Advertisement leads to prosecutions

Press, 25 January 1986, Page 4

Advertisement leads to prosecutions

Private prosecutions over the publication in the two Christchurch daily newspapers of advertisements promoting the sale of “Trim Milk” came before the District Court yesterday. The prosecutions were challenged by counsel for the defendants who claimed that the informations (charges) before the Court did not disclose an offence. They also sought costs against the person who brough the prosecutions, Paul Robert Harper Maling, retired. Mr Maling said yesterday in submissions in support of the charges that his principal allegation was that the product “claims to be milk when it is not.” The Christchurch Press Company, Ltd, was charged that on December 5 and 19 in breach of section 11 of the Food Act, 1981, it published in “The Press” newspaper an advertisement to promote the sale of Trim Milk. Michael Pope an advertising manager, was similarly charged with publishing an advertisement for this product in "The Press” on November 28. The company and Mr Pope were represented by Mr I. J. Brooks. Roger Norton an advertising manager, was charged with two counts of committing a breach of section 11 (1), of the Food Act, 1981, by publishing in the “Star” newspaper on December 12 and 19 an advertisement promoting the sale of Trim Milk. He was represented by Mr T. M. Abbott. After hearing submissions by counsel and by Mr Maling, Judge Paterson reserved his decision to a date to be fixed. Mr Brooks submitted that the District Court had no jurisdiction to hear the informations against “The Press” and Mr Pope, on the ground that they did not disclose an offence. He said the three summonses were defective in that they did not specify the alleged breach, for a defendant to know what he was being charged with. The defendants were thus entitled to refuse to plead to the informations. Mr Brooks submitted that the Judge did not have the jurisdiction to amend the three informations, and that they should

be dismissed. He also sought costs. Mr Mating produced the original advertisement which he said caused him to telephone Mr Pope and explain why he objected to it — “principally because it claimed to be milk.” He said his view was that it was in direct breach of the Food Regulations. Mr Pope did not wish to discuss the matter further. Mr Maling said the advertisement was full of breaches of the Food Regulations. He had charged the defendants with one offence only. He specified what he regarded as a breach in the advertising of the product and said there were many other things in the advertisement he could treat in a similar way but he did not think it necessary just now. He said that what Mr Brooks had submitted about the defendants not being aware of the substance of the charge was not true. To a question from the Judge, Mr Maling said he considered the advertisement was in breach by claiming the product was milk, and that other parts of section 11 also applied with statements or omissions illegally made. “Despite my warning, ‘The Press’ continued to print further ones,” Mr Maling said. He also referred to other sections which defined milk. Mr Brooks said Mr Maling had referred to a number of other sections and regulations which were not immediately apparent in the sum-

moneses. They could be related, but as the three informations stood they were defective. The Judge said a defendant had to be fairly and fully informed by the wording of a charge. He then reserved his decision. He also reserved his decision on the charges against Mr Norton, after hearing submissions from Mr Abbott. Counsel said he adopted the submissions made by Mr Brooks, saying the points made applied exactly in Mr Norton’s case. Mr Maling said he had telephoned Mr Norton and told him his objection and warned that he could be prosecuted. A little while later the advertisement was repeated. Mr Abbott, said in seeking dismissal of the charges, and costs, that no offence had been specified. Mr Maling had chosen to lay the charges in the manner he had, without taking proper advice, and he must bear the consequences of them.