Burt v Police - [2012] NZHC 2551

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2012-419-000047 [2012] NZHC 2551

BETWEEN LANCE MAXWELL BURT Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing: 19 September 2012

Appearances: P J O'Sullivan for Appellant
R G Douch for Respondent

Judgment: 3 October 2012

JUDGMENT OF VENNING J

This judgment was delivered by me on 3 October 2012 at 11.00 am, pursuant to Rule 11.5 of the High
Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors: Crown Solicitor, Hamilton
O’Sullivans Lawyers Limited, Te Rapa

BURT V NEW ZEALAND POLICE HC HAM CRI-2012-419-000047 [3 October 2012]

[1] Following a defended hearing in the District Court at Thames1 Mr Burt was convicted on one count of accessing a computer system for a dishonest purpose.2
Judge Wolff subsequently sentenced him to nine months’ imprisonment. The Judge also directed Mr Burt to pay $81,930.98 by way of reparation.

[2] On 18 July 2011 Mr Burt appealed against his conviction and sentence. On

23 August 2012 Woolford J granted him bail pending the hearing of the appeal.3

Background facts

[3] Mr Burt was the principal shareholder and sole director of Coromandel Land

Trust Limited (CLT). CLT owned farmland in the Coromandel area. On 12 March

2005 CLT entered a sharemilking agreement with Ian and Lisa Handcock (or nominee) pursuant to which Mr and Mrs Handcock were to run and milk dairy cows on CLT’s property. The parties agreed to split the milk proceeds 50/50. The Handcocks apparently nominated their company Milkt Investments Limited (MIL) as the ultimate contracting party.

[4] CLT nominated Fonterra as the company to which the milk solids produced from the dairying operation were to be supplied. As a condition of accepting the supply Fonterra required there be only one nominated person, the owner of the shares in Fonterra, to whom the milk cheque would be paid. That was CLT, as owner of the land. Absent instruction otherwise from CLT, Fonterra would pay the cheque for the milk supply to CLT. However under the sharemilking agreement between CLT and MIL, CLT agreed to instruct Fonterra to pay MIL its proportion of the milk proceeds and for that purpose lodged an automatic payment authority in favour of MIL with Fonterra.

[5] From a relatively early point in the relationship, a number of issues arose between Mr Burt and the Handcocks. Mr Burt was essentially a property investor,

1      Police v Burt DC Thames CRI-2012-075-000049, 5 June 2012.
2      Crimes Act 1961, s 249.
3      Burt v Police HC Hamilton CRI-2012-075-000049, 23 August 2012.

not a farmer. The Handcocks were experienced dairy farmers, but Mr Handcock also ran a farm consultancy. In Mrs Handcock’s words, Mr Burt tried to make claims about how they were running the farm to make matters difficult for them, but they stood their ground under the contract.

[6] Despite the involvement of consultants, the relationship deteriorated to the stage that, on 19 April 2007, Mr Burt contacted Fonterra and instructed them to direct the milk cheque due to MIL on 20 April to…

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 Burt v Police

Details

AGLC: Burt v Police [2012] NZHC 2551
Case: [2012] NZHC 2551
Decision Date: 3 October 2012

CaseChat Overview and Summary

The appellant, Lance Maxwell Burt, appealed against his conviction and sentence in the District Court, which had found him guilty of accessing a computer system for a dishonest purpose and sentenced him to nine months' imprisonment, as well as ordering him to pay reparation of $81,930.98. The appeal was heard by Venning J in the High Court at Hamilton. The central legal issues were whether the appellant had acted dishonestly, whether he had acted without a claim of right, whether he had obtained a pecuniary advantage, and whether there was a causal link between his accessing the computer system and obtaining the pecuniary advantage. The Court found that the appellant had indeed acted dishonestly, obtained a pecuniary advantage, and that there was a causal link between his actions and the pecuniary advantage. However, the Court held that the prosecution had not proved beyond reasonable doubt that the appellant did not have a claim of right. The appeal was therefore allowed, the conviction and sentence were quashed, and there would be no order for retrial.

Orders