Blick v R
[2012] NZCA 373
•20 August 2012
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA26/2001 [2012] NZCA 373 |
| BETWEEN ROGER LINDSAY BLICK |
| AND THE QUEEN |
| Court: Ellen France, Randerson and Harrison JJ |
| Counsel: R Moodie for Applicant |
| Judgment: 20 August 2012 at 10 am (On the papers) |
JUDGMENT OF THE COURT
The application for an order recalling this Court’s judgment delivered in R v Blick CA 26/2001, 4 September 2001 is dismissed.
REASONS OF THE COURT
(Given by Harrison J)
Introduction
Roger Blick was found guilty following a trial in November 2000 before Judge Harding and a jury in the District Court at New Plymouth on charges of stealing computer equipment and documents belonging to his employer, LANSNZ Ltd, and wilfully damaging a Siemens Programmable Logic Controller (the PLC) and laptop computer by deleting data. On 24 November 2000 he was convicted and was later sentenced to a term of periodic detention and ordered to pay a fine and reparation.[1]
[1] R v Blick DC New Plymouth DCT2/00, 29 January 2001.
On 4 September 2001 this Court dismissed Mr Blick’s appeal against his conviction.[2] His appeal against sentence was, however, partially successful.
[2] R v Blick CA26/01, 4 September 2001.
On 19 October 2007 Mr Blick applied to the Governor-General to exercise his prerogative of mercy under s 406 of the Crimes Act 1961. He advises that his application was unsuccessful but has not provided details or copies of relevant documents.
In reliance on this Court’s inherent power, Mr Blick applies for orders recalling its earlier decision and quashing his conviction. He says that course is required in the interests of justice because a fundamental error in procedure has occurred which must be corrected and a recall is his only available remedy. His notice of application raises many grounds. Essentially he relies on what he submits is the discovery of new evidence relevant to his conviction.[3]
Facts
[3]We have determined the application on the papers after receiving written submissions from both counsel. Mr Moodie advised that Mr Blick would prefer that his counsel was present to answer any questions from the Court. However, like counsel, we were satisfied that all the relevant material was before us.
The facts giving rise to the charges are set out in considerable detail in this Court’s 2001 decision. It is unnecessary to repeat them here. For these purposes, only a summary is required.
In September 1999 LANSNZ, which was based in Stratford, was engaged to carry out Y2K compliance exercises relating to water treatment plants in Taranaki. Larry Northwood was the Managing Director. His wife, Maree Brown, worked on a computerised display unit (CITECT).
Mr Blick is a qualified electrical engineer. LANSNZ employed him specifically to design and install a new computer programme for the PLC. Mr Blick was responsible for bench testing the PLC programme prior to its interface with CITECT before the entire system was installed and commissioned. He was assisted by William Quickenden. LANSNZ was working to a tight contractual deadline, given that all the work had to be completed before the end of the millennium on 31 December 1999.
On Friday, 17 September 1999 Mr Blick completed a bench test of either part or all of the new PLC programme. He switched off both the internal battery and the mains power. On his own admission, he took this step for the purpose of erasing the computer programme which had been under test. Contemporaneously he deleted a copy of that programme from his laptop computer which had been used to modify the programme in the PLC. He also had possession of a floppy disk containing an earlier version of the PLC programme which could be used as a backup. Unlike the hard copy, it did not contain more recent modifications.
On Saturday 18 September Mr Blick made a booking under a false name to travel by ferry between Wellington and Picton on the following Monday, 20 September. Later in the day he booked return travel for 3 October. Then he made a different booking in his own name for the same journey on Sunday, 19 September. He said that he made these arrangements because he had a week’s leave and intended to stay at his parent’s holiday home at Rimu Bay in the Marlborough Sounds.
Mr Northwood denied at trial that Mr Blick had either sought leave for the week commencing 20 September or that it would have been granted. When Mr Blick did not arrive for work on that Monday morning, 20 September, Mr Northwood contacted the police because of his concerns over Mr Blick’s welfare. His concerns were compounded when he learned the PLC programme had been erased and the computers and documents could not be found.
Later in the evening on 20 September Mr Blick phoned Mr Quickenden from Christchurch but said he was in Auckland. He advised that he was considering the option of alternative employment, and that he could be leaving LANSNZ soon. Mr Quickenden was aware that Mr Blick had been upset over various employment issues.
