Posts by Graeme Edgeler
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Legal Beagle: John Banks: what next?, in reply to Rich of Observationz,
For a by-election to be cancelled, I assume the PM has to make an announcement of the election date, or the last possible date needs to be less than six months away?
Yes. And then Parliament needs to agree by a vote with at least 75% support.
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Legal Beagle: John Banks: what next?, in reply to Rich of Observationz,
So if Banks is convicted by the 6th June or the election date is brought forward, there would be a by-election with presumably the new Act candidate standing.
If the election date is brought forward, that makes it less likely there would be a by-election in the event of a conviction.
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Legal Beagle: John Banks: what next?, in reply to Keir Leslie,
And isn’t it very likely that the lesser time-limited charge would have been sustained?
Not particularly more likely than the more serious charge e faces. Banks' principal defence is that he did not know that Dotcom and SkyCity made the donations to him. This is an element of both the summary and the indictable charges that must be proved beyond reasonable doubt. The additional element that must be proved in the more serious charge is that (in addition to knowing of the donations), Banks also knew they were incorrectly recorded.
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Legal Beagle: John Banks: what next?, in reply to Matthew Poole,
And since we’re talking about something as fundamental as the integrity of our electoral system, one would hope that they’d be rather less conservative about, at the least, putting the evidence before a judge and seeking committal for trial.
In this case it's the integrity of our local electoral system .
And the course taken in this instance was very much against the norm. There is now very rarely any chance to test the evidence before trial. Police file statements, and committal happens automatically, without any assessment of the evidence. Indeed, under changes that took effect earlier this year, committal doesn't happen at all.
I wrote something a number of years ago that looked at the making of charging decisions following complaints against MPs and police, and others for whom a police investigation has particularly heightened concerns about interference etc.
Banks has announced his retirement from politics because this is going to trial. Not because he thinks he's guilty or done anything wrong, but because it's going to trial. Politically, that a decision that is likely to happen most of the time if an MP is charged with a serious-ish imprisonable offence. I do not want police charging people, even MPs, simply so that the courts can sort it out.
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Legal Beagle: John Banks: what next?, in reply to Paul Williams,
You’d hope they’re reviewing their processes in light of this situation (also, credit to McCready).
To be honest, I'm actually pretty happy with the police investigation here. They did exactly what I want them to do in all the other cases. They conducted interviews or took statements from those involved, including with Banks. They basically formed the view that they could have charged Banks with the summary offence, but didn't think they had the evidence for the more serious offence. From start to finish, the investigation took about three months. It didn't start until late, because no-one who knew about the donations knew they hadn't been declared in order to make a complaint to police. If we get this sort of prompt investigation of all electoral law allegations, we can be rather pleased.
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Legal Beagle: Not burglary?, in reply to Rich Lock,
Still a bit of a gap from there to being able to use it in court, but.
No. This could easily be used in a prosecution in respect of a prosecution for any charge these boys might face. I'm just suggested that it wouldn't provide evidence that they were "found" on the property, which is an element of the offence being discussed by police.
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Legal Beagle: Not burglary?, in reply to Ian Dalziel,
The commentary I looked up gave no mention of video
The *legal* commentary I looked up to find out what case law says "found" means gave no mention of whether being caught on security cameras counted as being found. My guess, based on other cases described, is that it would not be enough, but that if the cameras were being monitored live, that a court might well find that was sufficient.
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Legal Beagle: Not burglary?, in reply to Rich Lock,
Graeme, what are the legal boundaries of ‘found’? Your post implies that they have to be physically caught in the act on the property. If there was camera phone footage, CCTV, or similar available that clearly showed they’d been there, would that fall inside or outside the definition?
The commentary I looked up gave no mention of video, but I would probably say that if someone was watching the camera feed live, that would be enough. However, it was clear that someone admitting they had been on the property was not enough (for a confession to be enough, they'd have to admit being seen). It doesn't have to go as far as being caught, but you have to be perceived to be there. I suspect being overheard talking by someone in a neighbouring property would be enough, even if they don't see you.
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Legal Beagle: Not burglary?, in reply to Rich of Observationz,
What’s an “enclosed yard”? You suggested previously it was mostly an industrial premise or building site, rather than a residential garden?
Those are common examples where the offence is used, Adams on Criminal Law notes:
In order to be “enclosed” it is not essential that the area be completely surrounded by fences, walls, or buildings, so that access may be had only through a door or a gate. There may be open spaces on the perimeter, it then being a question of degree whether the area is sufficiently surrounded by barriers that it can more reasonably be regarded as “enclosed” rather than “open”
A garden may fall within this, but will not necessarily.
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Hard News: The judge is not helping, in reply to alobar,
And he doesn't even like journalists , why would he want to be one?
I think he thinks that journalists are fine. The concern is with churnalists, and repeaters, people who give journalists a bad name :-)