R v Chtouki aka Brooks [2016] NZHC 6712 (12 May 2016)

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Hearing:	22 February to 4 March 2016
Appearances:	S Symon & T Hu for the Crown P Davey for Defendant Chtouki M Mortimer for Defendant Khan A Kashyup for Defendant Kartseva
_Judgment:	_{12 May 2016}

_{(A Schedule of verdicts returned appears at the end of
these written reasons)}

	Index
Introduction		[1]
Judge alone trial		[35]
Charge list		[36]
Discussion threads		[39]
First Category Charges 1-6:
Charge 1		[58]
Charge 2		[188]
Charge 3		[202]
Charge 4 Charge 5		[243] [267]
Charge 6		[281]

[1] At the outset Mr Yosef Aziz Chtouki is one of the parties charged. He will be referred to herein also as “Mr Joseph Brooks” as they are one and the same.

[3] On 28 November 2012, following Mr Brooks’ involvement in a number of failed companies, pursuant to s 385(3) Companies Act 1993 (“the Act”) a notice prohibiting Mr Brooks from being a director or promoter of, or being concerned in or taking part whether directly or indirectly in the management of any company for a period of four years was issued by the Deputy Registrar of Companies.

[4] In late 2013 and early 2014, following complaints in regards to Mr Brooks’ alleged role in various companies the Companies Registry’s Integrity and Enforcement Team commenced an investigation.

[5] That investigation is alleged to have revealed that Mr Brooks had been involved with several companies. Each company was alleged to have been involved in building and opening hair salons.

[6] The companies that Mr Brooks is alleged to have been involved with were: (a) ANZ Management Group Limited

[7] In relation to all of these companies it is alleged that between the times covered by a Notice of Prohibition Mr Brooks acted either as a director or manager

of these companies, either in his own name or through the use of aliases “Ricardo

[8] The Crown alleges that not only were there various aliases used by Mr Brooks, but that multiple companies were used interchangeably to run the business comprising several hair and beauty salons.

[9] It is alleged that Mr Brooks also used the same aliases on the Companies Register and also provided other false details on the Register (such as false addresses).

[10] In that regard Mr Brooks has been charged as the principal in relation to all of the false statement charges and his accountants, Mr Khan or Ms Kartseva, have been charged as a party allegedly having presented the documents to the Register at the behest of Mr Brooks.

[11] The Crown alleges that the false statements filed at Mr Brooks’ instructions were filed to assist him with management activities at a time when he was prohibited.

[12] The Crown alleges that these activities were designed to lend an air of legitimacy to Mr Brooks’ management activities.

[13] The Crown alleges that it can be inferred that Mr Brooks instructed the statements to be made and that must be the case, bearing in mind that Mr Khan and Ms Kartseva were professional accountants with no apparent stake in Mr Brooks’ business and the only benefit that they could derive from their activities is payment for their services.

[14] Counsel for Mr Brooks concedes with respect to Charges 1 and 3; i.e., ANZ Management Group Limited/Bunamagoo Pty Limited, that Mr Brooks was on occasions at least indirectly involved in the management of those companies after

[15] With respect to Charge 2, Beauty Management New Lynn Limited, again counsel for Mr Brooks concedes that he acted as a director of that company up until at least 13 September 2013.

[16] In relation to Charge 4, Hair Shop Limited, counsel for the defendant acknowledges that there was no dispute that Mr Brooks was a director over the period February 2013 until 6 September 2013.

[17] In relation to Charge 5, Mark’s Beauty Management Limited, the defence submits, apart from limited evidence, there is no evidence that he was taking part as a director or in the management of that company.

[18] In regards to Mark’s Beauty Management Limited the defence submits the company was removed from the Companies Register on 22 January 2013 and the company did not exist at the time of the alleged offending and cannot be retrospectively liable for acts done in respect of the offences whilst the company was struck off the Register.

[19] With respect to Charge 6, Positive Construction Management Limited, the defence submits that Mr Brooks, the defendant, was recorded as a director of the company in June 2013 until 3 July 2013, but he took no part in the management of the company beyond that date. The defence submitted that Mr Brooks did not act as a director of the company or held himself out to be a director of the company, nor is there any evidence of work done by him in a management capacity for the company. The Crown alleges that Mr Brooks was using an alias, that of “Ricardo Santoro” to act as a director beyond that date.

[20] In relation to charges of making false statements, Mr Brooks is charged as a principal with respect to Charge 7 only. In relation to all of the other charges, Charges 8 to 19, it is alleged that statements were made on his behalf as a consequence of instructions given to the co-offenders, Mr Khan and Ms Kartseva, as his agents to make those changes.

[21] The defence submits in relation to Charge 7; i.e., the annual return for Bunmagoo Pty Limited that given the nature of the manner in which changes can be made in company documents that the address on the annual return for the company’s director and shareholder were not false based on an automated pre-populating of the form on registration.

[22] The defence also submits there is no evidence he instructed anyone to make changes to an address for a Ms Jungwirth, or that he knew that change was being made.

[23] In the event that an address was misspelt, the defence alleges that was simply a mistake.

[24] In relation to Charges 8 through to 19 a combination of defences is submitted, including no evidence of falsity nor evidence that Mr Brooks instructed Mr Khan or Ms Kartseva to make changes on his behalf.

[25] The defence for Mr Brooks submits that no inference can be drawn that Mr Brooks knew that Mr Khan or Ms Kartseva were making changes in the ways alleged by the Crown.

[26] In essence, the defence for Mr Brooks is that the Crown have not proven beyond reasonable doubt that Mr Brooks knowingly procured Mr Khan or Ms Kartseva to make the specific changes to the directors or any of the particular changes in the addresses.

[27] Even before getting to this point, the defence submits that the Notice of Intention to consider the exercise of prohibition was not validly given to Mr Brooks, nor was the actual Notice of Prohibition itself notified in writing to him.

[28] Counsel for Mr Brooks submits that the Notice of Prohibition was never given to Mr Brooks in writing and in a manner that a registrar or deputy registrar considered appropriate.

[29] The defence submits there is no evidence that written notice was ever received by Mr Brooks until 6 March 2014, a time outside that for Charges 7 to 19. That being the case, the essential element that Mr Brooks be notified in writing of the prohibition has not been satisfied. The defence submits that the Court has to be satisfied beyond reasonable doubt that Mr Brooks was notified in writing of the prohibition. The defence say that there is no evidence of that.

[30] For Mr Khan, the defence submits to the charges that he was a party to making a false statement in a document which was false or misleading in a material particular, and in which Mr Chtouki [Brooks] and Mr Khan knew to be false or misleading, that he was an accountant with a large number of clients employing a number of accounts staff. To run his accountancy practice he delegated responsibility of some of the less onerous aspects of Companies Office business to his staff, while he focused on the financial accounting aspects.

[31] Mr Khan’s defence is that he did not submit the forms. That he did not have any knowledge of Mr Brooks’ intention to falsify information for the Company Register, and that there is no evidence direct or by inference that would enable the Court to be satisfied beyond reasonable doubt that he aided Mr Chtouki [Brooks] in making a false statement, the subject of the five charges against him.

[32] With respect to Ms Kartseva, the defence alleges with regards to the change of director and change of address forms filed by her for Mr Brooks, that she was at all times acting on instructions from Mr Brooks or Mr Khan and that changes were a mistake, as a result of inadequate training.

[33] The defence submits that in order for Ms Kartseva to be liable as a secondary party she had to know what Mr Brooks was contemplating or intending when she performed the acts that constitute the offence. The defence submitted that Ms Kartseva had no knowledge that any offence was being committed. That she had no knowledge that the instructions that she was acting upon were false and would mislead the Register and that, at all material times, she was acting on instructions given to her by others, and that she simply carried out her work in accordance with those instructions for ordinary remuneration from her employer.

[34] The defence submits that Ms Kartseva had no actual knowledge that what she was doing was incorrect, and that if anything was incorrect it followed from her adopting an incorrect method based on the mistaken belief that it was a correct method.

[36] Mr Chtouki [Brooks] appears for trial having pleaded not guilty to the following charges:

(a) Being the director of or taking part in the management of a company while subject to a prohibition from the Registrar of Companies (contrary to s 385(9) of the Companies Act 1993. Charges 1 – 6.

(b) Making a false or misleading statement in a document required by or for the purposes of the Companies Act, knowing that statement to be false or misleading (contrary to s 377(1) of the Companies Act 1993. Charges 7 – 19.