Mr Blick stayed at his parent’s house in Christchurch that evening, 20 September. He spent the next night at a motel in Christchurch, booked under a false name with a fictitious Dunedin address. On the Crown case, Mr Blick used a false name to conceal his whereabouts in the period immediately after the time when LANSNZ could be expected to have discovered that he was missing.
On Tuesday, 21 September, Mr Blick left the desktop computer with his sister in Christchurch. He drove north, taking with him the laptop and floppy disk. It was accepted before this Court that the modified hardcopy of the PLC was left with the desktop computer. He said he went tramping by himself from 22 to 24 September.
LANSNZ was most concerned about Mr Blick’s actions. The company forecast adverse financial implications if Mr Blick did not return all the items he had taken. There was a risk of the company defaulting on its contractual obligations, possible financial failure and staff losing employment.
By Wednesday, 22 September, Mr Blick would have become aware that Mr Northwood was trying to contact him. Over the following weekend, 25 and 26 September, or the next Monday morning, Mr Blick buried the laptop computer and a briefcase containing among other things the floppy disk in two separate locations in the bush. They were some distance from his parent’s holiday home. His explanation was that he was worried that a Mr Lowe, a debt collector employed by LANSNZ to track him down, might use “stand over tactics against members of my family”.
On Monday, 27 September, the police executed a search warrant at the holiday home of Mr Blick’s parents at Rimu Bay but found nothing. Mr Blick was then arrested. When interviewed at the Blenheim Police Station, Mr Blick asserted that LANSNZ owed him money for overtime and reimbursement of expenses. He implied that differences would be resolved if he was paid. Mr Blick displayed considerable antipathy towards Mr Northwood. He also lied to the police, as he later admitted, when denying any involvement with the missing property.
The desktop computer and documents were located in Christchurch. However, it was not until 4 October that Mr Blick revealed the whereabouts of the laptop. He assisted the police to find the burial area. In the interim he had been held in custody. Fortunately, LANSNZ was able to engage the services of a technical consultant who found and recovered the PLC computer programme from the hard drive on the laptop computer. The company was able to complete its contractual obligations on time.
Appeal
Mr Blick was represented at trial by Simon Shamy. However, on appeal to this Court in 2001 he engaged new counsel, Andrew Speed. Mr Speed advanced Mr Blick’s appeal against conviction on the grounds that (a) the Judge had misdirected the jury about the legal elements of the charges; (b) the Judge had failed in summing up to properly put the defence case; (c) trial counsel had failed to follow instructions to call certain defence witnesses and arrange production of exhibits; (d) trial counsel had failed to put the defence case to Crown witnesses; and (e) trial counsel had failed to challenge the admissibility of portions of Mr Blick’s video interview.
In its 2001 judgment this Court summarised the competing cases at trial as follows:
[21] The Crown’s case at trial was that Mr Blick had acted as he did in order to pressure his employer into paying him for overtime and expenses, but with the intention of financially sabotaging LANSNZ, if Mr Northwood did not play his “game”; that he was not prepared to return the computers belonging to LANSNZ unless that happened (which constitutes theft – see R v Hare (1910) 29 NZLR 641) and that he had caused damage to the computers by maliciously erasing or deleting the PLC programme.
[22] It was Mr Blick’s defence, which the jury plainly rejected, that he went to the South Island on leave from the company by arrangement with Mr Northwood, said to have been agreed to on Friday 9 September and confirmed on 16 September, and that he had taken the computers with him only in order to do work on the PLC programme during his holiday. He had not intended to cause the company any harm. The burial of the laptop, his remarks when interviewed and his refusal for a time to reveal its whereabouts were said to be an unfortunate reaction to the way Mr Northwood and Mr Lowe then acted towards him. He said that the erasure of the programme from the PLC and its deletion from the laptop were done because they were redundant and contained elements which had to be removed (simulation code, dummy disabling bits and memory forcing status bits). He said it was his normal practice to proceed in this way and that it was not an act intended to cause damage to LANSNZ.
The Court carefully considered and dismissed all grounds of appeal. We do not need to refer to the reasoning for these purposes. But what is apparent from its 2001 judgment is the Court’s acceptance of the strength of the Crown case and the apparent weakness of the defence. Its evaluation is summarised in these passages:
[36] The Crown case must have appeared to trial counsel to be a strong one, particularly in view of the following factors:
·The coincidence between Mr Blick’s departure with the computers and the erasures of the programme.
