STAMP DUTIES

Evening Post, Volume CIX, Issue 120, 25 May 1925, Page 9

STAMP DUTIES

A K.C. AND ALLEGED EVASION

MAGISTRATE RESERVES

DECISION.

(XI TELEGRAPH.—PRESS ASSOCIATION.)

CHRISTCHUUCH, 23rd May

At tho close of the evidence to-day in connection with the charge against Frederick Wilding, K.C., of "being concerned in or about the preparation of a memorandum of transfer dated 13th August, 1923, with intent to defraud His Majesty, did omit fully to set forth all the facts and circumstances affecting the amount of the ad valorem duty with which such instrument is chargeable," Mr. Myers, K.C., who appeared for the defence, addressed the Magistrate on the legal aspect of the case. He said that it was necessary to determine Wilding's position under the Stamp Act, section 36. An outside solicitor would be outside of. the section, as he would not be a person employed or concerned in the preparation of the instrument. Wilding's position was for all practical purposes the same as that of an independent solicitor outside of the Act. Counsel, in Wilding's position in his office, was in the position of outside counsel. Ho ' was a member of a firm, one of whose staff took his opinion, but he was not concerned or employed in or about the preparation of the instrument, merely because his advice was asked.

The Magistrate said that it would be strange if a solicitor was not concerned in tho work of his office and in what his clerk did.

Mr. Myers said that that was not his point. Wilding did not prepare the ammunition. He merely was asked to advise. It was not done even by his office. He advised JDougall and Co. how the thing should be done. The responsibility for the preparation of the transfer rested with Messrs. Dougall. Whatever Grainger might have known, his knowledge was quite a different thing from Wilding's knowledge. Wilding had confidence in Grainger. That being so, when Grainger went to him and gave- a statement of facts, Wilding accepted the facts and gave an opinion on them. An opinion that turned out afterwards to be wrong did not connote a fraud. An opinion that was held to be a negligently incorrect opinion did not connote an intention to defraud. A judgment wa3 only the opinion of a Judge. The Magistrate: "Fortunately." Mr. Myers asked why should a stricter test be applied to the opinion of a barrister than to the judgment of a, Judge? An intent to defraud should not be found against a barrister giving opinions except under the most cogent and conclusive evidence. He submitted that there was no justification for that in the present case. There was no knowledge on the part of Wilding that any part of the consideration was going to the Armings. Whether or not Wilding's opinion was right was not a question for the Court in these proceedings. What the Court was asked to determine was the honesty of the opinion. What had happened in Wilding and Acland's office might have happened in any leading office in New Zealand.. ■

Mr. Macassey, who appeared for the Crown, said that an outside solicitor could be charged as an aider and abettor in an offence under tho Act if he gave an opinion for the express purpose of defrauding the Government under the "Act Wilding was a King's Counsel, but he was also a solicitor and a member of the firm. He did not practise purely as a barrister, but carried on the ordinary, business of solicitor. • . *

The legal position, said Mr. Macassey, was'-perfectly clear. Bowrous sold to Stevens, and Stevens sold to Armings. Bowrons approved of these contracts, and they had never been rescinded right down to the time Campbell purchased. They had the fact that Bowrous were always ready to give title to Armings. Stevens was advised to exchange his property. He did so. It was a sale. There was no room for doubt about that. position. There was no doubt at all, " proceeded Mr. Macasscj% that there must be a fraudulent mind in this matter. He was not going so far as to say that it was a criminal intent. The question was : Was this a scheme to defraud the Department ?

The Magistrate: "In other words, was it a scheme to obviate the payment of penal duty?" Mr. Macassey : "Yes, that is the real issue in this case. No trouble seems to have arisen until the question of this penal duty was raised "by Arming; and I contend that this scheme was evolved to get over this difficulty. I put it to you that there can be no question about it — this was done for the purpose of avoiding the stamp duty. That is clearly proved by the way the documents were framed."

The Magistrate intimated "that he would give a written judgment next week.