[37] Mr Khan appears for trial having pleaded not guilty to the following charges: (a) Aiding Mr Chtouki [Brooks] to make a statement in a document

required by or for the purposes of the Companies Act that was false or misleading in a material particular, and which Mr Chtouki [Brooks] and Mr Khan knew to be false or misleading (contrary to s 377(1) of the of the Companies Act and s 66(1) of the Crimes Act 19671. Charges 20-24.

[38] Ms Kartseva appears for trial having pleaded not guilty to the following charges:

(a) Aiding Mr Chtouki [Brooks] to make a statement in a document required by or for the purposes of the Companies Act that was false or misleading in a material particular, and which Mr Chtouki [Brooks] and Ms Kartseva knew to be false or misleading (contrary to s 377(1) of the Companies Act and s 66(1) of the Crimes Act. Charges 25-31.

[39] The onus of proof rests on the Crown throughout and the standard of proof required for each element is beyond reasonable doubt.

(a) Firstly, the defendant has been prohibited by the Registrar of Companies under s 385(3) of the Act from being a director or promoter of a company, or being concerned in or taking part, whether directly or indirectly, in the management of a company, for a period not exceeding 10 years after the date of the notice;

(d) The defendant has breached the terms of the prohibition by being a director or promoter of a company, or taking part in the management of the company (s 385(9)); and

(e) The act of directing, promoting or management takes place in the time period specified in the written notice (s 383(3)).

[42] Turning to the first element, whether the defendant has been prohibited by the

Registrar of Companies under s 385(3) of the Act from being a director or promoter

of a company, or being concerned in or taking part whether directly or indirectly, in the management of a company, for a period not exceeding 10 years after the date of notice.

[44] The notice of prohibition itself follows the service of a notice of intention to prohibit the defendant being given to the defendant in the first instance.

The Registrar or the FMA must not exercise the power conferred by subsection (3) unless –

(a) not less than 10 working days’ notice of the fact that the Registrar or the FMA intends to consider the exercise of it is given to the person; and

[46] When the notice of the fact that the Registrar or the FMA intends to consider the exercise of a prohibition is given to the person (s 385(5)(a) and (b)) the Registrar or the FMA considers any representations made by the person. As a response to that, the Registrar or the FMA may by notice in writing then prohibit that person from being a director or promoter of a company, or being concerned in, or taking part, whether directly or indirectly, in the management of, a company during such period not exceeding 10 years after the date of the notice as is specified in the notice (s 385(3))

(1) A notice that the Registrar is required by this Act to give to a natural person, must be given in writing and in a manner that the Registrar considers appropriate in the circumstances.

(2) Without limiting subsection (1), the Registrar may give notice in writing to a natural person by—

(b) posting it, or delivering it by courier, to that person at his or her last known address, or delivering it to a document exchange which that person is using at the time; or

(c) sending it by facsimile machine to a telephone number used by that person for transmission of documents by facsimile; or

(d) having it published in a newspaper or other publication in circulation in the area where that person lives or is believed to live.

(3) Section 392 shall apply, with such modifications as may be necessary, in respect of the giving of notices by the Registrar.

(b) is certified by the Registrar, or by a person authorised by the Registrar, as having been derived from a device or facility that records or stores information electronically or by other means—

[49] Section 392 also provides additional provisions relating to service (s 364(3)).

(a) if a document is to be served by delivery to a natural person, service must be made—

(ii) if the person refuses to accept the document, by bringing it to the attention of, and leaving it in a place accessible to, the person:

(b) a document posted or delivered to a document exchange is deemed to be received 5 working days, or any shorter period as the court may determine in a particular case, after it is posted or delivered:

(c) a document sent by facsimile machine is deemed to have been received on the working day following the day on which it was sent:

(ca) a document sent by email is deemed to have been received on the working day following the day on which it was sent:

(d) in proving service of a document by post or by delivery to a document exchange, it is sufficient to prove that—

(e) in proving service of a document by facsimile machine, it is sufficient to prove that the document was properly transmitted by facsimile machine to the person concerned:

(f) in proving service of a document by email, it is sufficient to prove that—

(2) A document is not to be deemed to have been served or sent or delivered to a person if the person proves that, through no fault on the person’s part, the document was not received within the time specified.

[51] In terms of element (d); i.e., the defendant has breached the terms of the prohibition by being a director or promoter of the company or taken part in the management of the company. The meaning of “management” (s 385(3)) has not been considered within the context of s 385 of the Act.

[53] The term was defined within the context of s 382 of the Act. In that decision

Andrews J held in relation to the interpretation of the “management” of a company:

[29] “Management” is to be given a wide interpretation, covering activities relating to the real business affairs of a company, but is not intended to prohibit a person being involved in a minor capacity. In R v Newth,¹Quilliam J (in relation to the predecessor to s 382 in the Companies Act 1955) said that the prohibition was intended to protect the commercial community, and as such was not intended to simply prevent a person acting as a director.¹The focus should be on whether the person was involved “in the real business affairs of the company”.

[30] In Tregurtha v Police,²Fisher J considered that it was a question of degree as to whether a person was involved in the real business affairs of a company. Fisher J approved of the discussion in Commissioner for Corporate Affairs (Vic) v Bracht, where Ormiston J said:

“ ... The concept of ‘management’ for present purposes comprehends activities which involve policy and decision-making, related to the business affairs of a corporation, affecting the corporation as a whole or a substantial part of the corporation, to the extent that the consequences of the formation of those policies or the making of those decisions may have some significant bearing on the financial standing of the corporation or the conduct of its affairs.

... I would see the prohibition as covering a wide range of activities relating to the management of a corporation, each requiring an involvement of some kind in the decision-making processes of that corporation. That involvement must be more than passing, and certainly not of a kind where merely clerical or administrative acts are performed. It requires activities involving some responsibility, but not necessarily of an ultimate kind whereby control is exercised. Advice given to management, participation in its decision-making processes, and execution of its decisions going beyond the mere carrying out of directions as an employee, would suffice.”

[31] In his judgment in R v Le Noel,³Judge Thorburn referred to the judgments in Newth, Tregurtha, and Bracht, and set out a non-exhaustive list of indicators that could be taken into account in deciding whether a

_{person can be described as having taken “a hand in the real
business affairs”}

By taking a broad view of the totality of evidence and acknowledging its cumulative effect, I list the following indicators whilst not exhaustive, as features, should they exist, to be taken into account, and I apply a broad value judgment and overview to the evidence rather than more restrictively focusing on individual transactions or activities:

“1. Without there being a need for the accused to be a director or office holder did he exercise any supervisory control which reflected the general policy of the company?

2. Was the accused's involvement any more than a passing involvement that would be consistent only with clerical or administrative acts expected of an employee?

3. Did the involvement of the accused include activities of responsibility and assumption of some control albeit not necessarily of an ultimate kind?

4. Did the accused give advice to management and or participate in decision-making processes?

5. Did the accused partake in the execution of or implementation of decisions made — beyond the mere carrying out of instructions as would be required of a mere employee?

6. Were the opinions of the accused given any weight in the decision- making process of management?”

[54] In Tregurtha v Police, HC Auckland, AP123/93, 15 October 1993, referred to at para 30 of Waters, involvement must be more than passing and certainly not of a kind where merely clerical or administrative acts are performed. It requires activities involving some responsibility but not necessarily of an ultimate kind where control is exercised.

(1) Every person who, with respect to a document required by or for the purposes of this Act,—

(a) makes, or authorises the making of, a statement in it that is false or misleading in a material particular knowing it to be false or misleading; or

(b) omits, or authorises the omission from it of, any matter knowing that the omission makes the document false or misleading in a material particular—

commits an offence, and is liable on conviction to the penalties set out in section 373(4).

(2) Every director or employee of a company who makes or furnishes, or authorises or permits the making or furnishing of, a statement or report that relates to the affairs of the company and that is false or misleading in a material particular, to—

(a) a director, employee, auditor, shareholder, debenture holder, or trustee for debenture holders of the company; or

(b) a liquidator, liquidation committee, or receiver or manager of property of the company; or

knowing it to be false or misleading, commits an offence, and is liable on conviction to the penalties set out in section 373(4)

(3) For the purposes of this section, a person who voted in favour of the making of a statement at a meeting is deemed to have authorised the making of the statement.

