John Banks – escaping justice

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John Banks

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Once upon a time, the people of a tiny little nation at the bottom of the world believed that their country lived by laws that applied to everyone. The system was simple; irrespective of who you were and how wealthy or poor you were; regardless of whether you were powerful or powerless, the law applied to all equally.

How naive we were.

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1. Background

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(Blogger’s note: This section deal with bachground events leading up to the recent Police investigation and decision regarding John Bank’s donations scandal. For those who are aware of the facts, you may wish to “cut to the chase” and scroll down to Section 2,  Police Decision. )

The donations saga began in April of this year, when revelations surfaced that John Banks, MP for Epsom, and a Minister in  John Key’s National-led government, was accused of hiding the names of donors in his Electoral Donations return. Instead of listing each donor by name, they were referred to as “anonymous”.

The donations were made toward his unsuccessful bid  for the 2010 Mayoral election.

In all, Banks recieved donations of,

• $15,000 from Skycity casino
• $50,000 from entrepreneur, Kim Dotcom
• $15,690 from an “anonymous” donor for radio advertising

All were listed as “anonymous”, despite John Banks being fully aware of the donor’s identity.

The saga began on 5 April with this revelation,

“ ACT MP John Banks failed to declare a $15,000 donation from SkyCity in his return for Auckland’s mayoral election, it has been claimed in Parliament.

Labour’s deputy leader, Grant Robertson, said SkyCity had publicly stated it gave $15,000 donations to Len Brown, who is now the city’s mayor, and Mr Banks, who was the main challenger.

“John Banks failed to declare a $15,000 donation from SkyCity in his electoral return,” Mr Robertson said, speaking under parliamentary privilege.

“SkyCity publicly stated they had given $15,000 to both the main candidates and that they have a policy of asking those who get donations to declare it.

“That donation does not appear in his return”. “

See:   Banks accused of failing to declare donation

Whilst Banks did not declare the $15,000 donation from Skycity, his political rival, Len Brown did,

” SkyCity gave $15,000 each to Len Brown, now mayor, and Mr Banks, his rival, during that campaign.

Although Mr Brown’s donation return listed SkyCity as a donor, Mr Banks’ listed an anonymous donation of $15,000. It did not mention SkyCity. “

See: Banks did not reveal SkyCity as big donor

On 15 April, Kim Dotcom held a birthday party at his Coatsville mansion in Auckland. John Banks and his wife were invited to attend,

” … Mr Banks said he hardly knew the internet tycoon.

He said his contact with Dotcom was limited to a total of 20 minutes conversation and he had been to Dotcom’s mansion in Coatesville only once for dinner.

But film of the event – Dotcom’s birthday party – showed Mr Banks making a toast to the tycoon.

Footage showed Mr Banks raising a glass and saying, “I’m going to propose a toast to Kim Dotcom. Please fill your glasses and stand. Happy birthday and best wishes to Kim Dotcom, Mona and his family.”

Staff at the mansion said it was one of three visits. The pair also met at Princes Wharf on New Year’s Eve 2010 when Dotcom put on a $600,000 fireworks display.

The pair first met in April 2010 when Dotcom sent his helicopter to collect Mr Banks from Mechanics Bay in downtown Auckland.

Dotcom said the pair met in the mansion, sitting at a large square table, and chatted.

Bodyguard Wayne Tempero was present, as was one of Dotcom’s butlers. His company chief financial officer also attended briefly.

“He mentioned the elections were coming up [and] he was raising money for his campaign,” Dotcom said. “He said it was hard to raise money in New Zealand, the mayoral campaign was coming up and he’s trying to raise funds for that.

“I kind of liked the guy. I said, ‘I’m happy to help.’ I told Wayne to write a cheque for $50,000.

“His [Mr Banks’] eyes got a little bit bigger at that moment.”

Mr Tempero asked the chief financial officer to come into the room to write the cheque.

“John said, ‘Wait a minute’,” Dotcom recalled last night. “‘It would be good if you could split it up into two payments of 25 [thousand dollars], then I don’t declare publicly who made it’.”

Dotcom said one cheque was made out in his own name, or the name of his company Megastuff Ltd, and the other in Mr Tempero’s name.

“He [Mr Banks] called me a few days after the cheques entered his bank account and he thanked me personally.”

Last night, Mr Banks said there would be nothing wrong with his telling people how to give anonymously.

“If someone says to me, ‘How can I put money into your campaign?’ what would be wrong with telling them that – if that was that case?

“I could say, ‘Firstly, you should talk to people who are raising money for me. But if you want to put money into my campaign, you can put it in two ways. You can put it in anonymously or you can put it in and have it declared.’ It’s quite legitimate. “

See: Dotcom’s secret donation to Banks

Note that John Banks claimed “he hardly knew the internet tycoon“. As events progressed, it became abundantly clear that Banks had lied, and his relationship with Dorcom was more than  ” limited to a total of 20 minutes conversation”.

Then on 27 April, TV3’s John Campbell discovered another donor to Banks’ election campaign who had been listed as “anonymous” in their electoral donations return;  Kim Dotcom,

” Kim Dotcom is the latest person to have been found to have allegedly donated money anonymously to John Banks.

It is already known that in the race to be super city mayor, Sky City donated $15,000 each to the two front runners.

Len Brown listed Sky City as a donor but Mr Banks did not.