·Mr Northwood’s assertion that he had not granted leave, supported by the evidence of three other people from LANSNZ and an officer of the Council.
·The use of a false name for a travel booking and for accommodation, and the storage of documentation in the name of Gardenboek.
·The burial of the laptop and the floppy disk and the refusal for more than a week to reveal their whereabouts to the police.
·The antipathy towards Mr Northwood evinced by Mr Blick in his conversation with Mr Quickenden and in the video interview.
[37] Although of course the burden of proof lay on the Crown, Mr Blick had a great deal to explain away in order to raise a reasonable doubt. If the PLC and Citect were believed by Mr Northwood to be ready for interfacing, it was highly unlikely that he would have been granted any leave. Mr Blick said the programme was not ready, but acceptance of his assertion depended very much on the credibility of the rest of his story, in respect of which there were obvious difficulties. Curiously, there was no evidence given about the state of the programme when it was recovered from the hard drive of the laptop and although Mr Blick has thought it appropriate to make many allegations against his trial counsel, he has not suggested that that matter should have been explored. He relies instead upon the hard copy, saying that it represented the position at the time of erasure. Again, that was a matter which appears to have been peculiarly within his own knowledge.
Later the Court said this:
[47] In the context of this trial, getting Mr Cools to confirm that erasure might possibly have been a valid procedure and that the hard copy version of the programme showed that it was not yet ready for the interfacing procedure, was not going to be enough to overcome the strong Crown case. Everything would depend on Mr Blick’s credibility as a witness. As we have said, he had a great deal to explain away in order to raise a reasonable doubt. On the face of it, he appeared to have acted with animus against Mr Northwood, as the jury would have seen in the video interview (which the members of the Court have viewed). From a reading of the transcript of his evidence it is apparent (and confirmed by trial counsel) that Mr Blick would not have made a favourable impression on the jury (nor did he do so on us). He was in many respects simply not a credible witness as, for instance, when he was trying to explain away the use of the false name, the burial of the computer and the fact that personnel at LANSNZ with whom he was working had been expecting him at work on the Monday morning. It is unlikely that the evidence of Mr Cools would have bolstered Mr Blick’s credibility in the way that is now being suggested on his behalf. We consider that the decision not to call Mr Cools was an entirely understandable tactical decision which cannot be said to have given rise to any miscarriage of justice.
Recall application
Mr Blick raises a number of related grounds in support of his application to recall this Court’s 2001 judgment. All emanate from a proposition that new evidence is available which was not led at trial or referred to on appeal. This evidence is said to show that evidence given by Mr Northwood and Ms Brown at trial was fraudulent. It is also said to be decisive to Mr Blick’s defence.
Mr Blick relies on an affidavit from Andrew Batchelor, an electrical engineer, sworn on 29 October 2008. Mr Batchelor was engaged by LANSNZ on 28 September 1999, about 10 days after Mr Blick left the firm, to programme the PLC. In carrying out this work, Mr Batchelor says, that Mr Northwood provided him with a number of disks containing the programme; that by using these disks he was able to do all necessary to complete the PLC programme within the next five days including programming and scaling analogue inputs and outputs; and that the version of the programme provided by LANSNZ included the latest version which Mr Blick had bench tested.
Mr Moodie submits that Mr Batchelor’s affidavit shows that: (a) the analogue sides of the PLC and CITECT programmes were not sufficiently ready for interfacing when Mr Blick left LANSNZ; and (b) Mr Northwood and Ms Brown falsely asserted at trial that Mr Blick had erased all the PLC programmes, leaving LANSNZ with no electronic copies, and taking with him every electronic copy from the LANSNZ server.
Decision
In our judgment Mr Blick’s application must fail on a number of alternative grounds.
Jurisdiction
First, Mr Blick has not satisfied the high jurisdictional threshold necessary to justify recalling this Court’s earlier judgment. The relevant principles are found in this Court’s decision in R v Smith as follows:[4]
[36] ... The Court has inherent power to revisit its decisions in exceptional circumstances when required by the interests of justice. Such power is part of the implied powers necessary for the Court to “maintain its character as a court of justice”. Recourse to the power to reopen must not undermine the general principle of finality. It is available only where a substantial miscarriage of justice would result if fundamental error in procedure is not corrected and where there is no alternative effective remedy reasonably available. Without such response, public confidence in the administration of justice would be undermined.