[57] The elements required to be proven with regards to offending under that section; i.e., s 377(1)(a) in this case are as follows:

(a) The defendant made or authorised a statement in a document required by or for the purposes of the Act;

(e) The defendant committed an act to aid Mr Chtouki [Brooks] in the making of that false statement; i.e., actually helping or assisting Mr Chtouki [Brooks] with what he was doing.

Element (a): The defendant has been prohibited by the Registrar of Companies from being a director or promoter of a company, or being concerned in, or taking part, whether directly or indirectly, in the management of, a company during such period not exceeding 10 years after the date of the notice as is specified in the notice (s 385(3))

[59] There was background evidence given by Ms Holyoake, a solicitor for the Business Registries and Legal Services Team for MBIE that there were difficulties in obtaining addresses and contact details for Mr Brooks.

[61] Ms Holyoake sought the assistance of a Ms Carla Flood, who at the time was the manager of the Registries Integrity and Enforcement Team to assist with the service of the notice of intention to prohibit.

[62] The evidence establishes that there was no direct service on Mr Brooks. It was determined that the notice would be served on Mr Brooks by Ms Flood contacting Mr Brooks’ then counsel, Mr Cordwell, and asking if he would accept service. Mr Cordwell agreed to accept service of the initial notice.

[63] Following Mr Cordwell’s agreement to accept the service of the initial notice, the notice was couriered to Mr Cordwell’s office. Mr Cordwell subsequently confirmed receipt and confirmed that he had passed the notice on to Mr Brooks.

[64] The defence rightly submit that Mr Cordwell has no independent recollection of the notice of intention to prohibit Mr Brooks and how he passed it on to the defendant, but in various letters and file notes of Ms Flood and Ms Holyoake in relation to communications with him he acknowledged that if he had told either one of these ladies in an email that he provided Mr Brooks with the initial notice, he would have done so.

[65] In an email chain to Ms Flood, in an email dated 21 August Mr Cordwell confirmed that he had received the notice of intention to prohibit and had passed it on to Mr Brooks.

[66] No submissions were received by the Registrar from Mr Brooks concerning the proposed intended prohibition.

[67] Section 364(1) in terms of service specifically directs that a notice required by the Act to be given to a natural person must be given in writing and in a manner that the Registrar considers appropriate in the circumstances.

[68] In this case, in recognition of the previous difficulties that Ms Holyoake was aware of in relation to contacting Mr Brooks following an attempt to contact PricewaterhouseCoopers, who had been the liquidators of three companies for Mr Brooks and the Official Assignee, and where neither party was able to provide a current address for him, Ms Holyoake considered that service in this manner was appropriate in the circumstances.

[69] While s 364(2) sets out the manner of service that the Registrar may give in writing to a natural person it is also not limiting, and in the circumstances the service by the Registrar was appropriate. I am satisfied the Crown has proven beyond reasonable doubt that the notice of intention to prohibit was given to Mr Brooks, that being a prerequisite for issuing the prohibition notice.

[70] The next part of this particular element, recognising that Mr Brooks had been served with the notice of intention to prohibit, is whether in fact he has been prohibited by the Registrar of Companies.

[71] A notice prohibiting Mr Brooks from managing companies was issued and dated 28 November 2012. That notice was made pursuant to s 385(3) of the Act and signed by a Mr Peter Barker, Deputy Registrar of Companies.

[72] The notice specifically provided for Mr Brooks not being a director or promoter of, or being concerned in or taking part, whether directly or indirectly, in the management of any company for a period of four years from the date of the notice.

[73] All of the evidence satisfies me that this element is proven beyond reasonable doubt.

Element (b): The defendant has been notified in writing of the prohibition (s 385(3))

(3) The Registrar or the FMA may, by notice in writing given to a person, prohibit that person from being a director or promoter of a company, or being concerned in, or taking part, whether directly or indirectly, in the management of, a company during such period not exceeding 10 years after the date of the notice as is specified in the notice. Every notice shall be published in the Gazette.

(1) A notice that the Registrar is required by this Act to give to a natural person, must be given in writing and in a manner that the Registrar considers appropriate in the circumstances.

(2) Without limiting subsection (1), the Registrar may give notice in writing to a natural person by—

(b) posting it, or delivering it by courier, to that person at his or her last known address, or delivering it to a document exchange which that person is using at the time; or

(c) sending it by facsimile machine to a telephone number used by that person for transmission of documents by facsimile; or

(d) having it published in a newspaper or other publication in circulation in the area where that person lives or is believed to live.

(3) Section 392 shall apply, with such modifications as may be necessary, in respect of the giving of notices by the Registrar.

(b) is certified by the Registrar, or by a person authorised by the Registrar, as having been derived from a device or facility that records or stores information electronically or by other means—

[77] Following the notice of prohibition dated 28 November 2012 prohibiting Mr Brooks from being a director of or from being concerned in or taking part in the management of any company, the Registrar then has sought to notify Mr Brooks in writing of the prohibition.

[80] In terms of proving service of the document, s 392 provides that in proving service of the document by post it is sufficient to show that the document was properly addressed, that all postal charges were paid, and that the document was posted.

[81] There is a reverse onus on Mr Brooks to show that through no fault on his part the document was not received within the time specified.

[82] Mr Brooks did not give evidence although he made a statement to Ms Flood on 6 March 2014.

[83] In that interview Mr Brooks was at pains to express the fact that he was a “contractor” and that he was self-employed and could work with anyone. He also stressed that whilst working with companies as a contractor, he had nothing to do with the companies themselves.

[85] He further conceded that a barrister working for him, a Mr Simon Judd, had explained to him that he could not be involved in the management or directorship of a company and that he had passed him “the paper”.

[86] He further said in that interview that Mr Judd had told him he “can’t be a director, that’s what he said”.

[88] In regards to the serving of this substantive notice the evidence establishes that Ms Holoyoake, the solicitor for Business, Registries and Legal Service Team at MBIE, sought for Mr Cordwell to accept service on Mr Brooks.

[90] Mr Cordwell had advised Ms Holyoake on 5 July 2013 that he had not had the opportunity to give the notice to Mr Brooks.

[91] He indicated to Ms Holyoake that he had had difficulty in contacting Mr Brooks, and that Mr Brooks had not responded to his messages for several months.

[92] Following that, on 5 July 2013 Ms Holyoake wrote to Mr Brooks to advise him of the prohibition. Accompanying that letter was the notice of prohibition and the Registrar’s Minute of Decision.

[94] These addresses were the last known addresses for the companies that had formed the subject matter determining Mr Brooks’ prohibition.

[95] The letter directed to 368 Great North Road Auckland was returned to the Registrar on 15 August 2013. The letter directed to 24 Tiroroa Avenue, Te Atatu South, Auckland was not returned.

[96] In that circumstance the Crown submits that in terms of s 364(2)(b) the service provisions for the prohibition notice have been satisfied.

[97] The defence contend in relation to this that Ms Holyoake did not comply with the methods of service under s 364(2)(b).

[98] That submission is based on the fact that these addresses were not the last known address for Mr Brooks, recognising that a search of the Companies Office website provided an address for Mark’s Beauty Management Limited that was filed with the Companies Office on 13 September 2011.

[99] The defence submits therefore that would have been the last known address for the defendant and had been used as a summons address in February 2012.

[100] What is clear here is that Ms Holyoake chose to use the last known addresses for the companies that were the subject of the prohibition notice.

[101] The defence submits in this regard that once a company is placed into liquidation then the liquidators control the company. That all of the companies that are the subject of the intention to prohibit had been struck off, and it was not possible for Mr Brooks to update those addresses.

[102] The defence concedes that Mr Brooks became aware of the prohibition notice on or about 7 August when his new counsel, Mr Judd, located it on the file that he had received from Mr Cordwell. Whilst it was briefly discussed between them, the notice remained on Mr Judd’s file. In this instance the defence submit that no notice was given in writing to Mr Brooks.

[103] In fact the defence submits that the only time Mr Brooks received any notice in writing was when he attended the interview with Mr Graham, an investigator for MBIE and Ms Flood on 6 March 2014.

[104] The defence submits in a situation where the maximum penalty for an offence under s 385 of the Act includes a sentence of imprisonment of up to five years, in that circumstance it is essential that notice meeting the statutory requirements is given to a person.

[105] The defence submits that verbal advice is not sufficient and that the onus is on the Crown to prove notice was given in writing to the defendant, and in a manner that the Registrar or a Deputy Registrar considered appropriate. Finally, the defence submits that this was never done as there is no evidence that written notice was ever received by Mr Brooks until the 6 March 2014 interview. That being the case, the defence submits that the Crown has not proved this essential element beyond reasonable doubt.