Campbell Live was interested in that because we had heard Kim Dotcom had made a donation three times that size to the John Banks mayoralty campaign.

Campbell Live has even been told Mr Banks was so grateful that he called Dotcom to thank him for it.

An investigation found that like the Sky City donation, the Dotcom donation appears to be listed as anonymous.

The question is why?  “

When Campbell pressed Banks as to whether he had received donations from Dotcom or how well he knew the German entrepreneur, or having flown to his mansion in a helicopter, John Banks mental condition appears to have suddenly deteriorated with a sudden onset of Alzheimers,

” Kim Dotcom says the birthday party was not the only occasion Mr Banks visited, saying he once sent his helicopter into Auckland to collect Mr Banks from the central city landing strip at Mechanic’s Bay, and fly him out to the Dotcom Mansion.

But Mr Banks does not remember whether that happened or not.

“I don’t remember that,” Mr Banks says.

When pressed on whether or not he had ever taken a helicopter to the Dotcom mansion, Mr Banks remained vague.

“I can’t recall whether I did or not,” he says.

Dotcom says Mr Banks gratefully accepted his offer, but Dotcom also says Mr Banks asked for the donation to be split into two payments of $25,000 each.

Mr Banks says he does not remember who gave him money.

“Well, I don’t know. I mean I haven’t seen the forms now for a couple of years, so I don’t know who gave me money, I can’t remember now,” says Mr Banks.

He also says he could not remember discussing money with Dotcom and his team.

“Well I met with them, I know them, but I can’t recall discussing money with them”. “

Banks added his by-now famous line,

“I welcome this enquiry by the electoral officer, no problems, nothing to hide, nothing to fear.”

See:   Banks knew about ‘anonymous’ Dotcom donation – reports

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According to John Campbell, there were no donations from Kim Dotcom listed on Banks’ Electoral returns – but there were five anonmymous donations of $25,000.

See: Banks questioned over Dotcom donation

Why was Kim Dotcom’s $50,000 donation not listed on Banks’ Return? Here’s why,

” Act leader John Banks asked for a $50,000 political donation to be split into two parts so it could be made anonymously, says Kim Dotcom and one other witness.

Dotcom said the request was made on April 15, 2010, when Mr Banks was preparing to campaign for the Auckland mayoralty.

He said there were at times three other people in the room while the donation was discussed – and Mr Banks rang later to thank him for it.  “

See: Dotcom’s secret donation to Banks

Because two $25,000 donations could be listed as “anonymous” under the Electoral Act?

On the same day, the matter of Skycity’s donation was reported to the police for investigation, via the Electoral Commission. The complaint was raised by Labour MP, Trevor Mallard,

” Electoral officer Bruce Thomas in responding to Mr Mallard today noted that under section 138 of the Local Electoral Act 2001, he was required to report to the police any written complaint alleging an offence had been committed.

“Accordingly, I advise that I am referring this matter onto the police for their attention”. “

See: Banks’ SkyCity donation complaint referred to police

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On the 29th of April, Banks was interviewed on TVNZ’s Q+A current affairs programme.

” PAUL  HOLMES           
Mr Parker, I would ask you to sit there for a little while, because, Mr Banks, other matters have reared their head over the last couple of days, and David Shearer, the Labour leader, is demanding of the Prime Minister that he stand you down over the Kim Dotcom donation affair. Should he, or shouldn’t you stand yourself down?

JOHN  BANKS        
This is the problem – it’s a sideshow; it’s mostly a media beat-up, and much of it is humbug.

PAUL            
No, dammit, it’s about the law, Mr Banks.

JOHN            
Yes, well, have a look at the 2001 act and you’ll see what a professor of law said this morning in the Sunday Herald. Yesterday the media had me going to jail. Today they’re saying I’m likely to be in the clear. That is the problem. Last week I was the sideshow. Next week Mr Shearer will be the sideshow because Mr Shearer’s going to be rolled in the next couple of weeks. That’s the problem.

PAUL            
Can I just have a look at some of what’s emerged? You were up at Kim Dotcom’s, and did you know he was giving you the money? Did you know he was writing out a cheque or getting his man to write a cheque?

JOHN            
Look, we’re here to talk about investment, growth and jobs…

PAUL            
Well, I’m sorry, Mr Banks, this has taken precedence.

JOHN            
Let me answer your question. All this has been narrated mainly on the front page of the local newspaper here and across the media…

PAUL            
Well, I’m giving you the chance to debate it with us here, so answer the question. Were you there when the cheques came out? Did you know he was giving you the money?

JOHN            
I don’t…

PAUL            
Did he mention $50,000?

JOHN            
Why don’t you…

PAUL            
Were you there when they started writing a cheque?

JOHN            
(LAUGHS)

PAUL            
Did you ask for it to be two cheques because you could make it anonymous? And if you were there and you declared that donation anonymous, you’re dead meat, aren’t you, because that was illegal.

JOHN            
I think you think I came up the river on a cabbage boat. I can tell you that when I signed my declaration for the mayoralty I signed it in good faith in the knowledge as a Justice of the Peace as true and correct. I have nothing to fear and nothing to hide and I welcome the inquiry and everything will come out in the wash, Mr Holmes. I’m more invested in the real issues of investment growth and jobs and providing working opportunities for 80,000 of our kids that are out of school and out of luck.

