Informations defective

Press, 18 December 1986, Page 4

Informations defective

Nelson reporter

Informations, on which fines totalling $37,340 were imposed on two Nelson company directors, have been found to be defective by Judge Seeman, after a rehearing in the District Court at Nelson last week.

He dismissed eight charges of “failing to deliver” returns of income for the years 1984 and 1985 against Leslie Harold Dimock and Neville David Dimock (four charges each). In March, when he convicted them on these charges, he imposed fines of $lO a day on a continuing offence basis, amounting to $37,340 ($18,670 each). In his reserved judgment, the Judge held that the informations were “patently defective.” The company secretary, George Mark Truman, who was convicted in March on four similar charges and fined $18,670, was also successful upon rehearing. He was discharged without conviction under Section 19 of the Criminal Justice Act.

The judge upheld the convictions against the companies — each of which in March was fined $9940 (Dimock, Ltd) and $8730 (Ivan Imports) respectively — but reduced the fines to $3353 (Dimock) and $3231 (Ivan Imports). The total fines imposed

on companies, directors and secretary in March were $74,680. These have been reduced to $6584. At the rehearings, the Registrar of Companies was represented by Mr D. J. Maze, the directors and two companies by Mr A. G. Sherriff (Wellington) and Truman by Mr P. H. Cook (Wellington). When the charges were first heard in March, the directors, the companies and the company secretary were not represented and did not make an appearance in court. Evidence given by way of formal proof was that no communications regarding the returns had been received by the district Registrar of Companies. The Judge’s attention was directed to a penal clause of a maximum fine of $lOO for each overdue day for a continuing offence. The Judge based his fines on $lO a day. In his judgment, the Judge said that at a rehearing a “completely novel” submission was raised regarding the form of information — that in the case of the two directors, the informations failed to disclose an offence prescribed by law.

The directors were charged, personally, with “.,. failing to deliver ... a completed and signed annual return,” he said. However, Section 130 of the act required that “every company ... to

make a return” and Section 132 required “each annual return ... shall be completed, signed by both a director or secretary of the company or any chartered accountant ...

and delivered to the registrar by the company ...” “Thus, the obligation is upon the directors and secretary or a solicitor or accountant to 'complete and sign’ and upon the company ‘to deliver’,” he said.

“The informations must be read according to their ordinary meaning, and as they allege a failure of the directors to ‘deliver’ they,are patently defective,” he said. There was no obligation on the directors to deliver the returns.

As regards penalty on the companies, he held that the first period of default was one in which the problem could reasonably have been rectified, and he reduced the penalty to $1 a day. The second period was more seriously aggravated and he assessed this at $lO a day.

He had received a full account of matters that should be considered in respect of Mr Truman. He had suffered professionally, and there had been extensive publicity when the convictions were entered and the consequences, for him personally, might have seemed out of all proportion to the offences.