Charities Commission v Peters DC Christchurch CRI-2011-009-9382 [2012] NZDC 489 (30 March 2012)

Last Updated: 9 January 2020

IN THE DISTRICT COURT AT CHRISTCHURCH

CRI-2011-009-009382

CHARITIES COMMISSION

Informant

v

ANDRE JOHN PETERS

Defendant

Hearing: 30 March 2012 (Heard at Aoraki House)

Appearances: D R La Hood for the Informant Defendant appears in Person

Judgment: 30 March 2012

ORAL JUDGMENT OF JUDGE B P CALLAGHAN

[1] The defendant, Andre Peters, is charged with refusing, or failing to comply, with a notice issued to him under s 52 Charities Act 2005. I have heard evidence this morning and I am now giving a decision mid-afternoon. I reserve the right to correct grammar, punctuation and setting out if the decision needs to be transcribed. I would like to have spent more time in the phraseology of the decision but given the backlog of fixtures in this Court as a result of the earthquakes I think it is important to give my decision now so the parties know what it is. I have reached a very clear conclusion.

[2] In 2010 the defendant was a fundraiser for the Disabled Children’s Trust. This Trust was initially a registered one under the Charities Act 2005 but was deregistered on 9 July 2010. The defendant, Mr Peters, was employed as a

CHARITIES COMMISSION V PETERS DC CHCH CRI-2011-009-009382 [30 March 2012]

fundraiser by Mr Williamson, a trustee of the Trust. Following the deregistration of the charity as a Trust Mr Peters continued to fundraise and he says the advertising motifs were altered to show that the Trust was no longer registered (See exhibit 5, pages 3 and 4, the part of the facsimile he sent to the Crown solicitor on 16 November 2011). I have heard evidence that Mr Williamson was convicted of some criminal offences. I am not sure of the connection between that and the deregistration of the Trust and it is not particularly relevant for the purposes of this hearing.

[3] I note that there is no prohibition on any Trust raising funds, whether it is a registered one or not. If it is registered the Charities Commission has the oversight of how it performs and the Commission has its functions set out in s 10 of the Act. Because the Commission was concerned with Mr Peters apparently fundraising for the Disabled Children’s Trust under the auspices of it still being a charitable trust it became involved in an investigation looking into this. There were complaints, apparently, from members of the community. Mr Peters explained that the Trust would covet donations at various venues around New Zealand by selling or giving to donators a pen. As I understand it he would sell a pen for, say, $20 which was, in effect, a donation. The pen would cost him 60 cents at source. He would account to the Disabled Children’s Trust for 25 percent of the amount given and the balance would go to his overheads and his income.

[4] On occasions he explained if he was located in a mall setting and the mall operators did not want him to compete, obviously with other retailers, then he was not allowed to advertise that they were selling the pens under the nomenclature of a donation but he would advertise that if anybody made a donation of a certain amount, say 10 or 20 dollars, then he would provide them with a pen. He chose to make the decision as to the amount of the donation depending on who the donator was and explained that in the case of a situation like the widow’s mite he might be more inclined to give a pen to somebody who gave a moderate donation because their means would have limited what they could give.

[5] Mr Peters appears to have made, according to what Sergeant Anders said in his evidence that Mr Peters told him, about $1000 per week after his expenses had

been deducted. Sergeant Ander was called as the first prosecution witness because he spoke to Mr Peters at Milford, Auckland on 23 November following complaints about Mr Peters fundraising. It would appear that the only breach of any statute or regulation that Sergeant Anders could see at that point was that Mr Peters was not operating with the necessary local authority permit.

[6] Section 37, Charities Act provides that a person who is not in fact a registered charity (or the Act calls it a charitable entity) cannot hold themselves out to be either a charitable entity or acting on behalf of it. The Charities Commission thought this might be the case in respect of Mr Peters. Whether in fact that was the case is not, in my view, relevant to the issue that I have to decide. Under s 51 of the Act if the Commission considers it is reasonably necessary for the purpose of carrying out its functions and exercising its powers under the Act it may ask a person to provide relevant information in terms of a notice that it can serve upon them. This is what the Commission purported to do here. Under s 56 a notice can be given by the Commission and that section provides that it will be assumed that if a person signs the notice purporting to act by direction of the Commission then that is sufficient until the contrary is proven.