PAUL            
But are you saying – because it is illegal, you know, don’t you, that if you know where a donation came from, to claim it was anonymous. So is what Mr Dotcom is saying about – your eyes perked up, your eyes went big at the mention of 50 grand. And so the fella gets the chequebook out and you’re sitting there and he writes a cheque. I mean, are you saying that he’s lying? Because that’s what he’s saying.

JOHN            
I don’t know why you’re going on about this. I have nothing to hide.

PAUL            
Is he lying?

JOHN            
It’s a media beat-up. Yesterday I was going to jail. Today I’m going to be cleared. I mean, that’s what the media get up to, and you’re beating it up again. Look, we’ve got an inquiry…

PAUL            
Mr Banks.

JOHN            
I’m very happy to have the inquiry. (CHUCKLES)

PAUL            
Did you know Kim Dotcom had written you two cheques for 50 grand, and did you therefore put them in your return as two lots of 25, anonymous? Yes or no?

JOHN            
I signed my return honestly. I have nothing to hide and nothing to fear and it will all come…

PAUL            
Did you know Mr Dotcom was throwing 50 grand at you?

JOHN            
…out in the wash. And I want to talk this morning about our competition with Australia for investment and jobs and getting the government off our backs and out of our pockets and providing an economic environment where we can create wealth for our country. “

Paul Holmes’ closing comment in that interview,

“Thank you. We have to leave it there. And I can’t believe you can’t remember whether you went in a helicopter or not.”

See: Q+A: Transcript of David Parker and John Banks interview

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On the same day (29th), Prime Minister John Key issued a public statement supporting John Banks,

” I’ve sought an assurance from Mr Banks that he complied with local government law. He’s given me that assurance. I accept him at his word. If people don’t believe that they are free to test that with the police. “

Whether or not Key’s statement is factually correct is open to interpretation, as the Prime Minister later acknowledged that he had not spoken directly with Banks.

Key rejected calls to stand Banks  down, even whilst Police were investigating the Minister.

See: PM standing by under fire Banks

On the following day, 30 April, the media reported more information backing up Kim Dotcom’s claims,

” Internet tycoon Kim Dotcom’s records will show ACT MP John Banks made a phone call to say thanks for two $25,000 donations, it’s been reported…

… Mr Banks says he’s done nothing wrong, didn’t know Dotcom made the donations and didn’t phone him to thank him for them.

3News reports Mr Banks met Dotcom in June 2010 and a few days later two $25,000 cheques were banked in Queenstown into Mr Banks’ mayoral fund.

They were made out to Team Banks.

“Our source says Banks rang Dotcom two days later. The source says `Kim’s records will show this’,” 3News reports…

…Mr Banks won’t answer questions other than to say he didn’t call Dotcom about the donations. “

See:  Dotcom says Banks thanked him for cheques

Labour MP Trevor Mallard stated he was prepared to lay a Police complaint John Banks’ failure to properly disclose  Kim Dotcom’s donation, adding to his previous complaint regarding Skycity’s $15,000 donation to Banks, and which also had not been properly disclosed on his Electoral Donation Returns.

Dotcom gave further details how the $50,000 donation to Banks had been made,

” Dotcom has said one of the two cheques paid to Mr Banks was made out in his own name, or the name of his company, Megastuff. The other was in the name of his bodyguard, Wayne Tempero.

The Herald last night spoke to a former Dotcom employee, who said they had personally deposited the cheques into Mr Banks’ campaign account.

The former employee said, “They were deposited just through a normal bank process. It would have just come up as a $25,000 deposit.”

… Dotcom says Mr Banks rang him to thank him for the money after it was paid. “

See: Banks’ funds: Dotcom checks books

John Banks, in turn, denied that he had phoned Kim Dotcom to thank him for any donations,

” John Banks says he never called German billionaire Kim Dotcom to thank him for a $50,000 donation to his 2010 Auckland mayoralty campaign…

… Banks has previously said he did not recall whether he made the phone call, but now says he never did. However he did have contact with Dotcom about “other matters“. “

See: Banks denies calling Dotcom over donation

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By 1 May, the pressure and mounting evidence had forced John Banks into a corner. Every allegation made by Kim Dotcom had been documented with evidence,  witnesses, and even a video of his relationship with Banks.

Meanwhile, Banks had nothing but constant protests of  “I can’t remember”.

“… Mr Banks denied misleading the public about the donations and events around them, including a helicopter ride to Dotcom’s mansion which he has said he cannot remember.

“I didn’t lie. There’s no reason to believe that I lied. I simply couldn’t recall“. “

See: Banks: I didn’t lie, I simply forgot

Who forgets a helicopter ride? Especially a flight to one of the largest mansions in Auckland?!

Which, of course, begs the question as to why a person with such “deteriorating memory” holds a Ministerial Warrant and position of authority  in  government. Most people with such a poor  mental condition would be on extended sick leave. Or in a medical facility receiving appropriate care.

Banks finally admitted that he had not been upfront with the public,

”  He specifically referred to an interview which aired Monday on Campbell Live, in which he repeatedly said he “couldn’t remember” his communications with Kim Dotcom.

But Mr Banks says the answers he gave on the programme were wrong and admits he was not telling the truth.

“I could have quite easily answered all of those questions up front, contrary to the legal advice.

“I have never had any problem answering questions in a very straight manner…that is why the public will be surprised I took the legal advice literally, not to jeopardise any inquiry,” he says.

