Former ACT leader John Banks has failed in his second bid to have criminal proceedings against him thrown out.
Banks will stand trial next month on a charge of "transmitting a return of electoral expenses knowing that it is false in a material particular" after Justice Edwin Wylie yesterday rejected his application to discharge the matter.
Banks' lawyer, David Jones, QC, had applied for a section 347 discharge for the MP, saying that on the evidence, a court could not find against him.
The charge relates to three entries in the electoral returns for his failed 2010 Auckland mayoral campaign that were recorded as anonymous. Two of $25,000 were from internet mogul Kim Dotcom and one of $15,000 was from SkyCity, which the Crown says Banks knew.
Jones argued that the crucial evidence in the trial would come from the member of Banks' campaign team who prepared the return. That person had deposed that Banks had only flicked through the electoral return and could not have seen that the donations were listed as anonymous.
Justice Wylie yesterday rejected that that evidence was "determinative".
He said the campaign members was but one witness. (His) evidence will simply be part of the pool of evidence which will be available to me as fact finder if the matter proceeds to trial."
The judge said if the evidence given at trial came up to what was supplied in the briefs of the case, and if the evidence was accepted, "a properly directed fact finder could reasonably conclude that Mr Banks knew that the returns were false".
"There is evidence capable of supporting the inference the Crown will be asking me to draw. There may well be other inferences available and, of course, the onus of proof to establish Mr Banks’ guilt beyond reasonable doubt will be on the Crown."
Justice Wylie dismissed the application for a discharge.
Banks will stand trial on May 19. If convicted he faces up to two years in prison or a fine up to $10,000.
- Fairfax Media