Mark Joseph Benjamin v The Queen - [2012] NZSC 39

IN THE SUPREME COURT OF NEW ZEALAND

SC 13/2012
[2012] NZSC 39

MARK JOSEPH BENJAMIN

THE QUEEN

Court: Blanchard, William Young and Chambers JJ

Counsel: G M Illingworth QC and I C Bassett for Appellant
M D Downs for Crown

Judgment: 23 May 2012

JUDGMENT OF THE COURT

The application for leave to appeal is dismissed.

REASONS

Between January and August 2006 Mark Benjamin, the applicant, worked for Kerry (NZ) Ltd. His responsibilities included arranging monthly payments to Kerry’s salaried employees. Mr Benjamin’s initial salary was $165,000 pa. But from March that year, he paid himself as if his annual salary was $175,000. When this was discovered, after he had left Kerry’s employment, he eventually proffered by way of explanation that on 6 March 2006 Hugh Spence, Kerry’s managing director, had agreed to Mr Benjamin’s salary being increased by $10,000 pa. Hugh Spence denied ever having so agreed.
Mr Benjamin eventually faced seven charges of accessing a computer system and thereby dishonestly and without claim of right obtaining a pecuniary advantage, contrary to s 249(1)(a) of the Crimes Act 1961. Four of the charges related to overpayment of salary.[1] The other three related to overpayment of holiday pay. Mr Benjamin’s defences to those charges were mistake on his part (with respect to two of the counts) and mistake on someone else’s part with respect to the other.
[1]These related to the months of March, April, May and June 2006. No charge was laid in respect of over payment of salary in July 2006, although it is common ground Mr Benjamin paid himself as if his annual salary was $175,000 that month too. There was a charge relating to overpayment of holiday pay in July 2006.
The trial took place in the District Court before Judge Wilson QC. He found him guilty on all counts.[2] Mr Benjamin appealed, essentially on the grounds of what is loosely called trial counsel incompetence and new evidence. The Court of Appeal dismissed the appeal.[3] Mr Benjamin now seeks leave to appeal, principally on the basis that a substantial miscarriage of justice has occurred.
[2] R v Benjamin DC Auckland CRI-2008-004-18032, 24 November 2010.
[3] Benjamin v R [2012] NZCA 9.
Complaint is made concerning the truncated nature of the hearing in the Court of Appeal. Mr Rogers, Mr Benjamin’s counsel in the Court of Appeal, had asked for a two day hearing but effectively was given a one day hearing. He complained that, as a consequence, he had to rush his cross-examination of Crown witnesses whose evidence responded to evidence given in support of the appeal. All courts can ration time available for oral submissions, especially in circumstances where (as in the Court of Appeal) detailed written submissions are filed in advance of the hearing. We accept that counsel should not be rushed with respect to the taking of evidence in the Court of Appeal, where the grounds of appeal by their nature require evidence. In this case, however, we are satisfied no…

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 Mark Joseph Benjamin v The Queen

Details

AGLC: Mark Joseph Benjamin v The Queen [2012] NZSC 39
Case: [2012] NZSC 39
Decision Date: 23 May 2012

CaseChat Overview and Summary

In the case of Mark Joseph Benjamin v The Queen, the Supreme Court of New Zealand dismissed Mark Benjamin's application for leave to appeal his conviction on seven charges of accessing a computer system to dishonestly obtain a pecuniary advantage, contrary to section 249(1)(a) of the Crimes Act 1961. Benjamin, who worked for Kerry (NZ) Ltd, had overpaid himself by $10,000 per annum from March to July 2006. The charges related to overpayments of both salary and holiday pay. Benjamin's appeal was dismissed on the grounds that there was no substantial miscarriage of justice and the appeal did not involve a matter of general or public importance.

The legal issues the court needed to decide included whether there had been a miscarriage of justice due to the truncated nature of the hearing in the Court of Appeal and whether the new evidence presented in support of the appeal was sufficient to warrant a re-evaluation of the original verdict. The court also needed to determine whether the new evidence provided a convincing explanation for the discrepancies in Benjamin's salary payments and holiday pay overpayments.

The court found that no miscarriage of justice had occurred due to the time constraints during the Court of Appeal hearing. The court acknowledged that counsel should not be rushed in taking evidence in the Court of Appeal, but in this case, they were satisfied that no injustice arose from the procedure adopted. The court also found that the new evidence, although casting some doubt on the accuracy of the Crown's forensic evidence at trial, did not undermine the safety of the trial judge's verdicts. The court concluded that the new evidence did not provide a convincing explanation for the discrepancies in Benjamin's salary payments and holiday pay overpayments, and the suggestion that Hugh and Matthew Spence conspired to set Benjamin up was riddled with holes. Therefore, the court was not persuaded that a substantial miscarriage of justice had occurred.

The final orders of the court were to dismiss the application for leave to appeal. The court found that the appeal did not involve a matter of general or public importance and therefore declined to grant leave to appeal. The convictions and sentences imposed by the District Court and affirmed by the Court of Appeal remained in place.

Orders