Mr Banks still backs his legal standing over the declaration of donations, repeating he has “nothing to fear and nothing to hide”.

“There could be a public perception that I have been obfuscating around some of these things. I shouldn’t have taken that legal advice and I should have answered questions much more straight”. “

See: Banks ‘regrets’ legal advice to stay silent

See: What the documents say about Dotcom’s donation (video)

Which is interesting, as one wonders how John Banks could have had the time to contact his lawyer prior to his interview with John Campbell, to seek legal advice?

And why would “his lawyer tell him to keep his lips sealed on the matter”?

Generally, lawyers only give such advice only if a person is being interviewed by Police or have been charged  with an offence.

It seems bizarre to understand why a lawyer would offer such advice. After all, Banks was not a  suspect in any criminal case. And any suggestion that a lawyer would give such advice so as ” not to jeopardise any inquiry ” seems unlikely. Remember that the Skycity issue had not been in the public domain until John Campbells first interviewed Banks  for the TV3 story; Banks accused of failing to declare donation.

So Banks was forced to admit that he had been – in his own words – “obfuscating “. But then offered  a weak excuse that he had “advised by his lawyer” not to answer questions.

Does this seem even vaguely plausible?

Even Wellington’s daily newspaper, ‘The Dominion Post‘ found Banks’ explanation unconvincing. On 2 May, their front page demanded answers to five, specific  questions,

” 1. Have you actually read the Local Electoral Act?

2. Did you tell Kim Dotcom to split a $50,000 donation into two cheques?

3. What did Kim Dotcom want in return for his donation?

4. You admit advocating for him – when, to who, and on what subjects?

5. Did you give the prime minister the same untrue explanations you’ve given the media? “

The same article went on to state,

” Mr Key has insisted that he would sack Mr Banks if it turned out the MP had not told him the truth – but apparently that test applies only to questions the prime minister and his office put to Mr Banks directly, not the answers he gave to the media and the public.

And, as it turns out, Mr Key’s office has never actually asked Mr Banks the questions that might put the prime minister in the awkward position of knowing whether the former Auckland mayor broke the spirit, if not the letter, of the law over anonymous donations to his mayoral campaign fund in 2010 – questions such as do you know what “anonymous” means, did you tell Dotcom to divide a $50,000 donation into two cheques, what did Dotcom want from you in return, and why was it so important for you to have these donations treated anonymously, even when the donors clearly weren’t fussed? “

Two further revelations were made public;

Firstly, it transpired that John Key hadn’t spoken directly to Banks. Instead the ACT leader had given ”an absolute and categorical assurance to my office”  (to Chief of Staff, Wayne Eagleson?) that he acted within the Local Electoral Act 2001.

It seems inexplicable that since the story first broke on 5 April, the Prime Minister had not pulled Banks into his office and spoken directly with him to gain a “categorical assurance”  that he had complied with the law.

Instead, the Prime Minister had left this extremely serious matter to a staffer.

Which, in itself, is incredible, as John Key’s Coalition rests on a precarious one-seat majority. If Banks were to mis-calculate and be forced to resign, Key’s government would fall and be forced to hold an early election.

The only conclusion one can draw from Key’s decision not to confront Banks directly is that he wanted to keep his Minister at “arms length” from himself.  In the world of Political Theatre, this is known as “plausible deniability“.

Or, more realistically, Key  lied and he had met, secretly, with Banks.

A second matter arose on this day, and Banks admitted that he had lobbied another Minister on behalf of Kim Dotcom,

” Land Information Minister Maurice Williamson this morning confirmed Banks had called him in mid 2011 on behalf of Dotcom, who was applying through the Overseas Investment Office to buy his Coatesville mansion.

Bank said this afternoon he spoke to Williamson about two times, largely about procedural matters because Dotcom’s application was taking a long time to process.

“I rang Maurice Williamson about it, I wasn’t the Mayor of Auckland, I wasn’t a Member of Parliament, I was a private citizen and I made the phone call and I’d do it again.”

“I said to Mr Dotcom I would give him advice on that and I did“.”

See: Five questions Banks must answer

Williamson’s involvement on this issue became murkier, as  claims and denials began to swirl around those involved,

” Documents released under the Official Information Act show Dotcom wanted to buy the $30 million mansion he was renting in in Coatesville, its $5 million neighbouring “cottage” and a $10 million beach house at Doubtless Bay in Northland.

The application to buy the properties went to Mr Williamson, who gave formal approval on April 7 last year.

Dotcom’s bodyguard, Wayne Tempero, said he took a call from Mr Banks about the application. The call was to let Dotcom know the application was going ahead as expected and that Mr Williamson had signed it.

Dotcom said Mr Tempero briefed him on the conversation.

Last night, Mr Banks confirmed he had updated Dotcom’s staff about the application to buy the land.

A spokesman said: “Mr Banks communicated with Mr Tempero that the OIO application was continuing to progress through the approval process.”

But a spokeswoman for Mr Williamson said he had given no information to anyone outside his office over giving approval to allow Dotcom to buy the land.  “

See: John Banks: I briefed Dotcom

At this point, Prime Minister John Key must have been dreading that another of his Ministers (Maurice Williamson) was being slowly dragged into this mess.

But Key did himself no favours when he attempted to justify John Banks’ constantly-changing story, by suggesting,

“Well, there’s quite a wide definition of ethics.”

