Judge upholds police appeal

Press, 19 October 1977, Page 4

Judge upholds police appeal

The Magistrate had applied the incorrect test when declining to apply section 204 of the Summary Proceedings Act to correct the name of a defendant cited in an information, Mr Justice Roper has ruled in a reserved decision given in the Supreme Court. The police appealed by way of case stated against a decision of Mr N. L. Bradford, S.M., in the Christchurch Magistrate’s Court to dismiss an information against “The Christchurch Press Company” on the ground that it was not a legal entity because the word, “Ltd” had been omitted from the title. The Magistrate should have allowed the police to amend the information by adding the word, his Honour said. Mr D. J. L. Saunders appeared for the police at the hearing of the appeal and Mr P. D. Woolley for the Christchurch Press Company, Ltd. In his decision his Honour said that the police issued proceedings by way of a minor offence notice alleging the publication in a newspaper of the name of a certain firm in breach of an order of the Magistrate’s Court prohibiting such publication. The defendant named in the notice was “The Christchurch Press Company.” The notice was served on the

Christchurch Press Company, Ltd, and the company’s solicitors advised the Magistrate’s Court that the company proposed to defend the charge. A summons was issued in the name of "The Christchurch Press Company” and was served on the Christchurch Press Company, Ltd. On the date of the hearing Mr Woolley appeared for the Christchurch Press Company, Ltd, and entered a plea of not guilty. He did not challenge the form of the minor offence notice or the summons. Mr Woolley had not raised the point that his client company had been incorrectly described in both documents because the word “Ltd” had been omitted, but the Magistrate did. It appeared that the matter was discussed in chambers and the point reserved until the evidence was heard. The prosecution called three witnesses and there was cross-examination by Mr Woolley. The matter was then adjourned part heard. In the course of the evidence a detective produced a certificate of incorporation for the Christchurch Press Company, Ltd, and what was alleged to be the offending copy of “The Press.” At that point the Magistrate called for submissions in writing concerning the

i misdiscription of the comI pany and after considering I them he dismissed the information. He rejected the < police submission that | section 204 of the Summary I Proceedings Act saved the position. That section read: “No information, summons or other document and no process or proceeding shall be quashed, set aside, or held invalid by any Magistrate’s Court or by any other Court by reason only of any defect, irregularity, omission or want of form unless the Court is satisfied that there has been a miscarriage of justice.” The Magistrate had determined that “The Christchurch Press Company” was not the name of a legal person and that section 204 could not be invoked to amend the wording. The Magistrate also held that the summons had been directed to what in law was a nonentity and that there was a duty on the Court to ensure that proceedings were properly conducted and he dismissed the information. It was apparent from the Magistrate’s decision that what influenced him to reject the remedy provided by section 204 were a number of cases which established that a firm was not a legal entity and could not be charged with committing an offence.

“No-one could challenge that proposition, but it is a line of reasoning which I believe has no bearing on this case, and only tends to confuse,” said his Honour. “The prosecution did not purport nor tintend to prosecute a firm, where individuals should have been charged. It intended to prosecute a limited company and made an error in its description.” It was apparent that Mr Woolley’s client company was under no illusion as to who was being charged and was prepared to defend the matter on its merits. Further it was conceded by Mr Woolley that no prejudice had been suffered. “Carelessness in the preparation of Court documents is not to be encouraged, however I am of the opinion that in the particular circumstances this was a clear case for the application of section 204, there being no suggestion of prejudice nor any likelihood of a miscarriage of justice. “Failure to apply it has resulted in a waste of a commodity which is in rather short supply in the Courts, namely time, unnecessary inconvenience and expense to the parties, and gives some support for Mr Bumble’s aphorism,” said his Honour. No order was made as to costs.