[7] I note here that Mr Rowlands has signed the notice, and if I may say the additional two notices that I will come to, as the Manager of Monitoring and Investigations, not purporting to be signed by direction of the Commission. However, when considering all the evidence in this case that is not an issue as far as I am concerned. Here Mr Rowlands had the delegated authority and he has referred to exhibit 1 and no issue has, in fact, been made about this in any event and Mr Rowlands himself has given evidence to say he had that authority. So any suggestion that the notice is invalid on that basis is quite wrong.

[8] I heard evidence from Mr Rowlands, as I said, Sergeant Ander and Mr Humphries and I read the affidavit evidence from Mr Warring who was formerly employed by the Charities Commission. I allowed his evidence to be given by way of affidavit pursuant to a hearsay notice which was not objected to by the defendant and to a large extent his evidence is largely uncontentious anyway. Mr Peters gave evidence himself.

[9] What has happened here is that the Commission gave a notice dated 10 December 2010 to Mr Peters requiring him to supply the information in it by 31 January 2011. This notice was served on him on 11 December and the defendant does not dispute receipt of this and, indeed, the subsequent notices. The notices, in my view, comply with the provisions of the Act and, in particular, request, in my view, reasonable information relating to the suggestion that Mr Peters may have been holding himself out to be acting on behalf of a registered charity. Whether he was or he wasn’t is not the issue for this case. There was a response to that notice. Before 1 February 2011 the defendant provided to the Charities Commission, via a fax, a letter from the Disabled Children’s Trust terminating his position as a fundraiser. That letter is set out in Mr Warring’s affidavit as exhibit C. That is a letter written by the trustee Mr Williamson terminating Mr Peters role as a fundraiser for the Disabled Children’s Trust and that is dated 17 December 2010.

[10] Following the receipt of this letter on 1 February 2011 the Commission, via Mr Rowlands, sent a further notice advising the defendant that the supply of this letter did not satisfy the request in the original notice and it gave Mr Peters until 11 February to provide information set out in the notice of 10 December 2010. As no response was received from Mr Peters by the Commission to this, a further notice was sent on 16 February 2011 signed again by Mr Rowlands, reminding the defendant of the information it required and asking him to provide this information by 4 March. This notice and indeed the two previous notices, that is, the 1 February 2011 and 10 December 2010 notices, explained that it was an offence not to provide the information.

[11] No response was received from the defendant by 16 February. On 22 February the devastating earthquake struck Christchurch, badly damaging the defendant’s home causing him and his family to be pre-occupied with the damage leading to his family temporarily relocating to Nelson and the defendant going to Auckland to support his father who was on a dialysis regime. Mr Peters stayed in Auckland for about a month. He said he went there at the beginning of March. He helped not only his father but others.

[12] The informant, after obtaining the Crown solicitor’s consent (s 74(3)), laid an information which was sworn and filed on 28 October 2011. The defendant had not responded to any of the notices. Incidentally I read s 74 as to the Crown solicitor’s consent as a procedural step and not as a jurisdictional requirement to be proved. It appears clear it is for the advantage of the Charities Commission in laying an information to have this consent as it provides a defence to any subsequent suggestion of malicious prosecution, s 74(4).

[13] The information alleges that the defendant committed the offence between 1 February 2011 and the day of the filing of the information, 28 July 2011. This appears on the face of it to be confusing as the date of 31 January 2011 referred to in the information is the date by which the notice was to be complied with, yet the offence is alleged to have occurred at any time between 1 February 2011 and 28 July 2011. This can be rationalised. Clearly the second and third notice in fact extended the time upon which the defendant had to respond. In addition it would appear that had the defendant in fact complied with the request up until the date of laying of the information the informant would not have proceeded. I do not consider the defendant has been misled by the range of dates that the offence is alleged to have occurred. He clearly, in giving his evidence, understood what the situation was with the allegation against him.

[14] The information still charges only one offence, that is, the failure to comply with the notice and the details required in the notice of 10 December 2010 even though it was extended by the consequential two letters. The information still charges the defendant with failing to provide that information which at the very latest, on the second notice, had to be supplied by 4 March. An issue as to the defendant’s position over the earthquake has to be considered in respect of that and I will deal with that shortly. In any event I am satisfied under s 204 Summary Proceedings Act 1957 there is no miscarriage of justice.