When even the National Business Review –  the most business-friendly; National-friendly; and ACT-friendly newspaper states,

“It was hardly the most ringing of endorsements. “

– then you know you’re in trouble.

See: Prime minister defends embattled John Banks

In the same article, Banks was reported to have stated,

“I was not aware that Mr Dotcom had made this donation to my campaign. I did not call him to thank him as the donation was made anonymously.

I can confirm that I had contact with Mr Dotcom on other matters, including thanking him for the generous $500,000 donation that he made to the ratepayers of Auckland for the 2010 New Year’s Eve fireworks display.

However, I never called and thanked him for any donation to my mayoral campaign.”

See: Prime minister defends embattled John Banks

Which is “an interesting proposition” (to borrow one of the Prime Minister’s phrases), considering the dates involved;

1. Kim Dotcom states that Banks’  request for a donation was made on  15 April 2010, when Mr Banks was preparing to campaign for the Auckland mayoralty.  (See: Banks sought split donation – Dotcom)
2. The 2010 Local Body elections were held, via postal ballot from 17 September to  Saturday 9 October 2010. (See: Frequently asked questions – 2010 local elections)
3. Kim Dotcom wrote out two cheques, for $25,000 each, on 9 June 2010, and both were deposited into “Team Banksie’s” account. (See: What the documents say about Dotcom’s donation )
4. Kim Dotcom says that John Banks phoned him two days later ( 11 June)  to thank him for the donation(s). (See: Dotcom says Banks thanked him for cheques)
5. John Banks states that he ” had contact with Mr Dotcom on other matters, including thanking him for the generous $500,000 donation that he made to the ratepayers of Auckland for the 2010 New Year’s Eve fireworks display “.
6. So John Banks is saying that he phoned Kim Dotcom, on 11 June, to thank him for a fireworks display, that was six months away? What part of that sounds even remotely plausible?  One would  think that Banks had more on his mind – his mayoralty campaign for example – than a fireworks display that was half a year away.

John Banks’ assertion that he phoned Kim Dotcom to thank for for an event that was six months away is not credible and obviously Banks lied regarding his reason for phoning Dotcom.

On the following day, another ACT member dropped an even bigger ‘clanger‘.

On 2 May,  ACT Party President, Chris Simmons, was interviewed on Radio New Zealand’as “Checkpoint” programme by Mary Wilson. (Note: This blogger personally heard this interview.)

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Act Party president Chris Simmons

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Simmons stated that the suggestion, by John Banks,  to split the $50,000 donation was,

“…one of the suggestions made to Dotcom.

He has given me an indication why he made that suggestion and that was that he initially was going to put in $25,000 of his own money and he figured that other people should be putting in the same sort of numbers.”

With that extraordinary slip-of-the-tongue, Simmons had publicly admitted what Kim Dotcom had been alleging, and what John Banks had been consistently andf strenuously denying.

Simons retracted within the hour, according to the “NZ Herald“.

See: Act Party president flip flops on money

A  day later, on 3 May, a third allegation of a supposedly “anonymous” donation surfaced,

”  Questions were raised yesterday about a $15,000 gift of “radio advertising” to his 2010 mayoralty campaign. Police are investigating other donations to his failed campaign.

Mr Banks admitted yesterday he got a discounted deal at internet mogul Kim Dotcom’s favourite Hong Kong hotel, after initially denying he got cheap rates for the Christmas holiday.

Prime Minister John Key continued to back Mr Banks, but still has not talked to his embattled minister outside Cabinet.

Labour MP Trevor Mallard said it would be “absolutely weird” that $15,690 worth of radio advertisements could be donated anonymously, especially as they must be approved by a candidate, or his or her nominee.

“If it pretends to be anonymous and it’s not, then that is a breach of a law”.  “

See: Campaign advertising gift in spotlight

Not only was this allegation of yet another “anonymous donation” further indication that Banks was not complying with the Local Electoral Act – but Prime Minister John Key had still not spoken directly with his Minister.

One wonders what was preventing Key with meeting with Banks?

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Or if he had met, why was it being kept secret?

On 16 May, further revelations appeared in the media, suggesting that there had been a greater degree of familiarity between John Banks and Kim Dotcom than Banks had previously admitted,

” ACT leader John Banks has admitted he received a $1000 gift basket from internet tycoon Kim Dotcom, which should have been declared under parliamentary rules.

Banks, the lone ACT MP in government, received the basket during a stay at the Grant Hyatt hotel in Hong Kong during 2011, according to a New Zealand Herald story today.

In reply, he sent Dotcom a note thanking him for his hospitality, saying he enjoyed his stay.

Cabinet rules require members of Parliament to disclose to the Registrar of Pecuniary Interests any gift accepted worth more than $500. This declaration includes hospitality and donations in cash or kind. “

See:  Banks admits receiving gift from Kim Dotcom

Remember that on 15 April, Banks said “he hardly knew the internet tycoon”.

By 5 July, Police had completed their investigation,

See: Police investigation into Banks’ mayoral campaign completed

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2. Police Decision

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On 26 July, nearly four months after the story broke on ‘Campbell Live’ on 5 April, the police arrived at a decision: they would not be prosecuting,

” Police investigated complaints in respect to donations from Sky City and the internet millionaire Kim Dotcom and the donation of radio advertising from a donor who wishes to remain anonymous.

