Chtouki v The Queen
[2017] NZCA 393
•6 September 2017 at 2.15 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA175/2017 [2017] NZCA 393 |
| BETWEEN | YOSEF AZIZ CHTOUKI |
| AND | THE QUEEN |
| Hearing: | 30 August 2017 |
Court: | Harrison, Duffy & Williams JJ |
Counsel: | P J Davey for Applicant |
Judgment: | 6 September 2017 at 2.15 pm |
JUDGMENT OF THE COURT
The application for leave to appeal is declined.
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REASONS OF THE COURT
(Given by Duffy J)
Introduction
Yosef Chtouki was convicted in the District Court following trial before Judge Fraser sitting without a jury on five charges of managing companies whilst prohibited from doing so and one charge of making a false statement.[1] His appeal against those convictions to the High Court was unsuccessful.[2] He now seeks leave to bring a second appeal to this Court.
[1]R v Chtouki [2016] NZDC 6712 [DC judgment]. At the time he was convicted, Mr Chtouki was also known as Joseph Brooks, which is how he was referred to by Judge Fraser.
[2]Chtouki v Ministry of Business, Innovation and Employment [2017] NZHC 374 [HC judgment].
The grant of leave depends upon Mr Chtouki satisfying us that either his appeal involves a matter of general or public importance or a miscarriage of justice has occurred or may occur if the appeal is not heard.[3]
[3]Criminal Procedure Act 2011, s 237(2).
All statutory references in this judgment are to the Companies Act 1993.
Written notice
The offence of managing companies whilst prohibited from doing so is the final step in a statutory process designed to exclude persons with a history of involvement in company failures from any future management.[4] Earlier in this process the object of the Registrar of Companies’ attention, usually a director, is given written notice that he or she is to be prohibited from involvement in the management of a company.[5] Failure to comply with the prohibition constitutes the offence.[6]
[4]Companies Act 1993, s 385(1).
[5]Section 385(3).
[6]Sections 385(9) and 373(4)(i).
Judge Fraser was satisfied that Mr Chtouki had continuing involvement in the management of companies of which he had been a director after he had been prohibited from doing so. There is no doubt that Mr Chtouki was so involved. He managed a company in the prohibition period from August 2013 to March 2014. However, he contends that written notice of prohibition was not properly given to him, and therefore he was wrongly convicted.[7] Alternatively he contends that the manner in which he was given notice raises legal questions of general or public importance which ought to be considered further by this Court.
[7]The statutory requirements on the Registrar of Companies for giving written notice of prohibition are set out at s 364.
In fact Mr Chtouki was notified of the prohibition in more than one way.
First, Companies Office records confirm that in January 2013 written notice of prohibition had been given to Mr Chtouki’s then legal counsel Lester Cordwell.[8] Mr Cordwell was unable to bring the notice to Mr Chtouki’s attention, but the notice was placed on counsel’s file. By August 2013 the file had been transferred to another legal counsel, Simon Judd. Mr Choutki conceded at trial that Mr Judd brought the notice given originally to Mr Cordwell to his attention at that time.[9]
[8]At the relevant time Mr Cordwell was representing Mr Chtouki on insolvency charges before the District Court. The previous year he had accepted service of another Companies Office document for Mr Chtouki.
[9]DC judgment, above n 1, at [102].
Secondly, the written notice was sent by post in July 2013 to the addresses recorded for Mr Chtouki in the Companies Register as a director of Beauty Management Riccarton Ltd, Pink Doll Ltd, Hairstyle Management Eastgate Ltd and Hairstyle Management the Palms Ltd, which were the failed companies behind the decision to issue the notice of prohibition. At the relevant time these companies were either in liquidation or struck off and Mr Chtouki had ceased being a director approximately three years earlier.
Judge Fraser found written notice of prohibition was given to Mr Cordwell,[10] and that subsequently Mr Chtouki learned of the existence of this notice from Mr Judd.[11] The Judge also found the notice of prohibition was posted to Mr Chtouki’s last known address in compliance with s 364(2).[12]
[10]See [88]–[91].
[11]At [102].
[12]At [79].
The High Court agreed with Judge Fraser regarding service on Mr Chtouki by post.[13] Whata J did not make conclusive findings on the alternative question of whether the earlier service through verbal communication by Mr Judd to Mr Cordwell satisfied the requirements of s 364.[14]
[13]HC judgment, above n 2, at [40].
[14]At [27(b)] and [40].
Accordingly, we are faced with an argument by Mr Davey that, despite his knowledge of the prohibition, Mr Chtouki was improperly served, and for that reason alone convictions on the relevant charges cannot be sustained. We reject this argument. We are satisfied the convictions are safe and that nothing Mr Davey has advanced meets the requirements for a second appeal.
We accept that there may have been some errors in the way the notice of prohibition was sent to Mr Chtouki. However, the errors on which Mr Chtouki relies required a factual assessment specific to the circumstances of this case, which is not the purpose of a second appeal.[15] They do not involve any questions of general or public importance. Nor is this a case of miscarriage of justice. The proposed appeal hinges on no more than a technicality which is irrelevant to the result.
False statement
[15]McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764 at [36].
As for the offence of making a false statement, the issues involved here are also specific to the facts of this appeal.[16] Section 12(2)(c) requires the full name and residential address of every shareholder of the proposed company to be recorded. Mr Chtouki chose to use the Companies Office online procedures for the registration of Bunamagoo Pty Ltd,[17] including providing shareholder information. He offered a number of explanations for why he did not provide the required address for the shareholder, whose information he was registering. Those explanations were not accepted by Judge Fraser,[18] and he was entitled to take this view of Mr Chtouki’s evidence. Whata J upheld those findings.[19] There is no matter of general or public importance or risk of a miscarriage of justice here.
Result
[16]Section 377 makes it an offence to make a false statement relevant to a document required for the purposes of the Act or any statement or report that relates to the affairs of the company.
[17]The company name was misspelt in the High Court judgment as Bungamogoo Pty Ltd.
[18]See DC judgment, above n 1, at [302]–[324].
[19]HC judgment, above n 2, at [21]–[23] and [41].
Accordingly, we are satisfied that Mr Choutki’s application for leave to appeal should be declined.
Solicitors:
Crown Law Office, Wellington for Respondent
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