[4] R v Smith [2003] 3 NZLR 617 (CA).
This statement in Smith followed the Court’s review of the leading authorities in other jurisdictions.[5] Three factors assume relevance to Mr Blick’s application. One is that the Court’s power to reopen derives from an implicit power to suppress abuses of its process and control its own practice where a party through no fault of its own has been subjected to an unfair procedure. The second factor is that the circumstances necessary to justify a recall must be exceptional. The third factor is that the power is strictly circumscribed and does not allow a party a general right to reopen an appeal.
[5] At [28]–[35].
In R v Wong[6] this Court noted Smith’s emphasis on the importance of the principle of finality and the public interest in the resolution of proceedings. It also noted the difficult hurdle faced by an applicant who has already been afforded and exercised a genuine right of appeal in effectively seeking a further right to present an additional ground relating to the conduct of the appeal. To grant the remedy of a recall in these circumstances runs counter to the principle of finality and is inconsistent with the structure of the Crimes Act. In Wong the Court left open the possibility of reopening an appeal because of a fundamental failure of trial as opposed to the appellate process.
[6] R v Wong [2011] NZCA 563 at [10]–[21].
We are not satisfied that any error, let alone a fundamental error, in procedure has occurred in this case. Mr Batchelor’s evidence was available to Mr Blick and his counsel before the trial commenced on 20 November 2000. It is not fresh evidence within the settled procedural requirement because with reasonable diligence, it could have been called at trial.[7]
[7] R v Bain [2004] 1 NZLR 638 (CA) at [22]-[24].
By 13 January 2000 Mr Blick’s first trial counsel was aware of the existence of a private contractor who completed the work on the PLC programme at LANSNZ. His successor, Mr Shamy, requested contact details. The Crown provided them on 14 November 2000. Mr Shamy spoke with Mr Batchelor and made a file note of their discussion. We can only infer that Mr Shamy made a conscious decision not to call Mr Batchelor for the reason that his evidence would not assist Mr Blick’s defence. Indeed, the District Court Judge’s summing up records that in his closing address to the jury Mr Shamy made comments about Mr Batchelor and his absence.
Mr Blick has sworn a 63 page affidavit in support of his application. Most of it is devoted to submission or argument and to attempts to revisit other issues determined earlier by the trial and appellate process. What is material, however, is Mr Blick’s acknowledgement that a few days before trial he was aware Mr Batchelor had completed the PLC programme for LANSNZ. Indeed, he was present when Mr Shamy cross-examined Mr Northwood at trial relating to Mr Batchelor’s commencement of employment on 28 September 1999 and commissioning work. In answering questions, Mr Northwood specifically referred to Mr Batchelor. Similarly, Mr Blick was present when Mr Shamy cross-examined Mr Quickenden, opening this subject with the question: “After [Mr Blick’s] departure did you help Andrew Batchelor with the PLC?”. Mr Batchelor was a likely source of the information for Mr Shamy’s questions.
By the time of trial Mr Blick’s counsel was in possession of a summary of Mr Batchelor’s brief. It is particularly relevant that Mr Shamy’s note, according to Mr Blick’s construction of it, summarised in shorthand form what Mr Batchelor now says in his affidavit. For reasons which we shall explain shortly, we can understand the reason for Mr Shamy’s decision not to call Mr Batchelor.
Moreover, Mr Blick admits that he was on notice before his appeal was heard in this Court on 22 and 23 August 2001 that Mr Shamy may have interviewed Mr Batchelor before the trial. Mr Blick goes further, and says that he discussed this question with Mr Speed. He says that he did not get a satisfactory answer. But whatever is the case, he knew of Mr Batchelor’s existence and availability himself by the time the appeal was heard. He says that by June 2002 he knew of the nature and extent of Mr Shamy’s interview with Mr Batchelor.
Mr Shamy’s election not to call Mr Batchelor does not qualify for consideration as an abuse of this Court’s process. Mr Blick has failed to establish an error in procedure relating to Mr Batchelor’s evidence. He has not identified any unfairness in either the trial or appellate process which might justify this Court’s intervention.
