The Police investigation into allegations of electoral fraud arising from the debacle commonly known as the Kim Dotcom Disaster found that the defendant had transmitted an election return false in a material particular (the subject donations were not anonymous, and Banks knew they were not) and had sufficient evidence to charge him summarily under Section 134(2) of the Local Electoral Act. However they were statutorily barred from doing so under the provisions of the Summary Proceedings Act that required an Information to be filed within six months of the alleged offence.
The Police made sure that their 'investigation' found that there was insufficient evidence that the defendant knew that the donations were not anonymous, and then claimed that they were unable to charge him under Section 134(1) of the Act, as well as delaying the investigation beyond the statutory period according to Section 134(2). For these reasons no public prosecution was commenced by the Police, and it was left to Wellington businessman Graham McCready to instigate a private prosecution instead - this is the state of democracy in New Zealand - very sad indeed.
Judge Mill has now referred the matter to the Solicitor General to prosecute, at the request of the informant.
One witness who is likely to be called is Kim Dotcom, who has publicly said "there is no question in my mind that John Banks knew that I had donated $50,000 to his 2010 mayoral campaign."
The Police investigation found that Mr Banks had filed a false election return because the donations were not anonymous, but claimed that although local electoral laws were broken they didn't have enough evidence to prosecute.
The Police also found that there was insufficient evidence to prove that Mr Banks knew that the donations were not anonymous . Mr Banks has always insisted he has ''nothing to fear, nothing to hide'' over the donations scandal, despite Banks asking Police not to publicly release his statement on the Kim Dotcom donations and opposing publication of the entire file.
Earlier this month at the Wellington District Court, Judge I G Mill found that there was sufficient evidence to establish a prima facie case against the defendant, he said "access to the Courts for the purposes of private prosecutions is an important safeguard against the abuses of the executive's prosecutorial discretion ."
The private prosecution was begun by retired Wellington accountant Graham McCready, who said "now the evidential barrier has been overcome and the Court has ordered Mr Banks to appear, its up to the Solicitor General to consider the overwhelming public interest in taking this case to court".
The District Court Memorandum served on the Solicitor General on 29 April 2013, with the decision of Judge Mill: