Blick v R - [2012] NZCA 373

IN THE COURT OF APPEAL OF NEW ZEALAND

CA26/2001
[2012] NZCA 373

BETWEEN ROGER LINDSAY BLICK
Applicant

AND THE QUEEN
Respondent

Court: Ellen France, Randerson and Harrison JJ

Counsel: R Moodie for Applicant
M Laracy for Respondent

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,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Blick v R

Details

AGLC: Blick v R [2012] NZCA 373
Case: [2012] NZCA 373
Decision Date: 20 August 2012

CaseChat Overview and Summary

Roger Lindsay Blick sought to recall the New Zealand Court of Appeal's judgment delivered in R v Blick on 4 September 2001, which dismissed his appeal against conviction for stealing computer equipment and documents from his employer, LANSNZ Ltd, and wilfully damaging a Siemens Programmable Logic Controller and laptop computer by deleting data. The appeal against sentence was partially successful. On 19 October 2007, Blick applied to the Governor-General to exercise his prerogative of mercy under section 406 of the Crimes Act 1961, but this application was unsuccessful. Blick now applies to the Court of Appeal to recall its earlier decision and quash his conviction, claiming that a fundamental error in procedure has occurred which must be corrected and a recall is his only available remedy. He relies on what he submits is the discovery of new evidence relevant to his conviction.

The Court of Appeal found that Blick's application must fail on a number of alternative grounds. First, Blick had not satisfied the high jurisdictional threshold necessary to justify recalling the Court's earlier judgment. The relevant principles are found in R v Smith. 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 circumstances necessary to justify a recall must be exceptional. The power is strictly circumscribed and does not allow a party a general right to reopen an appeal. The Court of Appeal found that no error, let alone a fundamental error, in procedure had occurred in this case.

Second or alternatively, even if a fundamental error in procedure or indeed the trial process occurred in the way alleged, the Court of Appeal was not satisfied that it could possibly have led to a miscarriage of justice. The evidence given by Mr Northwood and Ms Brown at trial was relevant to elements (a), (b) and (c) of the charges of theft from an employer. 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 Blick was employed by LANSNZ; that LANSNZ owned the computer equipment and documents; and that Blick removed them from LANSNZ’s office. Indeed, 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 Blick was acting fraudulently. What was said by Mr Northwood or Ms Brown did not bear on those issues.

Third, in any event, the Court of Appeal was not satisfied that Mr Batchelor’s evidence, even if it was material, has the effect asserted by Blick. 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 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.

Fourth, Blick has exercised his right to apply to the Governor-General under section 406 of the Crimes Act. He did not provide the Court of Appeal 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 the Court of Appeal intervening.

Fifth, and finally, the Court of Appeal reverted to the importance of finality in litigation. Blick was tried in 2000. His appeal was dismissed in 2001. Certainly, by mid 2002, 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. Blick waited nearly another four years before applying to the Court of Appeal to recall its earlier judgment. In these circumstances it would be contrary to the public interest in finality to consider recalling the Court of Appeal's earlier judgment.

The Court of Appeal dismissed Blick's application for an order recalling its judgment delivered in CA26/2001 on 4 September 2001.

Orders