Miscarriage
Second or alternatively, even if a fundamental error in procedure or indeed the trial process occurred in the way alleged, we are not satisfied that it could possibly have led to a miscarriage of justice. That is because Mr Batchelor’s evidence, if given, would not have been relevant to the issues for the jury’s determination.
On the charges of theft from an employer, the Crown had to prove these six elements: (a) Mr Blick was employed by LANSNZ at the time; (b) the subject property belonged to LANSNZ; (c) the property was moved physically regardless of the distance; (d) the taking was fraudulent – that is, deliberate or dishonest; (e) the taking was without colour of right – that is, without any honest but mistaken belief in a right to take it, otherwise known as honesty of purpose; and (f) the property was moved with an intention to deprive the owner permanently of possession – that is, to keep it or deal with it as if it was Mr Blick’s own property.[8]
[8] See relevant explanation at [19] above.
The evidence given by Mr Northwood and Ms Brown at trial was relevant to elements (a), (b) and (c). These three elements collectively constituted the factual ingredient of the crime of theft from an employer. In the event it was uncontested at trial that Mr Blick was employed by LANSNZ; that LANSNZ owned the computer equipment and documents; and that Mr Blick removed them from LANSNZ’s office. Indeed, Mr Blick admitted as much.
The other three elements constituted the mental ingredient of the crime. Given that there was no contest on the first three elements, they became the focus of the trial. The central question was whether when taking the equipment and documents Mr Blick was acting fraudulently. What was said by Mr Northwood or Ms Brown did not bear on those issues. As this Court noted in its 2001 judgment, the strength of the Crown case lay in the uncontested evidence of Mr Blick’s actions, his explanations and his admissions. His conduct was the source of the most incriminating evidence available to the Crown. Its case against him was overwhelming. As this Court also noted, the jury must have formed an adverse view of his credibility having seen and heard him give evidence at trial.
On the wilful damage charge, the Crown had to prove: (a) that Mr Blick caused damage to the PLC and laptop computer by deleting data; (b) that in doing so Mr Blick acted wilfully – that is deliberately or intentionally; and (c) that he acted without lawful justification or excuse. Again, Mr Blick’s undisputed actions and admissions made out the Crown case against him.
There could be no possible miscarriage of justice if we declined this application.
False evidence
Third, in any event, we are not satisfied that Mr Batchelor’s evidence, even if it was material, has the effect asserted by Mr Blick. At trial Mr Northwood conceded that LANSNZ engaged Mr Batchelor who successfully completed the programme following Mr Blick’s departure. On our analysis, the only material difference between the accounts given by Messrs Batchelor and Northwood relates to the timing of provision of the disks to Mr Batchelor. The latter said that it was in late September; Mr Northwood thought that it was in early October following recovery of Mr Blick’s laptop.
This difference does not suggest that either Mr Northwood or Ms Brown was being deliberately untruthful. It is equally possible on the state of the evidence that either or both were mistaken or that Mr Batchelor is mistaken. If the difference between them was at all material to the issues at trial, it would have been resolved by cross-examination in the usual way. But, as we have said, the difference between them, such as it is, is immaterial.
Section 406
Fourth, Mr Blick has exercised his right to apply to the Governor-General under s 406 of the Crimes Act. He did not provide us with his application or any of the other relevant documents including the Governor-General’s decision to decline. Section 406 provides for the Governor-General to refer questions to the Court of Appeal if he or she considers it appropriate. The fact that that machinery was available but not invoked here, and the Governor-General decided not to exercise his prerogative power, tells against this Court intervening.[9]
Finality
[9] Mr Blick has not pursued his right to petition the Privy Council for leave to appeal.
Fifth, and finally, we revert to the importance of finality in litigation. Mr Blick was tried in 2000. His appeal was dismissed in 2001. Certainly, by mid 2002, Mr Blick was aware of Mr Batchelor and the significance of his evidence. He took no further steps until Mr Moodie interviewed Mr Batchelor on 15 September 2008 and briefed his evidence. Mr Blick waited nearly another four years before applying to this Court to recall its earlier judgment.
In these circumstances it would be contrary to the public interest in finality to consider recalling our earlier judgment.
Result
Mr Blick’s application for an order recalling this Court’s judgment delivered in CA26/2001 on 4 September 2001 is dismissed.
Solicitors:
Moodie & Co, Feilding for Applicant
Crown Law Office, Wellington for Respondent
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