They say they have established that he solicited the donations that a campaign volunteer subsequently recorded in his electoral return as anonymous, but that he sought and received confirmation the returns were accurate before he signed them off.

In a letter to Mr Mallard, police say there is insufficient evidence on any of the three complaints to prosecute on the basis that the return was submitted knowing it was false.

Assistant Commissioner Malcolm Burgess told Checkpoint the volunteer who compiled the return followed an appropriate procedure. He says the volunteer told Mr Banks the return was recorded correctly, and Mr Banks acted within the law in signing it off. “

Listen to Mary Wilson’s interview with Police Asst Commissioner Malcolm Burgess

See: Labour says Banks should still be stood down

Prime Minister John Key was quick to leap to John Banks defence as Labour leader David Shearer and Greens co-Leader Metiria Turei called for Banks to be stood down.  In an extraordinary attempt to trivialise the scandal, Key  described  the complaints laid against Banks as “politically motivated”, and said,

“The issue is whether the minister complied with the law. The police have effectively confirmed today that he has.”

See: Opposition calls for Key to dump Banks

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Once again, John Key has mis-represented the actual Police decision to the point where it is now the Prime Minister who could be accused of not telling the truth.

In fact, far from confirming that John Banks “complied with the law“, the Police report was damning,

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See: Police Complaint File No: 120427/9334

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3. Questions & Conclusions & Questions

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Note the following for each donor;

Skycity

Skycity handed a cheque ($15,000 in cash would be difficult to fit into an envelope) to John Banks. Any such cheque would have had “Skycity” or it’s holding company’s name stamped on it.

Why was it still recorded as “anonymous”?

Was the “Treasurer” for “Team Banksie” given instructions to list the Skycity donation as anonymous? Or did s/he make their own decision to do so?

When cheques are deposited in banks, relevant details are usually recorded on a  Banking Supplementary Deposit form, which lists,

• name of cheque issuer
• issuing bank
• issuing Bank branch
• amount to be paid

A carbon-copy of this Banking Supplementary Deposit form is usually retained within the Deposit book.

Why were the details in the Banking Supplementary Deposit book not used to record who deposited which cheque?

Did the Police ask these relevant questions and did they sight “Team Banksies” Banking Supplementary Deposit book?

John Banks’ mayoral opponant, Len Brown, was able to correctly list “Skycity” as the donor of a similar $15,000 cheque to Brown’s campaign Team. Why was John Banks unable to follow suit?

Anonymous Radio Ads

$15,690 worth of radio advertising was recorded as “Anonymous”  in the Electoral Return, by “Team Banksie’s” Treasurer.

How is it feasible that the Treasurer was unaware of who provided funding for radio advertisements?

Was the Treasurer not part of “Team Banksie’s” Campaign Committee?

Were  publicity and advertising strategies not discussed at “Team Banksie’s” Campaign Committee meetings?

How could publicity and advertising strategies be discussed at “Team Banksie’s” Campaign Committee meetings – without setting a budget for advertising, and to which the Campaign’s Treasurer would have had in-put into relevant discussions?

Did the Police ask these questions from John Banks; his Campaign Manager; and the Treasurer?

Kim Dotcom

Police confirmed Kim Dotcom’s allegations,

1. Banks solicited a donation from Kim Dotcom
2. A $50,000 donation was made, split in two lots of $25,000 each
3. The donation(s) were recorded as anonymous

The questions that Police do not address in their letter to Trevor Mallard  are,

A. Why was the $50,000 donation split in two?

B. Did they not think this was odd?

C. Did “Team Banksie’s” Treasurer at any time enquire from John Banks where those three donations had originated from?

D. Did Police ask John Banks if he phoned Kim Dotcom to thank him for the donation(s)?

E. Did Police take sworn statements from Dotcom’s witnesses?

F. Did Police ask John Banks if he (Banks) enquired from “Team Banksie’s” Treasurer why Kim Dotcom’s donation was not listed on the Electoral Returns statement? (Considering that John Banks was expecting a donation from Kim Dotcom, surely he – Banks – would have noticed the absence of Dotcom’s name?)

G. Did Police ask John Banks if he advised Kim Dotcom to split the donation in two? If not, why not?

H. Why were some donations listed as “anonymous” whilst others provided identifying details of donors? What process was used to differentiate between “anonymous” and identified donors?

None of these questions appear to have been addressed in any manner whatsoever.

See also: Listen to Mary Wilson’s interview with Malcolm Burgess

If it is true that John Banks did advise Kim Dotcom to split the $50,000 donation in two parts so as to avoid naming the donor, then, it seems inescapable that  he (Banks) has committed a prima facie offence under both parts of Section 134, namely that,

“Every candidate commits an offence who transmits a return of electoral expenses knowing that it is false in any material particular, and is liable on conviction on indictment to imprisonment  for a term not exceeding 2 years or to a fine not exceeding $10,000 and… “

Banks knew that Kim Dotcom had donated $50,000.

Banks knew that the amount was split in two lots of $25,000.

Banks knew it was done to enable the donation(s) to be listed as “anonymous”.

Banks signed the Electoral Return knowing that it was false in a material particular.

Lastly, all three donations were investigated by Police, and yet they concluded that,

“Any charges for offences persuant to Section 134(2) must be laid within six months of the electoral return being supplied. Police first received this complaint for investigation on 1 May 2012, approximately 10 months after the expiry of six month operiod.  Police are therefore unable to consider charges persuant to this section.”

The relevant Act states,

134 False return

• (1) Every candidate commits an offence who transmits a return of electoral expenses knowing that it is false in any material particular, and is liable on conviction on indictment to imprisonment for a term not exceeding 2 years or to a fine not exceeding $10,000.

  (2) Every candidate commits an offence and is liable on summary conviction to a fine not exceeding $5,000 who transmits a return of electoral expenses that is false in any material particular unless the candidate proves—

  • (a) that he or she had no intention to mis-state or conceal the facts; and

  • (b) that he or she took all reasonable steps to ensure that the information was accurate.

See: Local Electoral Act 2001, 134, False Return

As an astute reader will notice, there is no reference to any “statute of limitations” in this section.

Therefore, this blogger can only surmise at the true reason why John Banks was not prosecuted for breaching section 134  of the Local  Electoral Act 2001.

As for John Banks stating that he was “unaware” of the contents of his Electoral Act, which he signed, the Crimes Act states quite clearly,

25 Ignorance of law

• The fact that an offender is ignorant of the law is not an excuse for any offence committed by him.

  Compare: 1908 No 32 s 45

See: Crimes Act, Section 25

Other sections of the Crimes Act that might apply in this instance,

228 Dishonestly taking or using document

Every one is liable to imprisonment for a term not exceeding 7 years who, with intent to obtain any property, service, pecuniary advantage, or valuable consideration,—

• (a) dishonestly and without claim of right, takes or obtains any document; or

• (b) dishonestly and without claim of right, uses or attempts to use any document.

See: Crimes Act, Section 228

242 False statement by promoter, etc

(1) Every one is liable to imprisonment for a term not exceeding 10 years who, in respect of any body, whether incorporated or unincorporated and whether formed or intended to be formed, makes or concurs in making or publishes any false statement, whether in any prospectus, account, or otherwise, with intent—

• (a) to induce any person, whether ascertained or not, to subscribe to any security within the meaning of the Securities Act 1978; or

• (b) to deceive or cause loss to any person, whether ascertained or not; or

• (c) to induce any person, whether ascertained or not, to entrust or advance any property to any other person.

(2) In this section, false statement means any statement in respect of which the person making or publishing the statement—

• (a) knows the statement is false in a material particular; or

• (b) is reckless as to the whether the statement is false in a material particular.

See: Crimes Act,  Section 242

The John Banks electoral donations saga illustrates the old maxim that “justice must not only be done, it must be seen to be done“.

In this case, not only has justice not been done, but it has been seen that a politician has escaped prosecution on the flimsiest of technicalities. (A  “technicality” which does not even appear to exist.)

Compare John Banks with that of  ex-Labour Minister Taito Phillip Field, who was charged with 35 counts of  bribery and corruption crimes.

See: Taito Phillip Field case: Timeline

Field was subsequently convicted on eleven bribery and corruption charges and fifteen  counts of wilfully perverting the course of justice. He was  sentenced to six years’ jail.

See: Ex-minister’s trial a spectacular fall from grace

John Banks has escaped justice and will not face his accusers in Court.  However, the matter is far from “closed”.

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4. What is Past is Prologue

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This issue demands three responses;

1. This blogger has written to Police Asst Commissioner, Malcolm Burgess, seeking answers to several questions,

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    From:  Frank Macskasy <fmacskasy@yahoo.com>
    To:  Malcolm Burgess <malcolm.burgess@police.govt.nz>
    Date:  Saturday, 28 July 2012 10:59 AM
    Subject:  File no: 120427/9334 (Complaint by Trevor Mallard, re, John Banks)

    Malcolm Burgess
    Police Asst Commissioner
    NZ Police

    28 July 2012

    Sir,

    With regards to the outcome of police investigation into Trevor  Mallard’s complaint regarding John Bank’s Electoral Return for his 2010 mayoral candidacy, could you please provide some details on this issue.

    Namely, I would appreciate your response and answers to the following questions;

    A. Why was the $50,000 donation split in two?

    B. Did Police not think this was odd?

    C. Did “Team Banksie’s” Treasurer at any time enquire from John Banks where those three donations (Skycity, radio advertising, and Kim Dotcom) had originated from?

    D. Did Police ask John Banks if he phoned Kim Dotcom to thank him for the donation(s)?

    E. Did Police take sworn statements from Dotcom’s witnesses?

    F. Did Police ask John Banks if he (Banks) enquired from “Team Banksie’s” Treasurer why Kim Dotcom’s donation was not listed on the Electoral Returns statement? (Considering that John Banks was expecting a donation from Kim Dotcom, surely he – Banks – would have noticed the absence of Dotcom’s name?)

    G. Did Police ask John Banks if he advised Kim Dotcom to split the donation in two? If not, why not?

    H. Why were some donations listed as “anonymous” whilst others provided identifying details of donors? What process was used to differentiate between “anonymous” and identified donors?

    I.   In a letter to Trevor Mallard dated 26 July 2012, and signed by Detective Superindent Peter Read, Mr Read states “Any charges for offences persuant to Section 134(2) must be laid within six months of the electoral return being supplied. Police first received this complaint for investigation on 1 May 2012, approximately 10 months after the expiry of six month operiod.  Police are therefore unable to consider charges persuant to this section.”. Can you please refer me to the section of the Local Electoral Act 2001 that refers to a six month “statute of limitations?

