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Committee of 25’s conditional discharge

A conditional discharge against one of the island’s oldest charities has been set aside after an appeal in Supreme Court.

The Committee of 25 had been given a two-year conditional discharge for operating its Bargain Box shop while its charitable status had been revoked — something the charity said occurred because of incorrect legal advice.

However, in Supreme Court, Chief Justice Ian Kawaley ruled that the charity had been improperly bound to the charges.

The organisation lost its charitable status in July 2013 because of a failure to provide audited statements, but continued to run the Bargain Box until October 2015.

The Supreme Court heard the matter first appeared before the courts on October 20 last year when Nicola O’Leary, a member of the charity’s board of directors, was personally summoned to attend Magistrates’ Court.

While lawyer Nicole Smith, representing the Crown, argued that Dr O’Leary was not actually charged during the hearing, Dr Justice Kawaley found that the style of the information suggested otherwise.

“In its original October 1 iteration, the defendant was described as ‘Nicola O’Leary on behalf of the Committee of 25 for Handicapped Children’,” he wrote in an ex tempore judgment dated May 12.

“At some point the information was amended, on the application of Ms Smith for the Crown, and the ‘Committee of 25 for Handicapped Children’ became the defendant. But the heading seemingly included the words ‘represented by Nicola O’Leary’.”

Dr O’Leary subsequently pleaded guilty to the offence on February 12 this year and in the ensuing debate over sentence, Ms Smith argued that a fine of $2,000 would be appropriate, noting the breach had taken place over the course of more than two years.

Magistrate Archibald Warner instead issued a two-year conditional discharge.

Ms Smith and lawyer Richard Horseman, representing the charity, agreed that the magistrate was not empowered to bind the charity, and Ms Smith had sought to have the matter remitted to Magistrates’ Court to be dealt with properly.

The Chief Justice wrote that given the facts of the case, it was important to determine the gravity of the offence — specifically if the charity had been flouting the law, or if it had been acting in ignorance of the law having taken reasonable steps to ascertain what the legal position was.

In this case, he said the Crown was unable to dispute the argument that the charity had been acting under mistaken legal advice.

He wrote: “It is understandable that Mr Horseman would have been keen to obtain the most lenient outcome. And it is also understandable that Ms Smith for the Crown would have been focused on persuading the magistrate of the sentence that she considered was most appropriate in the public interest.

“But against that background it seems to me that there is very little justification for finding that the public interest requires that this charity should in fact be convicted and fined.

“If this was an entirely rogue entity, clearly it would deserve no sympathy from the Court, but all the material before this court suggests that this was as innocent a breach of the law as one can possibly imagine.”

Given all of the facts of the case, Dr Justice Kawaley set aside the conditional discharge and allowed the appeal on the point of law, but declined to remit the matter back to Magistrates’ Court.

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