OPEN LETTER / REQUEST TO THE DIRECTOR OF THE SERIOUS FRAUD OFFICE, ADAM FEELEY:
FOR THE SAME CRIMINAL CHARGES TO BE FILED AGAINST DONALD THOMAS BRASH AND JOHN ARCHIBALD BANKS AS WERE AGAINST THE FORMER FELLOW DIRECTOR OF HULJICH WEALTH MANAGEMENT PETER KARL CHRISTOPHER HULJICH:
14 November 2011
Adam Feeley, Director of the NZ Serious Fraud Office (SFO)
Dear Mr Feeley,
I am deeply concerned to have to request the assistance of the NZ Serious Fraud Office, in order to have the principle of ‘ONE LAW FOR ALL’ equally applied to fellow former Directors of Huljich Wealth Management (NZ) Ltd, Dr Don Brash and John Banks.
The reason why I am requesting the assistance of the NZ Serious Fraud Office, is because, in my considered opinion, the CEO of the Finance Markets Authority, Sean Hughes, has failed to ‘do his job’.
In my considered opinion, the CEO of the Finance Markets Authority, Sean Hughes has NOT ensured the application of the same law equally and consistently to ALL three former Directors of Huljich Wealth Management (NZ) Ltd, Dr Don Brash, John Banks and Peter Huljich, ALL of whom equally signed, for example, the Huljich Kiwisaver Scheme ‘Registered Prospectus’, dated 18 September 2009, which contained ‘untrue’ unit price performance graphs.
This is the latest correspondence which I have received from , the CEO of the Finance Markets Authority, Sean Hughes, on this matter, in an email dated 13 November 2011:
“Dear Ms Bright
Thank you for your letter, which was handed in to my Auckland office on 8 November 2011.
I have reviewed your latest correspondence carefully, noting that it does not raise any new or significantly different issues to those raised by you on 27 September 2011.
FMA’s position is unchanged from that expressed in my email to you on 28 September 2011. I am satisfied that the position of both Mr Banks and Dr Brash was carefully considered by the Securities Commission and that competent advice was received in relation to the entities or persons against whom charges ought to be brought. Unless you have new information or evidence to bring to light which was not previously considered by the Securities Commission, FMA does not consider you have any basis on which to suggest it should bring proceedings against either Mr Banks or Dr Brash in relation to Huljich Wealth Management.
Yours faithfully
Sean Hughes
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Sean Hughes | Chief Executive | Financial Markets Authority
T: + 64 4 472 9830 | E: HYPERLINK “mailto:sean.hughes@fma.govt.nz” \t “_blank” sean.hughes@fma.govt.nz
Level 8, Unisys House, 56 The Terrace, Wellington, New Zealand
Level 5, Ernst & Young Building, 52-70 Galway Street, Britomart, Auckland, New Zealand
PO Box 1179, Wellington 6140, New Zealand
HYPERLINK “https://www.fma.govt.nz” \t “_blank” www.fma.govt.nz
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I hereby formally request, that in order for ‘justice to be done and be seen to be done’, and for the principle of ‘equality before the law’ to be preserved in practice, for you to please exercise ‘due diligence’ and take all necessary steps to ensure that the same charges that were laid by the Securities Commission against Huljich Wealth Management Director, Peter Karl Christopher Huljich, are equally laid against former fellow Directors Donald Thomas Brash and John Archibald Banks.
For your information, when I asked why charges had not been laid against former fellow Directors of Huljich Wealth Management (NZ ) Limited, Donald Brash and John Archibald Banks, the CEO of the Finance Markets Authority, Sean Hughes, replied in an email dated 28 September 2011:
“Dear Ms Bright,
I refer to your inquiry yesterday regarding the position of Mr John Banks and Mr Donald Brash as former directors of Huljich Wealth Management.
I understand that when this matter was initially brought to the Securities Commission’s attention, the Commission sought legal advice on whether an offence had been committed, by whom, and what charges if any should be laid.
On 10 November 2010, the following charges were laid against Huljich Wealth Management and its director Mr Peter Huljich:
2 charges under s 58, Securities Act 1978, for the distribution of a misleading prospectuses dated 22 August 2008 and 18 September 2009;
6 charges under s 59, Securities Act 1978, for the distribution of misleading
investment statements.
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The charges relate principally to unit price performance graphs contained in the Huljich KiwiSaver Scheme prospectuses and investment statements that portrayed the Scheme as having significantly outperformed other KiwiSaver Schemes. However, the Commission alleged that prospectuses and investment statements failed to disclose that the performance of the Scheme had been materially inflated by a series of related party payments, made at the direction of Mr Peter Huljich.
I further understand there was insufficient evidence available to the Commission to prove to the requisite criminal standard that either Mr Banks or Dr Brash was involved in these related party payments.
I am satisfied that the position of both Mr Banks and Dr Brash was carefully considered by the Securities Commission and that competent advice was received in relation to the entities against whom charges ought to be brought.
Thank you for your interest in this matter.