[106] As Judge Collins determined in an earlier pre-trial in regards to notification, I also determine that in the circumstances it was entirely appropriate for the Registrar to resort to giving written notice via post to addresses Mr Brooks had listed on the Register for the companies for which he was being prohibited; i.e., Beauty Management Riccarton Limited (in liquidation), Pink Doll (in liquidation), Hairstyle Management Eastgate Limited (struck off), Hairstyle Management The Palms Limited (struck off).

[107] They were the most recent addresses Mr Brooks had provided for each of the companies whose failure had resulted in the prohibition.

[108] Putting aside the issue of delegated powers which may have been relevant to issues of personal service on Mr Brooks, the Act specifically provides for other alternatives available to the Registrar with s 364(2) setting out the ability to provide notice in this instance by posting it to Mr Brooks at his last known address (s

[109] The statute therefore sets out the means by which the notice can be given over and above any means that the Registrar considers appropriate in the circumstances (s 364(1)).

[110] In that circumstance the addresses to which the notice was forwarded were the last known addresses.

[111] Ms Holyoake was entitled to serve by post at the last known addresses. The evidence establishes that the notices forwarded to 24 Tiroroa Avenue, being the last known address for Mark’s Beauty Management Limited, Hairstyle Management Eastgate Limited, and Hairstyle Management The Palms Limited, were never returned to the Ministry.

[112] Correspondence to 368 Great North Road for Pink Doll Limited was returned.

[113] In any event, I am satisfied therefore that service was effected in terms of ss

[114] I am satisfied beyond reasonable doubt that Mr Brooks has been notified in writing of the prohibition.

[115] Whilst not necessarily relevant to the determination on this point, the evidence in any event satisfies me that Mr Brooks knew of the prohibition.

[116] His statement confirms that, but it is equivocal as to whether his knowledge related to him being prohibited as a director, or more.

[117] I am also satisfied that Mr Brooks knew from Mr Judd, his counsel, that he could not act in the ways specified in s 385.

[118] I also note the evidence of Ms McAnulty. She confirmed Mr Brooks’ understanding in that regard, when she gave evidence of Mr Brooks telling her in August and October 2013 that he could not manage a company due to bankruptcy issues.

[119] Mr Brooks was not bankrupt in 2013 and I accept that in that instance therefore Mr Brooks could only be referring to the prohibition under the Insolvency Act.

[120] For reasons that will be given later in this judgment it is proven that Mr Brooks used aliases with respect to managing various companies, which is also indicative of his knowledge of prohibition.

[121] This finding is not necessarily relevant to the notice, but is in a sense confirmatory of the fact that he had been served.

Element (c): The defendant’s prohibition has been published in the New Zealand

[122] On 25 July 2013 the notice of prohibition in relation to Mr Brooks was published in the New Zealand Gazette.

Element (d): The defendant has breached the terms of the prohibition by being a director or promoter of a company, or taking part in the management of the company (s 385(9))

[124] The Crown says that the evidence establishes that Mr Brooks was a director and took part in the management of the company between 5 July 2013 and 22 June

[125] The Crown alleges Mr Brooks was a company director through an alias, Ricardo Santoro.

[126] Ms Hannif, a Technical Services advisor for the Companies Office, had her evidence read at trial. In relation to ANZ Management Group Limited her evidence was that on 5 July 2012 a Mr Ricardo Santoro was appointed as a director of that company. On 20 November 2013 there was a name change to Shamir Doutros.

[127] Both Doutros and Santoro had New Zealand addresses on the Register at times when they could not have been in New Zealand.

[128] Mr Santoro left New Zealand on 2 July 2012 and has not returned to New Zealand since that time, and the use of the name “Shamir Doutros” is a variation on the name “Shamir Boutros”.

[129] With respect to Mr Boutros, he left New Zealand on 18 April 2005 and has not returned to New Zealand since.

[130] In determining this element of the offence can I infer Mr Brooks used the aliases “Santoro”, “Doutros” and “Boutros” at the various times of the alleged offending?

[131] This inferential determination is relevant not just to Mr Brooks allegedly acting as a company director, but is also directly relevant to whether he was taking part in the management of the company and operating it as Mr Brooks, Mr Santoro, or Mr Doutros.

[132] In determining whether Mr Brooks had represented himself in these various aliases, I am satisfied that a proper inference can be drawn that Mr Brooks was the person represented to various businesses as Mr Santoro or Mr Doutros.

[133] The Crown has provided a particularly helpful schedule of some 11 pages, Schedule 1, which is appended to this Reasons for Verdicts, which overwhelmingly demonstrates the linkage by Mr Brooks to Mr Santoro and Mr Doutros.

[134] Can I draw an inference from those established facts? The linkages show the same contact details on various forms used interchangeably for Santoro, Doutros and Brookes, all provided at different times.

[135] They take various forms of linkage in the way of telephone numbers, email addresses, PO Box numbers, and actual physical addresses as set out in the schedule.

[136] There are also name changes apparent on the Companies Register from Santoro to Brooks, Boutros to Brooks, Brooks to Doutros, on the Companies Register for the various companies.

[137] There is also the consideration as to whether there are false statements filed with respect to directors’ change of names and addresses allegedly linking Santoro, Doutros, Boutros and Brooks in different ways on the Companies Register.

[138] If one adds to that to the following: Using the name “Paco Brooks”, a person purporting to be Mr Santoro in early 2014; going to Cory’s and introducing himself as “Ricardo”; the form sent to Hayden Airconditioning accepting the quote from a person purporting to be “Ricardo Paco Santoro” and the subsequent correspondence; Mr Gooch attending the Westfield site in 2013 and meeting “Ricardo”; Mr Pierard dealing with “Paco Ricardo Santoro” in October 2013 and also dealing with him in other ways at the shop at Westfield and giving evidence that Mr Santoro told him that the person purporting to be “Paco” was also Joseph Brooks.

[139] Like Mr Danby, Mr Pierard visually identified a photograph of a person that he identified as “Paco” as being a photograph of Mr Brooks.

[140] I accept that there may be issues around that identification, but it is simply another piece of the puzzle which adds up to a whole picture when pieced together.

[142] In that interview he also claimed that “Shamir Doutros” was in and out of

[143] As the evidence establishes the person Ricardo Santoro left New Zealand on

2 July 2012 and has not returned, and the person Shamir Doutros left New Zealand in 2005 and has not returned.

[145] All of this evidence overwhelmingly enables me to draw the inference that Mr Brooks used the names “Santoro”, “Boutros” and “Doutros” interchangeably with his own name, and that Mr Brooks was at the relevant times either operating under his own name or the aliases referenced.

[146] At the relevant times related to these charges 1 to 6, I have determined that

Mr Brooks was also Mr Santoro, Mr Boutros, or Mr Doutros. [147] No other conclusion is possible.

[148] This conclusion is drawn from facts reliably established. This conclusion can be safely drawn from them.

[149] There is nothing left to speculation or guesswork, and the conclusion: i.e., the inference drawn is the only logical and rational one in these circumstances.

[151] With respect to the charge as it relates to Mr Brooks being a director at the relevant time of this offence, having determined that at times he used aliases, I am sure Mr Ricardo Santoro who was appointed as a director on 5 July 2012 was Mr Brooks, and continued to hold himself out through the name Santoro as a director down to 20 November 2013.

[152] That being the case, he acted as a director whilst subject to a prohibition between 5 July 2013 and 22 June 2014.

[153] Having reached this conclusion this element is proven beyond reasonable doubt without any consideration as to his management of the business.

[154] Turning to my conclusions in relation to whether he took part in the management of ANZ Management Group Limited, I have considered the following evidence.

[155] The evidence from Ms Kopua, who was a credit controller at Argus Fire System Services Limited (“Argus”). She details her dealings with Mr Brooks. That evidence includes requesting a quote for works to be carried out at the West City Development. In his dealings with Ms Kopua he referenced himself as Joseph Brooks, Director, Hair Shop Limited.

[156] A quote was prepared and provided to Mr Brooks for fire protection installation work.

[157] A credit application form was submitted from a Mr Ricardo Paco Santoro, signed off as director of ANZ Management Group Limited, with a mobile number which was the same number that Mr Brooks had provided to Argus.

[159] The form was purportedly signed by Ricardo Santoro on 21 August 2013 and the signature on the guarantee was witnessed by a “Josef Chtouki” which the Crown submits is a variation of Mr Brooks and Mr Yosef Chtouki.

[160] When payment was not made for the ensuing debt for services provided, Ms Kopua obtained a contact in the name “Shamir Doutros” from Westfield where Argus had carried out the work for ANZ Management Group Limited.

[161] She called the number provided by Westfield and spoke to a person who she says confirmed themselves as “Shamir Doutros”.

[162] In line with the inference in regards to the various aliases being used by Mr Brooks, the involvement with Argus also clearly satisfies me to the criminal standard that Mr Brooks was involved in the management of ANZ Management Group Limited. These actions were beyond mere clerical or administrative acts and

involved taking significant responsibility for directing work to be done, and signing a credit application, and providing a personal guarantee under an alias witnessed by Mr Brooks by another name; i.e., “Josef Chtouki”.

[163] Mr Brooks in his interview admitted contacting Argus and requesting work be done.

[164] All of this is consistent with him representing himself to Argus as a person who could engage significant contractors and incur significant expense on behalf of the company. These were not the actions of someone engaged in mere clerical or administrative acts. This activity involved substantial responsibility, management.

[165] My determination that Mr Brooks was managing the company also satisfies this element of the charge; i.e., the exercise of management powers in respect of an aspect of the business of the company.

[166] In this regard concerning management there is also evidence from Cory’s Electrical Limited, a distributor of electrical products and services, in regards to work to be done for ANZ Management Group Limited. ANZ Management Group Limited is the entity set out in their credit application form.

[167] Mr Brooks’ involvement with this company was with Mr Danby, the Branch Manager of Cory’s. Like Argus, a credit application form was completed with the applicant being Mr Santoro and the contact person listed as Mr Brooks.

[168] In Section C of the accounts payable form, the person named as “Paco Brooks” was Mr Brooks. In his interview Mr Brooks acknowledged using that name.

[170] Mr Danby also indicated that the person that had introduced himself as “Ricardo Santoro”, the man purchasing electrical goods for a lighting job, also introduced himself as the Director of ANZ Management Group Limited.

[171] I refer back to my inferences determination with respect to aliases and, again, have no doubt that the person engaging the services was Mr Brooks under an alias.

[172] There is also evidence of a similar provision of services from Cowley Services Limited, Hayden Airconditioning, Fairfax Media, and Flexitime Limited where accounts were established under the entity ANZ Management Group Limited for the providing companies.

[173] There was evidence from employees of all of these companies that clearly and unequivocally generated the impression that Mr Brooks, or those other identities adopted by him, was engaged in acts of management including obtaining of quotes for services, completing quote acceptance forms or, in the case of Fairfax, signing a media schedule on behalf of the ANZ Management Group Limited.

[174] In the interview with Mr Brooks he sought to assert that he was acting as a co-ordinator, contracted as a sole trader by ANZ Management Limited.

[175] All of his actions through purchasing, approaching and liaising with various contractors, and making decisions with respect to the direction of the work to be done, and also committing the company financially, providing personal guarantees and supervising contractors on site, provides overwhelming evidence that he acted in any one of those capacities. That draws the clear conclusion that Mr Brooks was taking part in the management of ANZ Management Group Limited.

[177] The defence acknowledged that Mr Brooks was “at least indirectly involved in the management of these companies after 5 July 2013”.

Element (e): The act of directing, promoting or management takes place in the time period specified in the written notice (s 383(3)).

[178] Mr Brooks, either as “Ricardo Santoro” post the service of the notice on

director of ANZ Management Group Limited during the time period when he was prohibited by the written notice.

[180] Mr Brooks’ management of the company with Cory’s Electrical Limited, evidence shows Mr Brooks or his alias engaging from September 2013 with that company.

[181] With respect to Cowley Services Limited, Mr Brooks engaged in management from 23 September 2013.

[182] With respect to Hayden Airconditioning, Mr Brooks engaged in management either in his own name or by alias from July 2013 and into September 2013.

[183] With respect to Fairfax Media, Mr Brooks through an alias engaged with that company from 18 October 2013.

[184] With regards to Flexitime Limited where an account for ANZ Management had been created on 8 January 2013 under the name “Paco Amani”, linked by email address to Mr Brooks, payments were made from credit cards between 12 February

[185] In all these cases where Mr Brooks is found to have acted as a director of ANZ Management Limited or has taken part in the management of the company, all of the acts found to have taken place took place in the time period specified in the written notice.

[187] That being the case, I find the Crown has proved each of the elements required to support a conviction against Mr Brooks on this charge to the required standard, beyond reasonable doubt and I find Mr Brooks guilty.

[188] For the same reasons as for Charge 1, elements (a), (b) and (c) are proven for this charge as well.

[189] Mr Brooks was a director of this company from 8 March 2010 and has been the sole director of the company since that time.

[190] Ms Hannif, a Technical Services Advisor for the Companies Office, gave evidence that the company was struck of the register on 13 September 2013 and restored on 3 December 2015.

[191] Despite the restoration and the retrospective deeming of the company continuing in existence over that time (s 330(2)) of the Act, it is conceded by the defence that Mr Brooks was a director of this company at least until 13 September

2013. The defence concedes that Mr Brooks acted as a director of that company up until at least 13 September 2013.

[192] The evidence also establishes that Mr Brooks was engaged in the management of this company.

[193] The evidence establishes this, recognised by payments from the company to contractors engaged by other companies Mr Brooks was managing.

[195] There are payments from the company account to Four Square Design Limited, 20 September 2013 and 9 October 2013, for materials related to the fit out at the store at Westfield Westcity.

[196] There were also payments through the relevant time to an internet marketing service (Localist), Flexitime and Fairfax Media.

[197] Putting aside the issue of the restoration of the company, and the retrospective deeming of the company continuing in existence from 13 September

2013, without needing to specifically address the retrospective time period, there are significant actions undertaken by Mr Brooks which constitute taking part in the management of this company which satisfies the fourth element of this charge; i.e., that Mr Brooks was a director of this company and he took part in the management of the company.

[198] All of the evidence in relation to the taking part in the management of the company clearly indicates that Mr Brooks was acting in a sole capacity in relation to this company and there is no question at all that his actions went beyond those that might be considered merely clerical or administrative.

[199] The Kiwibank statements evidence transactions occurring in August 2013 from the bank account of Beauty Management New Lynn Limited.

[200] Mr Brooks’ management of the company also sits within the timeframe of the prohibition as recognised by the various payments made both before and after

[201] For this Count the Crown has proved each of the elements it must prove to the required standard of proof, and Mr Brooks is found guilty of the same.

[202] For the same reasons as for Charge 1 elements (a), (b) and (c) are proven for this charge as well.

[203] With respect to the fourth element of this charge, that is whether Mr Brooks has breached the terms of the prohibition by being a director, or taking part in the management of the company, there is significant evidence linking him to the management of the company.

[204] The annual return filed 9 January 2013 lists his designation as “manager”.

[205] There is evidence of Mr Brooks signing an insurance proposal with Aon New Zealand Limited (“Aon”) with Bunamagoo Pty Limited being listed as the insured. The proposal covered various shops with significant sums insured and substantial premiums.

[206] Subsequent to the insuring of the various retail establishments, Mr Brooks also insured various motor vehicles in the name of Bunamagoo Pty Limited.

[207] Mr McCarthy, an Account Manager for that Aon, gave evidence that Mr Brooks did not consult with anyone else before signing the proposal for the shop, nor did Mr McCarthy deal with any other party in his dealings with Bunamagoo Pty Limited.

[208] Mr McCarthy was of the impression that Mr Brooks was in a position of authority and he said:

My initial thought was that he was the boss in terms of organising this for the company.

[209] This evidence sits outside of the prohibition period but is relevant to demonstrate the inter-linking between Mr Brooks and Bunamagoo Pty Limited.

[210] Evidence was given by Mr Wolley, the Centre Manager at Westfield Westcity. As Centre Manager his responsibility was in part to oversee the fit out process of the Hair & Beauty Club premises at Westcity.

[212] Mr Wolley’s evidence in relation to this fit out was that Mr Brooks at all times presented himself as the person who was running the fit out and signing off on various documents, more particularly various forms dated 29 August 2013.

[214] In that form Mr Brooks, on behalf of the lessee, appointed Mr Singh of Four

[215] In another form “Lessee/Licensee Authorisation for Shopfitter to act as Occupier/Principal Contractor”, Mr Brooks appointed Mr Singh as the principal contractor.

[216] I accept the Crown’s submission that the forms show that Mr Brooks represents himself as having the ability to make formal acknowledgements on behalf of the company and is also making decisions on behalf of the company as to who delegates the implementation of the shop fit out.

[217] Ms Jungwirth was the former director of this company. The evidence establishes that she had involvement in relation to the fit out at a point nearing completion, where she was present and on site on a daily basis.

[218] Up until that time at the very least, Mr Brooks was managing that process.

[219] It is apparent from Mr Wolley’s evidence that Mr Brooks had a significant degree of autonomy and decision-making power with the responsibility for managing the fit out of the shop.

[220] Mr Singh, a director of a company which carried out shop fitting work (Four Square Design Limited) gave evidence of his involvement with the fit out at Westfield Westcity for Bunamagoo Pty Limited. His evidence also confirms his impressions with respect to Mr Brooks’ involvement in relation to the fit out. He identified that Mr Brooks had appointed him to be the principal contractor on the job on behalf of Bunamagoo Pty Limited. His evidence was that he worked for Mr Brooks and, like Mr Wolley, had involvement with Ms Jungwirth but only towards the end of the fit out completion.

[221] His evidence was that before Ms Jungwirth became involved towards the end of the fit out process, Mr Brooks was the only person making decisions about the contractors or money.

[222] He also gave evidence that he had signed contracts with Mr Brooks, although they were not produced.

[224] Mr Singh also gave evidence that Mr Brooks promised to pay Mr Singh’s outstanding debts in relation to this particular Westfield job from the fit out contribution in return for Mr Singh writing to Westfield, confirming that he had been paid for the fit out.

[225] This evidence points to Mr Brooks having a major influence with Westfield.

[226] There is also evidence from Mr Singh that Mr Brooks met with him at Mr Singh’s factory on 29 January 2004 and told him to tell the authorities and Westfield that he had been paid, and then Mr Singh in turn would be paid. This evidence from Mr Singh is overwhelming evidence of the fact that Mr Brooks was not involved in mere clerical or administrative acts, and that his actions involved

significant responsibility. It is clear this evidence establishes that his overseeing of the work in the manner evidenced shows the execution of decision-making going beyond what might be described as a mere carrying out of directions as an employee.

[227] Ms McAnulty, the owner of a company Red Turtle Limited, gave evidence of her involvement with Mr Brooks with regards to the fit out.

[228] Red Turtle Limited engages in spatial design specialising in hospitality and corporate premises, including designing the fit outs for the store at Westfield Westcity which we know was for Bunamagoo Pty Limited.

[229] Ms McAnulty’s evidence was that she took direction from Mr Brooks in regards to the design process and that he would make changes to her plans without any input from any other person.

[230] Her evidence was that when she signed the contract at Westcity mall for the design for the store, Mr Brooks did not take instruction from any other person before entering into the contract with her at that meeting.

[231] She did acknowledge that Mr Brooks had indicated to her that Ms Jungwirth was the end client.

[232] Her evidence was that there were occasions when Mr Brooks would drive the design change without reference back to Australia where Ms Jungwirth was located.

[233] In Mr Brooks’ interview he acknowledges supervising contractors in relation to this fit out. He acknowledges that Westfield would liaise with him regarding the tenancy works and admitted that he was in charge of the fit out, design and communication.

[234] He acknowledged presenting himself to Westfield as a representative of Bunamagoo Pty Limited, working for Bunamagoo Pty Limited. He also acknowledged that he managed the shop, and carried out instructions given by Ms Jungwirth. His evidence was he was contracted by Bunamagoo.

[235] I find all of this evidence is overwhelming evidence of Mr Brooks taking part in the management of Bunamagoo Pty Limited . He was involved at every step of the way in the fit out. There is no equivocation in my determination that all of this evidence overwhelmingly demonstrates that he took part in the management of Bunamagoo Pty Limited.

[237] Turning to the fifth element, the sign off on documents for Westfield Westcity of a development for Bunamagoo Pty Limited occurred on 29 August 2013.

[239] The work with respect to the fit out was completed some two to two and a half months after the job was commenced.

[240] Therefore all of that work occurred through the period of time specified in the written notice.

[242] This charge is proved to the required standard by the Crown. Mr Brooks is accordingly guilty in respect of it.

Acting as a director or taking part in the management of Hair Shop Limited between 5 July 2013 and 22 June 2014

[243] The determination of elements (a), (b) and (c) are the same as for Charge 1.

[244] Turning to element 4, that the defendant has breached the terms of the prohibition by being a director or taking part in the management of Hair Shop Limited.

28 February 2013 down to 6 September 2013. At that point the record shows a change from Joseph Brooks to Shamir Doutros.

[246] That change of director’s name from Mr Brooks to Mr Doutros is the subject of false statement charges that follow, more particularly charges 11 and 20.

[247] The reality is, Mr Brooks was a director at the relevant time in breach of the terms of prohibition. The defence concedes that he was a director over that period.

[248] That is sufficient to satisfy this element, but he has also engaged in taking part in the management of this company as well whilst prohibited from so doing.

[249] With respect to partaking in the management of this company, Ms Kopua received an enquiry from Mr Brooks, purporting to be the director of Hair Shop Limited, on 5 July 2013.

[250] A quote was forwarded to Hair Shop Limited for the attention of Mr Brooks.

[251] In this way there can be no doubt that Mr Brooks sought to commit the company to significant financial work that was ultimately continued by Mr Santoro on behalf of ANZ Management Group Limited.

[252] I agree with the Crown’s view that Mr Brooks was using Hair Shop Limited and ANZ Management Group Limited interchangeably with respect to the work being done at Westfield, Westcity.

[253] There is evidence from Fairfax Media employees, more particularly Mr Gordon and Ms Pettit, with regards to Mr Brooks pursuing advertising with them for the North City Mall in Porirua.

[254] A credit application containing a personal guarantee signed by Mr Brooks and the application representing him as director was completed in the name of Hair Shop Limited and was dated 16 May 2013.

[255] Advertisements followed this approval of credit and ran through to a period of around 30 September 2013.

[256] Over that time Mr Brooks dealt with Mr Gordon in regards to the advertising and Mr Gordon’s impression was that Mr Brooks represented the business and led him to believe that it was his business.

[258] Mr Brooks represented the Porirua business as his and he signed a Debt Repayment Plan, again by so doing, representing that the Porirua business, Hair Shop Limited was his or under his control.

[260] Through the relevant period of the advertising account in 2013, Mr Brooks was the only customer contact.

[261] In his statement Mr Brooks acknowledged that he managed the Porirua store for Hair Shop Limited at some stage between 28 February 2013 and 6 September

[262] I accept the Crown’s submission that he has minimised his involvement. I determine on the evidence that he was carrying out management tasks for Hair Shop Limited which were more than minor.

[263] The activities he was engaged in for the company were more than merely clerical or administrative and involved substantial responsibility.

[264] That being the case, and in the absence of any evidence that would indicate he was carrying out direction as an employee, I have found that this element is proven either based on Mr Brooks’ acting as director, or taking part in the management of the company in breach of the terms of prohibition.

[265] In relation to the fifth element, the evidence proves that the directing and management takes place in the time period specified in the written notice.

[266] For this charge the Crown has proved each of the elements it must prove to the required standard of proof and Mr Brooks is guilty of the same.

[268] In regards to this element; i.e., the defendant has breached the terms of the prohibition by being a director or taking part in the management of the company. The evidence shows that on 13 September 2011 Mr Brooks became the sole director for Mark’s Beauty Management Limited. That company was struck off on 22

(2) A company that is restored to the New Zealand register shall be deemed to have continued in existence as if it had not been removed from the register.

[270] The effect of the restoration of the company to the Register on 3 December

The removal of a company from the New Zealand register does not affect the liability of any former director or shareholder of the company or any other person in respect of any act or omission that took place before the company was removed from the register and that liability continues and may be enforced as if the company had not been removed from the register.

[272] That provision relates specifically to the liability of a former director or shareholder that took place before the company was removed from the Register.

[273] It is clear from that provision that liability for acts or omissions pre-removal continue on restoration.

[274] The Crown alleges that Mr Brooks has been a director of this company since its incorporation until the present day and the effect of restoration renders him liable under s 385 because he is deemed to have been a director through the period covered by the terms of the prohibition.

