Jock Anderson's Caseload: What will happen to John Banks?

John Banks at the Auckland High Court after he was found guilty of knowingly transmitting a false electoral return. Photo / Dean Purcell.

Wealthy businessman and former Epsom MP, Cabinet Minister and Mayor of Auckland, John Banks (68) is to be sentenced on August 1 - tomorrow - after being earlier found guilty of electoral dishonesty in relation to his last mayoral bid.

Mr Banks was found guilty by Justice Ed Wylie after a two week judge-alone trial in June.

Justice Wylie has to now deal with any application Mr Banks may make for a discharge without conviction and any sentencing in the event a discharge is not granted.

When coming to a decision the judge will consider a number of factors.

Paramount is his finding that Mr Banks is guilty.

In most cases a guilty finding would be automatically followed by a conviction - but not always.

A conviction can be avoided if the judge is satisfied, for example, that the effect of the conviction will far outweigh the gravity of the offending.

The judge also considers factors such as remorse, the risk of re-offending, rehabilitation and deterrence.

There are a number of recent examples of guilty folk being discharged without conviction - the case of the Maori king's son Korotangi Paki (now being appealed by the Crown) is one.

These are not always popular decisions but any offender is entitled to such consideration.

Judges make similar decisions every day as part of the normal sentencing process.

If Mr Banks makes an application for discharge without conviction, and this is highly likely, then much will be properly made of his lengthy public service.

Mr Banks' distinguished public service, coupled with success in business and leading an otherwise good life, will be considered by the judge as he weighs up how best to fairly satisfy justice in the circumstances of Mr Banks' offending.

His lawyer may suggest to the Court that Mr Banks should pay a hefty financial penalty and costs, and/or make a sizeable donation to charity, but that a conviction in this case would be a punishment too far.

The Crown will no doubt argue the nature of his offending - while of a kind rarely before the Court - is of sufficient seriousness to warrant conviction.

What will not influence Justice Wylie are bayings from a noisy anti-Banks mob to serve his head up on a platter (or from pro-Banks supporters to do the opposite) - more for who he is than what the judge found him guilty of doing.

Watch:

John Banks found guilty

Judges defend judicial snoozles

Manchester part-time judge Philip Cattan was seen to "nod-off" as an under-age complainant give evidence in a rape trial - resulting in the trial collapsing and the judge under investigation.

"Instances of judicial eye resting are not uncommon in New Zealand," a senior judicial source told CaseLoad.

"Mischief-makers unfairly blame Our Honours for having a lengthy lunch time tipple but jurors doze off all the time and no-one gives a hoot."

"Judges spend many, many hours in courtrooms listening to lawyers - much of which is akin to watching paint dry," said the source.

"It is exhausting work. Which is why the Big Blue Chambers Book offers us useful guidance on how to practice judicial snoozling without completely losing the thread of what's going on."

The source declined to say how widespread judicial snoozling is, how many judges are at it or if the courts are in the grip of an uncontrollable outbreak about which someone should do something.

Footnote: In 2001, Gloucester judge Gabriel Hutton had to apologise after falling asleep during a rape trial, which had to start again.

In 2013, Russian judge Yevgeny Makhno, from Blagoveshchensk, resigned after denying video clips on YouTube showed him playing with his mobile phone and falling asleep in court. A disciplinary panel said Judge Makhno could be re-instated after retaking some exams.

Meanwhile, a study by researchers Dr Ronald Grunstein (Sydney) and Dr Dev Banerjee (Birmingham) published in medical journal Sleep in 2007, looked at examples of judicial sleepiness among US judiciary from the Supreme Court down, the High Court in London and the International War Crimes Tribunal in The Hague.

A famous snoozler was New South Wales district court judge Ian Dodd - nicknamed Judge Nodd - who was reported for repeatedly falling asleep while listening to witnesses and legal argument in different cases over several years.

Diagnosed with obstructive sleep apnoea, Noddy J took early retirement amid a media frenzy.