Yours faithfully
Sean Hughes”
I note that, for example, the Huljich Kiwisaver Scheme ‘Registered Prospectus’, dated 18 September 2009, (pg1 – APPENDIX “A”) which contained the ‘untrue’ unit price performance graphs (pg 5 – APPENDIX “B”, was signed by all three Directors (pg 42 – APPENDIX “C”)
I also note that s. 58 (3) of the Securities Act 1978, is, in my considered opinion, very clear regarding the criminal liability for ‘misstatement’ in ‘advertisement or registered prospectus’, in that EVERY person who signed the prospectus, commits an offence:
HYPERLINK “https://www.legislation.govt.nz/act/public/1978/0103/latest/DLM29406.html?search=ts_act_Securities+Act+1978_resel&p=1#DLM29406” https://www.legislation.govt.nz/act/public/1978/0103/latest/DLM29406.html?search=ts_act_Securities+Act+1978_resel&p=1#DLM29406
58 Criminal liability for misstatement in advertisement or registered prospectus
(3) Subject to subsection (4) of this section, where a registered prospectus that includes an untrue statement is distributed, every person who signed the prospectus, or on whose behalf the registered prospectus was signed for the purposes of HYPERLINK “https://www.legislation.govt.nz/act/public/1978/0103/latest/link.aspx?search=ts_act_Securities+Act+1978_resel&p=1&id=DLM28827” \l “DLM28827” section 41(1)(b) of this Act, commits an offence.
(4) No person shall be convicted of an offence under subsection (3) of this section if the person proves either that the statement was immaterial or that he or she had reasonable grounds to believe, and did, up to the time of the distribution of the prospectus, believe that the statement was true.
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(5) Every person who commits an offence against this section is liable—
(a) on conviction on indictment to—
(i) imprisonment for a term not exceeding 5 years; or
(ii) a fine not exceeding $300,000 and, if the offence is a continuing one, to a further fine not exceeding $10,000 for every day or part of a day during which the offence is continued; or
(b) on summary conviction to—
(i) imprisonment for a term not exceeding 3 months; or
(ii) a fine not exceeding $300,000 and, if the offence is a continuing one, to a further fine not exceeding $10,000 for every day or part of a day during which the offence is continued.
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So – why were Donald Thomas Brash and John Archibald Banks, as fellow Directors of Huljich Wealth Management (NZ) Limited, who signed the same Huljich Kiwisaver Scheme ‘Registered Prospectus’, dated 18 September 2009 as Peter Karl Christopher Huljich, not equally charged, particularly given that it was in their supposedly astute business acumen, that the investing public were led to believe that they could have confidence?
Were Donald Thomas Brash, former Leader of the National Party and John Archibald Banks, former National Government Minister (of Police and Local Government), effectively protected from prosecution because of their political connections at the highest levels?
Because, quite frankly, in my considered opinion, that’s how it appears, particularly now that the CEO of the Finance Markets Authority, Sean Hughes, has confirmed that:
“ (the) FMA does not consider you have any basis on which to suggest it should bring proceedings against either Mr Banks or Dr Brash in relation to Huljich Wealth Management.”
I look forward to your confirmation, in writing, within 7 days, that the same charges that were laid against Peter Karl Christopher Huljich by the former Securities Commission will be laid against Donald Thomas Brash and John Archibald Banks, by the Serious Fraud Office.
I have checked today, and can confirm that the Finance Markets Authority has all the former Securities Commission documents which were used to enforce the Securities Act 1978 provisions against ONE of the Huljich Wealth Management Directors – Peter Huljich.
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All I’m asking for, in the first instance, is that the same legal action is equally taken against Donald Thomas Brash and John Archibald Banks.
The required ‘homework’ has obviously already been done, by the Securities Commission.
In my considered opinion, there is significant and growing public interest in this matter, both nationally and internationally.
Surely – there will not be much work required by the Serious Fraud Office to promptly lay the same charges against Donald Thomas Brash and John Archibald Banks?
‘ONE LAW FOR ALL’?
Is ‘justice’ against ‘white collar crime’ going to be done and be seen to be done?
Or not?
Secondly, I would like the SFO to formally investigate why the CEO of the Finance Markets Authority, Sean Hughes has chosen NOT to equally apply the same ‘law’ to has NOT ensured the application of the same law equally and consistently to ALL three former Directors of Huljich Wealth Management (NZ) Ltd, Dr Don Brash, John Banks and Peter Huljich. Or is this a matter for the NZ Police?
In my considered opinion, the failure of the CEO of the Finance Markets Authority, Sean Hughes to NOT to equally apply the same ‘law’ to has NOT ensured the application of the same law equally and consistently to ALL three former Directors of Huljich Wealth Management (NZ) Ltd, Dr Don Brash, John Banks and Peter Huljich, is a arguably a form of ‘corrupt practice’.
I understand that the CEO of the Finance Markets Authority, Sean Hughes was appointed by the Finance Markets Authority Establishment Board, who were effectively National Party ‘appointees’, ‘hand-picked’ by the National Government Minister of Commerce (and Justice) Simon Power.
Is this why the CEO of the Finance Markets Authority, Sean Hughes, has been less than vigorous, as it were, in ensuring that the same law is equally applied to the former Leader of the National Party – Don Brash, and the former National Government Minister of Police and Local Government – John Banks?
Yours sincerely,
Penny Bright
Independent Candidate for Epsom.
Campaigning against ‘white collar’ crime, corruption (and its root cause – privatisation), and ‘corporate welfare’.
Attendee: Australian Public Sector Anti-Corruption Conference 2009
Attendee: Transparency International’s 14th International Anti-Corruption Conference 2010
Ph (09) 846 9825 Mob 021 211 4 127 HYPERLINK “mailto:waterpressure@gmail.com” waterpressure@gmail.com
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