[275] Putting the issue of directorship to one side for a moment, looking at the evidence that Mr Brooks has breached the terms of the prohibition by taking part in the management of the company, the Flexitime database evidence given by Ms McCorkindale shows that Mark’s Beauty Management Limited had been a Flexitime customer since June 2012 and that company was still paying Flexitime until 14 April 2014.

[276] The evidence establishes that on 4 March 2014 through Mr Brooks’ credit card there was an attempt to pay the Flexitime account. This was declined.

[277] Beyond this there is no evidence that the payroll account was being used or that the company had employees. Apart from this there is no evidence that Mr Brooks took part in the management of that company. There is no evidence that satisfies me beyond reasonable doubt that he took part in the management of this company.

[278] Section 26(1) New Zealand Bill of Rights Act 1990 provides no-one shall be liable to conviction of any offence on account of any act or omission which did not constitute an offence by such person under the law of New Zealand at the time it occurred.

[279] That provision clearly determines that Mr Brooks can have no criminal liability as a director at the relevant time when Mark’s Beauty Management Limited was deregistered.

[280] Accordingly, I determine that this element is not proved and Mr Brooks is found not guilty on this charge.

Acting as a director or taking part in the management of Positive Construction

[282] On 10 June 2013 the Register shows that the director for Positive Construction Management Limited was changed from Ricardo Santoro to Joseph Brooks.

2000 change of director the address changed from 86 Newlands Road, Newlands, Auckland 1077 to 86 Newlands Road, Newlands, Wellington 0626, which was an address recorded on the 10 June 2013 director change from Santoro to Brooks.

[287] On 17 January 2014 an annual return was submitted to the Companies Office stating that the registered address for service and the office address were both Joseph Brooks at 86 Newlands Road, Newlands, Auckland 1077.

[288] The defence submits that the evidence does not establish that Mr Brooks was a director or took part in the management of Positive Construction Management Limited beyond 3 July 2013.

[289] The defence submits that the evidence confirms that Mr Santoro was a director of Positive Construction Management Limited when it was incorporated on

14 May 2012, and that Mr Khan provided the Companies Office with a signed consent to become a shareholder and director of that company, along with a copy of Mr Santoro’s New Zealand driver's licence.

[290] The defence maintains that with the director change on 10 June there was nothing to be read into the fact that mobile numbers were not changed and that they were simply a matter overlooked by Ms Kartseva when she registered the change of director’s name.

[291] Further the defence submits that the January annual return reflecting the registered address for service and the office address being Joseph Brooks at

86 Newlands Road, Newlands, Auckland 1077 is not evidence that he held himself out to be a director of this company and there is no evidence of him working for the company.

[292] The defence says that the Crown has not proven that Mr Brooks was Mr Santoro, and that being the case as at the date of prohibition; i.e., 5 July 2013, Mr Brooks was not a director of the company.

[293] As for the previous determination with respect to inferring Mr Brooks was Mr Santoro, and Mr Doutros/Boutros, whilst the original incorporation may well have involved a real person, Mr Ricardo Santoro, who left New Zealand on 2 July

2012, I unreservedly determine that the 10 June 2013 change was effected by Mr Brooks and the change from Mr Brooks to Mr Santoro on 3 July, less than a month later, was also a change effected by Mr Brooks.

[295] In relation to whether Mr Brooks took part in the management of this company, in Mr Brooks’s interview he stated that he contracted for the company as a sole trader.

[296] He said that his work was as a co-ordinator with people and admits working in this manner around December 2013 and January 2014.

[297] As for the other companies that he took part in the management of I can infer that the use of the word “co-ordinating” involves similar management duties as undertaken for the other companies.

[298] I also accept the Crown’s submission that Mr Brooks was the person who effected the change on the Companies Register on 10 June 2013 and 3 July 2013. I accept the Crown’s submission that this constitutes evidence of management. Being able to control what is placed on the Register goes beyond clerical or administrative acts expected of a low level employee of a company.

[300] The fifth element as to whether Mr Brooks was acting as a director or managing within the time period specified in the written notice, given my conclusion in relation to the 3 July name change, clearly Mr Brooks engaged in directing and managing in the time period specified in the written notice; i.e., from 5 July 2013.

[301] I find all elements are proven to the required standard with respect to this charge. Mr Brooks is found guilty of the same.

That Mr Brooks on 9 January 2013 made a statement in a document required by or for the purposes of the Companies Act 1993 that was false or misleading in a material particular and which he knew to be false or misleading.

(1) the defendant made a statement in a document required by or for the purposes of the Act.

[303] On 9 January 2013 an annual return for Bunamagoo Pty Limited was filed with the Companies Office.

[304] The presenter is Mr Joseph Brooks and the address on the annual return for

[305] The director’s address at the bottom of the return shows Unit 14, 7 Queen Street, Auckland City, 1010, New Zealand being the address of the director Ms Romana Jungwirth.

[306] At page 2 of the document the shareholder’s address is shown as 318/22, Neilson Street, Auckland City, 101, New Zealand.

[307] The Crown acknowledges now that the 16 Collocott Street, Mordialloc, Melbourne 3195 is not a falsity relying on the evidence of Mr Fenn the Business Support Analyst at MBIE. It is acknowledged that the Melbourne address would pre-populate and that in this instance the Crown concedes there is no evidence that this was advertant.

[308] The Crown alleges a different story in relation to the address for the director, Ms Jungwirth, and also the address supplied as a shareholder.

[309] The evidence establishes that the address Unit 14, 7 Queen Street, Auckland

[310] In his interview he acknowledged that Ms Jungwirth did not live at the address but that it was Ms Jungwirth’s shop address.

He said in relation to the insertion of the address that he was simply totally mistaken.

[313] I have serious concerns about Mr Brooks’ credibility and the inference drawn in relation to Charges 1 to 6 is equally relevant with respect to his credibility in regards to this charge.

[314] Evidence from Mr Fenn was that when entering an address a drop-down box appears stating:

[315] The Crown asserts that prompt would have put him on notice that a residential address was required as opposed to the address of a business, but that in any event the form is clear as to its requirements.

[316] Turning to the Neilson Street address allocated for Ms Jungwirth as a shareholder. There is no such address as 318/22, Neilson Street, Auckland City,

1010, New Zealand. The evidence given in the trial clearly establishes that, but to give Mr Brooks the benefit of the doubt it may simply be a mis-spelling of “Nelson Street”, an address used by Mr Brooks. That is an address that Mr Brooks resided at for a period of time.

[317] Mr Fenn’s demonstration of filling out these forms clearly demonstrate that when an address is entered onto the Register the NZ Post address fields appear,

[318] The Crown then says that despite that, Mr Brooks must have physically entered “Neilson Street, Auckland City”, ignoring the NZ Post prompt. The Crown says that being the case, Mr Brooks should have been alerted to the fact that this was not a real address and knew that was the case when he completed the form.

[319] The Crown says that as a matter of inference this was not Ms Jungwirth’s personal address, nor was the residential address for Ms Jungwirth the Queen Street address. The Crown says this was a deliberate course of action undertaken by Mr Brooks. The Crown says that the statements in the document were false and misleading and the material particulars with respect to the addresses and that Mr Brooks knew that the statement was false or misleading.

[321] I find that the address Unit 14/7 Queen Street, despite it appearing on a previous document as an address for Ms Jungwirth, was not a residential address and, given my credibility findings with respect to Mr Brooks, I determine that the address was a false residential address and in that respect the statement was misleading in that material particular.

[322] I have also determined that the shareholder’s address being that of Ms Jungwirth at 318/22 Neilson Street was also false to that extent, and also misleading in a material particular.

[323] Having made adverse credibility findings with respect to Mr Brooks, I have determined that he knew the statement was false or misleading in those material particulars.

[324] Accordingly, the elements of this charge are all proven to the required standard and Mr Brooks is guilty of this charge.

[325] These charges all relate to Mr Brooks allegedly making a statement in a document required by or for the purposes of the Act which was false or misleading in a material particular, and which Mr Brooks knew to be false or misleading.

[326] The particulars allege that the forms were submitted through an agent, either

(1) Every person who, with respect to a document required by or for the purposes of this Act –

(a) makes, or authorises the making of, a statement in it that is false or misleading in a material particular knowing it to be false or misleading; or

[328] After the case had closed and I had heard counsel’s closing submissions I sent a Minute to counsel asking to see them on Monday morning the 7^thof March 2016.