[15] The defendant did not file any response to the notice prior to the prosecution being lodged. The defendant did, in fact, lodge with the Crown solicitor in Wellington a document purporting to comply with the notice. This was via a

facsimile of 16 November 2011. Leaving aside its late receipt this, in my view, in no way contains the information that was requested and I will turn to that shortly.

[16] The prosecution, of course, must prove the charge beyond reasonable doubt. The defendant does not have to prove or disprove anything and he by giving evidence, with the one exception I am about to mention, has no burden of proof in respect of the proving of the charge of failing or refusing to comply with the notice. However, there is a provision in the Act, in s 52, which provides that a person must not refuse or fail to comply without reasonable excuse. Under s 67(8) Summary Proceedings Act this clearly provides the defendant to prove, on the balance of probabilities, that he had a reasonable excuse.

[17] The defendant in his evidence readily admitted that he initially failed to comply largely as a result of not wanting to tell the Commission too much or, indeed, assist them. I listened carefully to his evidence. He was quite adamant that he did not wish to supply details requested because he did not want to assist the Commission. He thought they had enough information. When he did supply the information after proceedings were lodged this was, as I have already referred to, inadequate. There are no details, for example, of specifically where the funds were raised. He is asked in the original notice, and reiterated in the subsequent notices to him, to provide a list of all dates and locations at which collections were carried out. Clearly this is something, in my view, the Commission is entitled to know if it is looking into whether or not there has been a breach of the provision of the Act.

[18] The defendant’s response, albeit late, like most of his responses was woefully inadequate. He said, “Have sold pens for DCT from Timaru northwards for the period of 1 June 2010, 31 December 2010.” It is hard to read the entire wording of the facsimile because it has been cut off as I understand because of the facsimile machine but it appears to read, “We were concentrated in the greater Auckland city area with one trip to Orewa, Warkworth and Whangarei.” This does not really say very much at all.

[19] Given his own evidence that he was able for Inland Revenue purpose to have a daily takings sheet he must know where he was placed when he was seeking donations of funds. What he does in respect of the amount that he has collected

himself, he merely gives a total without any supporting evidence and he similarly does the same for his expenses, travel, pens, printing, Eftpos and accommodation. There is a provision of a statement from the Disabled Children’s Trust BNZ account which I understand from his evidence, albeit confusing, showed some of the transactions that went into that account from him, or from his collection, but not necessarily all from him.

[20] What the information was, again I stress albeit late, was a general overview with no supporting documents that one could sensibly make anything of. His conclusions as to the amounts may well be correct but how can they possibly be checked in the light of the information that was supplied. In any event, as I have noted, it was late and was not provided before these proceedings were lodged. Now he may well want to complain that he did not know when the cut-off date was going to be. Well he clearly knew as at on receipt of each of the notices that his response was required within a reasonably short period of time. He does not have to prove or disprove anything but there was no indication given to the Commission that he would like more time or that he was assessing his situation.

[21] Now in respect of the Christchurch earthquake on 22 February I immediately accept, as would anyone that had lived through it, he could be forgiven for failure to comply for a reasonable time. However, he was back in Christchurch by April and he could well have easily supplied the details within the ensuing two months or so following that. He was, in my view, in a position to do so and, indeed, in fact, he had the opportunity and as I gleaned from his evidence he had really all the information but he just did not want to give it prior to 22 February. So he has not proven to me that the February earthquake has meant that he has been unable to comply with the notice albeit in the way the proceedings have uncovered at a later time than, indeed, 16 February. I, therefore, do not accept for the period up until when he could have filed the response, say up until mid-July, that he had a reasonable excuse for not doing it. As I have said he had the details himself and, as already discussed, he did not want to assist.

[22] I find he refused to supply the details to the Commission in terms of the original notice served upon him and renewed on the two occasions that I have mentioned. His subsequent response, albeit out of time in any event, failed to

adequately address the details required and I find that in respect of this particular information the charge is proven beyond reasonable doubt.

B P Callaghan District Court Judge