the run from US authorities – go figure

        • andrew carrot

          Judge Gittos seemed to think so! Which makes me wonder whether His Honour actually read Fatcom’s evidence.

  • tarkwin

    Funny how anyone who has anything to do with the Auckland mayoralty comes out looking like a discredited second hand car dealer. Even the judge looks stupid.

    • Agent BallSack

      Quite often appearances are not deceiving.

      • Salacious T Crumb

        Totally agree BallSack.
        For example Len Brown appears to be a lying, manipulative, sociopathic c*nt.

  • Sammy

    The errors hardly seem to detract from the overall case, I fail to see how even the most naive individual could buy Bank’s clintonesque explanation….

    • Mr_Blobby

      Yes, but it will come down to the meaning of a word and a point of law. The truth is just an inconvenient nuisance.

      • andrew carrot

        You seem to be very well briefed on this case Mr Blobby. Can you can fill us on the details missing from this MSM report?

  • Mr_Blobby

    Enough of all this legal mumbo jumbo. Go to Court put your case and let a jury of your peers decide.

    That is we can find a jury of 12 short people with big enough egos to classed as peers.

    • Wine Man

      The description you offer sounds like 12 clones of 2 min Len

  • Mad Dog

    Face facts….John Banks is a LIAR and a FRAUDSTER.

    Hence the reason why he is in court.

    Perhaps you people think it is normal to be given a helicopter ride to a mansion, then not be able to remember it afterwards? Are you people really that gullible and STUPID?

    • OT Richter

      Although you are obviously a fucktard, I tend to agree with you.

    • andrew carrot

      So, guilty until proven innocent is your mantra? I doubt you’d hold the same view if the Crown charged you with an offence, which I assume you’d be able to defend successfully. As you say, facing the facts is the only test; insinuation, talk back radio, MSM opinion pieces, Question Time, are not the fora in which the accuracy and relevancy of facts are tested. That’s why we have a supposedly independent judiciary, who are bound to get their ‘calls’ right.

  • Jason Brown

    Meanwhile, with no arrests from the Christchurch CTV collapse, Pike River mine, $22 million Leaky House “Syndrome” and NZ still yet to sign up to the UN convention on corruption (or plug the dodgy tax haven offshore directors gaps in the law) we have the utter temerity to advise the Chinese on anti-corruption.

    Oh, wait, sorry, wrong website.

    http://www.nzherald.co.nz/international-politics/news/article.cfm?c_id=1503226&objectid=11148305

    • andrew carrot

      You can add two zeros to your leaky house guesstimate. At least.

      • Jason Brown

        Good catch, $22 billion it was indeed. Not so much a guesstimate as a vague memory of a piece in the dialogue section of the NZH op-ed section, i.e. opposite the editorial. Can’t remember name or title, but was a quantity surveyor, or some such exotica of the construction industry. Come to think of it, his estimate may have been $26 billion in total damages, but what’s a few billion among friends ?

  • surfisup

    Banks forgets taking a helicopter ride to visit a person as infamous (even back then) as kimdotcon?

    Give me a break.

    I just don’t buy banks story. Kim Dotcom just seems to present the more honest story here.

    • Agent BallSack

      Perhaps he needs a big card with NO printed on it and the media will ignore him?

    • tarkwin

      Life would have been a lot easier for everyone if the helicopter had crashed into Len Browns office with Banks and the fat Kraut on board.

    • andrew carrot

      Assuming, of course, that the evidence provided by the Fatcom team (inc Tempero and Tower) is accurate. I think that’s what Banks is testing isn’t he? I somewhat doubt Banks’ QC would ask the Court to review the decision if the evidence relied on by Judge Gittos was reliable and verifiable. (Lawyer in action here)

  • Elliot Flowers

    It wasn’t just DOTCOM, it was SKY CITY boss as well. Both testified to making anonymous donations as requested, SKY CITY boss being at the table with Banks when the check was passed over to HIM in a blank envelope. Banks previous behaviour indicates he as Liar, and so he is in this case.
    Of course Banks lawyer is going to claim ‘Major errors by Dud Judge’. It’s what he is being paid to do. Good grief, piss off banks, you are too old and too dishonest.

    • andrew carrot

      Exactly. Inside an envelope. Banks argued that he never saw the cheque nor, obviously, the amount on the cheque. The amount was not discussed at all. He said that he handed the unopened envelope to his treasurer, who said in Court that he accompanied Banks to Skycity. The treasurer said in court that Banks was not shown any donation reports. Skycity’s donation could have been for $5 or $15k for all Banks knew. If he did, then the link between donor and donee would be made and the donor’s anonymity could not be maintained, and this case would be heading in a different direction. The boss of Skycity said in court that he gave no thought to whether the donation should be made anonymously, as he hadn’t been asked to. So, if the candidate didn’t know how much the donation was for he couldn’t identify the donor in his return, hence no falsity. Re Fatcom’s claims, I suspect a period of time in the witness box will be very embarrassing for him if he intends to rely on the reports he gave to the Police, which were subsequently accepted as evidence in the District Court. Mind you, it should be a good experience for him as he approaches his extradition hearing.

      • Nicely summarised. Thank you for that.

      • Nicely summarised. Thank you for that.

      • LeftRightWrong

        Any smart person would have checked the amount. The possible (don’t want to get myself in shit) reason why he did this was plausible deniability. Its a sneaky underhanded way out.

        • PhantomsDoc

          But legal.

          • LeftRightWrong

            By the narrowest of margins, a criminal who gets off on a technicality is still (or at least should still be) a criminal.

          • andrew carrot

            So where do you draw the line between a ‘technical’ interpretation of the law and guilt? If an accused is not a criminal under the law how can he be elsewhere? If you drove a car and caused an accident resulting in serious injury to a kid on a bike, would you be upset if your charge was dismissed for a legal reason or would you say “yes, under the law i’m innocent, but I wish to go to prison anyway (and make it the maximum term, Your Honour)”?

          • LeftRightWrong

            Everyone (with the exception of a few people) would always want the best outcome in a case for them, there is no point in me denying it.

        • Jason Brown

          “The possible (don’t want to get myself in shit) reason why he did this was plausible deniability.”

          You and PhantomDoc are bang on the money. The law specifically exempts politicians, left, right or wrong, from guilt if they absolve themselves of knowledge in donations … of amounts.

          This is what is known in development (aid) circles as legalised corruption. Plainly, we should know how much is going to our politicians. And who or what is giving.

          This is legalised plausible deniability.

          Stamp “APPROVED”, officially.

      • Elliot Flowers

        The point isn’t the amount, the point is that Banks knew what was in the envelope, and who it came from. The whole transaction took place right in front of him. That’s hardly anonymous is it?

        • andrew carrot

          The issue here is that under local election rules there’s no requirement for candidates to identify donors in election returns. Hence the reason candidates ask for donations from people or organisations who are usually reluctant to be publicly identified. This is completely different from general elections where strict rules apply to the use of anonymity in returns. Why the difference? I can’t fathom it out so go ask your mp. And while he may asked for a donation, and Sky might have given him a cheque, banks wouldn’t know if they had until he opened the envelope. Maybe he made the mistake of not running a secret trust, like Len, but just as the other candidates expected to receive something from Sky, by not looking at the cheque he would never know the amount written on it. End of story.

          • Jason Brown

            Oooo, secret trust

          • andrew carrot

            All donations are received by the trust, the trustee writes out cheques to the candidate, the candidate does not know who, other than the trust, is funding his campaign.

41%