Posts by Graeme Edgeler
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Legal Beagle: Q&A: John Banks' judicial review, in reply to Graeme Edgeler,
No-one mentioning an application under s 347 of the Crimes Act, as yet.
Confirmed that no 347 application was argued. If Banks loses the judicial review on the basis that you shouldn't really be able to judicially review a committal decision in these circumstances, that may be the next step.
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Legal Beagle: Q&A: John Banks' judicial review, in reply to Jeremy Andrew,
So, a reserved decision
Yes, and Stuff is reporting (as predicted), that the decision should be out next week. No-one mentioning an application under s 347 of the Crimes Act, as yet.
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Legal Beagle: Q&A: John Banks' judicial review, in reply to Ian Dalziel,
I guess there was a change from this early reporting
I certainly haven't seen the evidence, so my belief could easily be misinformed.
It is interesting to note that the information you point to not only backs up the claim that Dotcom didn't hand the cheques to Banks personally, but in fact, no-one in the Banks camp at all was handed any such donation.
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Legal Beagle: Q&A: John Banks' judicial review, in reply to Rich of Observationz,
One would assume that a central Auckland jury pool might be 40% Tory.
The Auckland High Court jury district isn't central Auckland. It goes as far north as Orewa, and stops just short of Bombay going south. Farthest west is Muriwai, and East just beyond Onetangi on Waiheke Island.
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Legal Beagle: Q&A: John Banks' judicial review, in reply to william blake,
There are two cheques. If they are sequential, this seems to be evidence of skulduggery.
That's not my understanding. I believe the evidence is that they are different accounts, possibly of different entities.
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Legal Beagle: Q&A: John Banks' judicial review, in reply to Paul Campbell,
I was also wondering what a “corrupt practice” is in this context
A corrupt practice is an offence against specifically named sections of the Electoral Act, or similar legislation. This equivalent offence to this one in the Electoral Act is a corrupt practice (as are things like destroying ballot papers, treating, personation, bribery and others including some election finance-related matters).
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Legal Beagle: Q&A: John Banks' judicial review, in reply to Dean Knight,
PS Happy for the wager. Bottle of pinot noir?
I don't really do wine. Do you do bacon?
PPS Note to self: Must re-read Awatere-Huata before making any more wagers. The role of the Speaker and the effect of parliamentary privilege may be crucial.
It is definitely possible - I might go so far as likely - that the Speaker would refer the matter to the privileges committee if there was some dispute. I'm saying the result of whatever internal process the Speaker/House employs will be that Banks is gone from Parliament if a conviction has been entered.
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Legal Beagle: Q&A: John Banks' judicial review, in reply to Paul Campbell,
Graeme: what happens if way he’s convicted but sentenced to less that 2 years or say fined, or gets the white collar equivalent home detention – is this a “corrupt practice”? (seems like one to me)
It’s the conviction that matters, not the the actual sentence. Any conviction for any offence, the maximum penalty for which is two years, or more than two years, is enough. Banks will not get either prison or home detention if he is convicted.
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Legal Beagle: Q&A: John Banks' judicial review, in reply to Matthew Poole,
Graeme, I think you’ve touched on it, but if a guilty verdict came down could the defence lodge an immediate notice of intent to appeal based on, say, misdirection by the judge, and have the trial court hold entering the conviction until the CA decided whether or not to hear the appeal?
They could try. I’m not sure it would work, but there is probably a way it could be done using the process of reserving a question of law.
My understanding is that a guilty verdict results in a conviction which must be entered and, having been entered, must be notified to the Speaker. Or does conviction not get entered until sentencing has been completed?
A conviction can be entered after a guilty verdict, or it can wait until sentencing. If you are considering asking for a discharge without conviction, you can ask the judge not to enter a conviction until sentencing.
If this was going to be tried, I would imagine this would be the way through it. You would reserve a question of law, and just not hold the sentencing until it was resolved.
I remain convinced however, that the law requires, if a conviction is entered, the vacation of the seat. As I note, a prison sentence would be required to stop a convicted MP running in any by-election.
Edit: Dean - I'm happy to have a bet on this in the event it arises :-)
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Legal Beagle: Q&A: John Banks' judicial review, in reply to Dean Knight,
(1) There’s wiggle-room there in the manner in which the conviction is entered.
Every time I've mentioned this recently, I have been careful to phrase this around an MP being convicted, not an MP being found guilty.
(2) There remains an interpretative question, perhaps for the Speaker, about whether “is convicted” is a snap-shot or means “is convicted” following exhausted appeals.
There does, as I don't think it has come up. I note that this Speaker's Ruling does imply an appeal might affect the result.
(3) While the LG Act has different language, it was drafted in a different era and isn’t determinative.
Amendments and re-enactments of the various provisions . The text in the section 101X of the Local Government Act 1974 (which is basically the same) was inserted in 1989. The Electoral Act is from 1993. Those are not different eras.
(4) Section 27(1) NZ Bill of Rights (natural justice, read together with s 25) may suggest an interpretation that allows the exhaustion of an appeal before removal from office.
Does that apply to prison terms as well?