[329] The Minute was forwarded to them on 4 March 2016. The Minute read as follows:

31. The charges themselves are confined to the making of a statement in a document (see charge list and the charges themselves). Then having briefly considered that evidence I am considering amending the charges 8 to 31 of my own motion to reflect the actuality of the offence allegedly committed. In this case I am considering amending the charges to making or authorising the making of a statement etc. I would be interested to hear counsel’s views. A judicial conference is convened for Monday at 10 o’clock.

[330] Section 377(1)(a) is quite specific in terms of the options available to the charging authority and to how the charge is framed.

[331] The evidence alleges that Mr Brooks authorised the making of a statement, hence the notion of agency raised in the particulars for Mr Khan and Ms Kartseva.

(1) A charge (including any of the particulars required to be specified in a charging document under section 16(2) may be amended by the court at any stage in a proceeding before the delivery of the verdict or decision of the court.

(2) The amendment may be made on the court’s own motion or on the application of the prosecutor or the defendant.

[333] The indication given by me was made on the basis that the amendment can be made by the Court of its own motion before the delivery of the verdict or decision of the Court.

[334] Considerations under s 133 Criminal Procedure Act are likely to be similar to considerations under the Crimes Act (Deliu v National Standards Committee [2014] NZHC 2739 at 35). That includes:

Taking into account the interests of all parties, the public interest and the defendant’s rights to a fair and speedy trial ...;

[335] In Deliu the Court said the fact that an amendment may make the charge easier to prove does not necessarily make the amendment prejudicial to the defendant (para [72]).

[336] Also in Deliu at para [37] the Court held that where an application to amend an indictment involves amending to a less serious charge it is difficult to accept that an amendment would not be in the interests of justice.

[337] Prejudice to a defendant is an important consideration and interests of justice are required to be taken into account.

[338] In R v Martin, CA 214/00 23-11-00, the Court of Appeal held that prejudice to an accused is the crucial consideration, if the defendant has prepared a defence on one basis and has had to recast it to meet new charges, this is likely to be determinative.

[339] In this case any prejudice to the defence cannot be cured by an adjournment, recognising that the case has now closed.

[340] The Crown submits that there has been no prejudice to Mr Brooks and that his defence has always been that he did not instruct anyone to make these changes. The Crown also says that the particulars assert the agency, and accordingly the case has been argued in that manner and no prejudice has been sustained.

[341] Mr Davey, for Mr Brooks, submitted that the charges were framed to making charges using Mr Khan and Ms Kartseva as his agents. Mr Davey submitted that authorising the making is a separate offence and that if the charges were amended it was difficult to see how differently the defence might have been cast had that been the charge.

[342] He submitted that post the event it is difficult to say whether the defence would have been cast differently or not.

[343] Mr Davey submitted that amendments ordinarily are technical amendments to ensure that charges conformed with the proof. He submitted here that this is a different charge and that the defendant is entitled to prepare on the basis of the charge laid.

[344] He submitted that if the amendment is made it then becomes a separate offence, and that any defence to the charge would require a consideration of what the word “authorises” means, and whether it broadened the liability for Mr Brooks.

[345] He submitted that clearly there is no ability at this point to determine that and he says that there is a real possibility that the construction of that might well have affected how he cross-examined witnesses. He submitted that to substitute a charge at this late stage is not just contrary to the notions of a fair trial, but is also in breach of the Bill of Rights Act. He says that, against the fact that the defence has been cast on the basis of the charges as framed.

[346] He submitted that the Crown case would be broadened in the event of the amendment which would result in the goal posts being drawn an awful lot wider than a slight shifting.

[347] Ms Mortimer for Mr Khan also opposed any change. Ms Mortimer was also appearing on instructions for Mr Kashyup who had appeared at trial for Ms Kartseva.

[348] Ms Mortimer’s submission was that the change proposed greatly changed Mr Khan’s position. She submitted that the change and considerations of the defence would have required a further consideration as to the giving or calling of evidence and that opportunity is now missed, and the change is greatly prejudicial to Mr Khan.

[349] Ms Mortimer submits that the amendment is prejudicial to Mr Khan’s rights to a fair trial and that the changes signalled are of substance, not of a minor nature.

[350] Finally she submitted that the opportunity to call evidence has now been missed and that may have been a matter of real substance for Mr Khan.

[351] Ms Mortimer for Ms Kartseva, on instructions from Ms Kashup, submits a concurrence with the submissions that she has made on behalf of Mr Khan.

[352] The Crown could not offer any assistance as to why the charges had been laid in that form and why the simpler course had not been followed.

[354] Further the defence submits that the Crown has had two years to consider these charges and whether an amendment needed to be made and that should have been addressed in preparation for the trial.

[355] Mr Davey in his closing submissions was clearly struggling with the notion of how a principal offender can commit offences through an “innocent” agent. At para 65 of his closing submission he says:

However, it is alleged in this particular case that the co-defendants were not acting as innocent agents but they also committed the offences. Apart from charge 7, it is alleged that they were the ones who actually entered the details onto the Companies website and therefore they must be considered the ones who actually made the statements on the website. It is therefore submitted that apart from Charge 7, as a matter of law the defendant, that is Mr Chtouki, cannot be liable as a principal.

Accordingly the defendant’s liability would have to be considered as a party to the alleged offences, which would then require proof that he knew the essential matters giving rise to the commission of an offence by the principal and that the defendant intentionally assisted the principal to commit the offences. In this case, the Crown alleges that the false statements were filed on the defendant’s instructions, which effectively alleges that he knowingly procured them to commit these offences.

The distinction is important because the Crown would need to prove beyond reasonable doubt the defendant instructed his co-defendants to make particular statements on the Companies Office website knowing that they intended to make those particular false or misleading statements.

[358] Having given the matter serious consideration, and recognising rights to fair trial and significant prejudice to the defence in the event of the amendment, I exercise my discretion to not amend the charges.

[359] To recast the charge at this late point, it is acknowledged, would seriously prejudice the defence and I accept that had those been the initial charges the defence may have called or given evidence.

[361] That being the case, I have determined that there is no evidence that Mr Chtouki [Brooks] made the statements that were filed with the Companies Office, the subject of these charges, and that the alleged actions of the two parties, Mr Khan and Ms Kartseva, constituted the making in this case.

[362] Of course, had the charges been framed to cover both making, or authorising the making of a statement, then this would not have been an issue.

[363] Accordingly, having determined the matter in this way, there is no evidence of Mr Chtouki [Brooks] making the statements and in the absence of the amendment as I had initially proposed, that essential element of the charge is not proven.

[364] Accordingly, the defendants on all charges 8 through to 31 are found not guilty.

Count 1:	ANZ Management Group Limited	Guilty
Count 2:	Beauty Management New Lynn Limited	Guilty
Charge 3:	Bunamagoo Pty Limited	Guilty
Charge 4:	Hair Shop Limited	Guilty
Charge 5:	Mark’s Beauty Management Limited	Not Guilty
Charge 6:	Positive Construction Management Limited.	Guilty
Charge 7:	9 January 2013	Guilty
Charge 8:	10 June 2013	Not Guilty
Charge 9:	3 July 2013	Not Guilty
Charge 10:	10 June 2013	Not Guilty
Charge 11:	13 September 2011	Not Guilty
Charge 12:	28 February 2013	Not Guilty
Charge 13:	6 September 2013	Not Guilty
Charge 14:	20 November 2013	Not Guilty
Charge 15:	17 January 2014	Not Guilty
Charge 16:	20 November 2013	Not Guilty
Charge 17:	21 February 2011	Not Guilty
Charge 18:	4 July 2011	Not Guilty
Charge 19:	18 August 2011	Not Guilty

Charge 20:	13 September 2011	Not Guilty
Charge 21:	28 February 2013	Not Guilty
Charge 22:	21 February 2011	Not Guilty
Charge 23:	4 July 2011	Not Guilty
Charge 24:	18 August 2011	Not Guilty

Charge 25:	10 June 2013	Not Guilty
Charge 26:	3 July 2013	Not Guilty
Charge 27:	10 June 2013	Not Guilty
Charge 28:	6 September 2013	Not Guilty
Charge 29:	20 November 2013	Not Guilty
Charge 30:	17 January 2014	Not Guilty
Charge 31:	20 November 2013	Not Guilty

High Court of New Zealand Decisions

R v Chtouki aka Brooks [2016] NZHC 6712 (12 May 2016)