Judges named and shamed but not here

On the titillating topic of wayward judges, it should be remembered that the Judicial Conduct Investigations Office (JCIO) in Britain takes a more transparent approach to complaints against judges than is done in New Zealand.

The JCIO publishes the names of judges against whom complaints have been made, as well as a disciplinary statement which tells briefly what they did and what action was taken.

For example, on July 17 the JCIO said in relation to one Jerome Campbell JP:

"Mr Jerome Campbell, a magistrate serving the Black Country Bench, was subject to an investigation following the inappropriate use of his mobile phone during a hearing, which caused the trial to be aborted. The Lord Chancellor and Mr Justice Leggatt, on behalf of the Lord Chief Justice, were of the view that Mr Campbell's action constituted misconduct and have issued him with formal advice on his future conduct."

Up to July this year the JCIO issued disciplinary statements about some 42 judges, magistrates and other judicial officers.

In New Zealand, Judicial Conduct Commissioner Sir David Gascoigne does not publicly identify any judges or give any details of complaints made against them.

Maybe it's time he was allowed to.

Seen & Heard

* In what is described as one of the legal fraternity's "most significant moves in recent years," Russell McVeagh partners Geoff Busch, Chris Bargery and David Holden jumped ship to form the Auckland office of Dunedin-based Anderson Lloyd.

Setting up shop this week "across the hall" from Russell McVeagh in Shortland Street's Vero Centre the trio also take with them several members of their Russell McVeagh team.

According to Anderson Lloyd CEO Richard Greenaway, Messrs Busch, Bargery and Holden will lead a primarily transactions-focused practice, concentrated on corporate, mergers and acquisitions, banking an finance, infrastructure and public private partnerships (PPPs).

Mr Busch says they felt it was time for a change and a fresh approach to transactions and projects.

All three lawyers are highly regarded specialists in their fields, which, according to insiders, means Anderson Lloyd can position itself as a credible alternative in Auckland to big firms such as Russell McVeagh, Simpson Grierson and Bell Gully.

Founded in 1862, Anderson Lloyd - the biggest law firm in the South Island - celebrated its 150th birthday in 2012 and also has offices in Queenstown and Christchurch.

Russell McVeagh turned 150 last year.

* Auckland lawyer Boon Hong - censured and suspended from practice for ten months - is the latest to fall foul of the New Zealand Lawyers and Conveyancers Disciplinary Tribunal.

The tribunal upheld a charge of misconduct brought by the New Zealand Law Society for a flagrant breach of a standards committee order following an earlier finding of unsatisfactory conduct.

Mr Hong was suspended for wilfully disobeying a standards committee order to attend a continuing legal education course - offending which the tribunal said needed to be marked with a firm response in order that the "institutions of professional discipline are not undermined."

Mr Hong was ordered to pay the law society $20,786 for legal costs and reimburse hearing costs.

Keeping tabs on what jurors think

On the question (raised by CaseLoad the other day) of juror satisfaction surveys - which are supposed to be done every year - there wasn't one done in 2013.

Apparently everyone was too busy, what with major changes to the courts, including changes to the district court management structure and the start of the new Criminal Procedure Act.

According to Courts Minister Chester Borrows more than 54,000 jurors were summoned to serve in 2013, with only 19 complaints received from them.

Mr Borrows says this year's survey has been carried out and his officials expect to have a report out by September.

At which point, CaseLoad expects a brief explanation of what good comes from the survey and how it benefits jurors - if at all.

Ponder This

If Transport Minister and Leader of the House Gerry Brownlee is successfully prosecuted for breaching airport security he faces being barred from entering the United States, Australia, Britain and any other country New Zealand has airport security agreements with.

Why would that not be fair?

Coming soon - Millionaire lawyers to be named

The names of lawyers and law firms who have benefited from the generous taxpayer-funded legal aid scheme - and how much they have been paid - should soon be known.

How much is paid to individual lawyers from the $100 million dollar plus legal aid fund is now made public every year by the Justice Ministry - a far cry from 15 years ago when squealing lawyers fought a futile tooth-and-nail *rse-protecting action to keep their legal aid incomes secret.