    For full disclosure and fairness to you, this information will be used as part of a blogpost I am currently working on, and which will be made public.

    Thank you for your time, and any light you can shed on the matters I have raised.

    Regards,
    -Frank Macskasy
    Blogger
   “Frankly Speaking“

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2. This blogger then contacted Transparency.Org, an international organisation that ranks countries according to the degree of corruption within a particular society.

Last year  New Zealand ranked #1, from a list of 183 nations. North Korea and Somalia tied-equal at #182.

The question is; do we deserve to maintain our top spot?  This blogger invited Transparency International to reconsider our #1 ranking, in the light of recent events surrounding John Banks,

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From:      Frank Macskasy <fmacskasy@yahoo.com>
To:            Murray Petrie <executive@transparency.org.nz>
Date:        Saturday, 28 July 2012 5:50 PM
Subject:  John Banks

Murray Petrie
NZ Chapter
Transparency International

28 July 2012

Sir,

In your organisation’s  Corruption Transparency Index 2011, New Zealand rates #1 from a list of 183 countries.

I wish to refer you to a recent matter surrounding John Banks, a Minister in New Zealand’s current government, who earlier this year was accused of   filing a fraudulent Election Donations return to the NZ Electoral Commission.

The full details are covered here, in a report which I have published on my blog: https://fmacskasy.wordpress.com/2012/07/26/john-banks-escaping-justice/. I invite you to consider the contents of my report; to pass it further through your organisation; and to reconsider whether or not New Zealand still deserves it’s #1 ranking on your Corruption Transparency Index.

It is my contention that New Zealand has fallen well short of full transparency on this issue, and that the Police complaint laid against John Banks produced a result that is highly questionable and the decision not to prosecute the person in question lacks probity.

I look forward to your response, and willingly offer any further assistance you may require in this matter.

Regards,

-Frank Macskasy
Blogger,
“Frankly Speaking“

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3. Lastly, this blogger contacted the Prime Minister, John Key, inviting his response to comments and questions raised in this blogpost,

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From: Frank Macskasy <fmacskasy@yahoo.com>
To: John Key <john.key@parliament.govt.nz>
Cc: Jim Mora <afternoons@radionz.co.nz>,
    Chris Hipkins <chris.hipkins@parliament.govt.nz>,
    Chris Laidlaw RNZ <sunday@radionz.co.nz>,
    Dominion Post <editor@dompost.co.nz>,
    Daily News <editor@dailynews.co.nz>,
    Daily Post <editor@dailypost.co.nz>,
    David Shearer <david.shearer@parliament.govt.nz>,
    Hutt News <editor@huttnews.co.nz>,
    Kim Hill <saturday@radionz.co.nz>,
    Listener <editor@listener.co.nz>,
    Metiria Turei <metiria.turei@parliament.govt.nz>,
    Morning Report <morningreport@radionz.co.nz>,
    NZ Herald <editor@herald.co.nz>,
    Nine To Noon RNZ <ninetonoon@radionz.co.nz>,
    Otago Daily Times <odt.editor@alliedpress.co.nz>,
    Q+A <Q+A@tvnz.co.nz>,
    Russel Norman <Russel.Norman@parliament.govt.nz>,
    Southland Times <editor@stl.co.nz>,
    TVNZ News <news@tvnz.co.nz>,
    The Press <letters@press.co.nz>,
    The Wellingtonian <editor@thewellingtonian.co.nz>,
    Waikato Times <editor@waikatotimes.co.nz>,
    Wairarapa Times-Age <editor@age.co.nz>,
    Winston Peters <winston.peters@parliament.govt.nz>
Subject: Corrupt practices under the Local Electoral Act (2001)
Date: Saturday, 28 July 2012 6:57 PM

Rt Hon. John Key
Prime Minister
Parliament House
Wellington

28 July 2012
 

Sir,

With regards to matters raised by TV3’s John Campbell, Trevor Mallard, and others, surrounding John Banks; his 2010 Electoral Return; and subsequent Police investigation, I invite you to read and consider questions and comments made on my blogpost, “John Banks – escaping justice“.

You will note that I have raised several questions regarding this matter, and have written to  Police Asst Commissioner,  Malcolm Burgess, for clarification and answers to issues that I regard as important.

I have also contacted Transparency International, a global NGO that rates countries according to levels of corruption within their society. Last year, New Zealand ranked #1 on a  Corruption Transparency Index 2011. Following the John Banks Donations Affair, I have invited Transparency Internation to review our top ranking, in terms of least corrupt nation on Earth.

Far from being a “closed matter”, I believe this issue is of vital importance – especially since it appears that many of Kim Dotcom’s allegations against John Banks have been substantiated.

The question that I am asking; will you remove John Banks from his Ministerial roles?

Regards,

-Frank Macskasy
Blogger,
“Frankly Speaking“

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This issue is far from closed.

It is just the beginning.

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*

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Additional

Local Electoral Act 2001

Schedule 2 Return of electoral expenses and electoral donations (As at 2010)

Beehive: John Banks

Police statement: Outcome of Police investigation into electoral returns of Hon John Banks

Banks’ donations: No charges laid

Banks won’t be charged, police say

Transparency International Corruption Perception Index

NZ Herald: Parliament’s loose cannon

National: Peters unacceptable in a National-led Government (2008)

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