R v Kerr

[2016] NZHC 416

ORDER PROHIBITING PUBLICATION OF REFERENCES TO RESTRAINT ORDERS AND THE OTHER PROCEEDINGS AT [40], [57] AND [67]

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2015-092-011253

[2016] NZHC 416

THE QUEEN

v

JEREMY HAMISH KERR

Hearing:	23 February 2016, 10 March 2016
Appearances:	C Gordon QC and Z Hamill for Crown J Billington QC for Defendant
Judgment:	10 March 2016

JUDGMENT OF VENNING J ON DISPUTED FACT HEARING

Solicitors:           Kayes Fletcher Walker, Auckland

Anthony Harper, Auckland

Copyto:            J Billington QC, Auckland D Hughes, Auckland

R v KERR [2016] NZHC 416 [10 March 2016]

Introduction

[1]                  Jeremy Hamish Kerr has pleaded guilty to two counts of blackmail. The charges relate to letters he sent in November 2014 to the Chief Executive Officers of Fonterra and Federated Farmers. Mr Kerr enclosed samples of 1080 poison blended with New Zealand dairy infant formula with the letters. The letters threatened that if, after 27 March 2015 1080 was still in use in New Zealand then several New Zealand infant and other formula with traces of 1080 would be released into the retail chain in the Chinese and one other market.

[2]Section 237 of the Crimes Act 1961 provides:

237     Blackmail

(1)Every one commits blackmail who threatens, expressly or by implication, to make any accusation against any person (whether living or dead), to disclose something about any person (whether living or dead), or to cause serious damage to property or endanger the safety of any person with intent—

(a)to cause the person to whom the threat is made to act in accordance with the will of the person making the threat; and

(b)to obtain any benefit or to cause loss to any other person.

(2)Every one who acts in the manner described in subsection (1) is guilty of blackmail, even though that person believes that he or she is entitled to the benefit or to cause the loss, unless the making of the threat is, in the circumstances, a reasonable and proper means for effecting his or her purpose.

(3)In this section and in section 239, benefit means any benefit, pecuniary advantage, privilege, property, service, or valuable consideration.

[3]Mr Kerr was charged in each case with:

On or about 26 November 2014, at Auckland threatened expressly to endanger the safety of any person, namely infants who ingest dairy infant formula, by releasing infant milk formula into the Chinese market and one other retail market, contaminated with traces of sodium fluoroacetate (1080), with intent to cause [Federated Farmers/Fonterra], to act in accordance with the will of Jeremy Hamish Kerr, the person making the threat, to cause [Federated Farmers/Fonterra] to pressure the New Zealand Government to stop the use of sodium fluoracetate (1080) in New Zealand, and thereby to obtain a benefit.

[4]                  For present purposes the relevant elements of the two counts to which Mr Kerr has pleaded guilty are:

(a)the express threat;

(b)to endanger the safety of infants;

(c)with intent to cause Fonterra and Federated Farmers to act in accordance with his will, namely to pressure the Government to stop the use of 1080; and

(d)thereby to obtain a benefit.

[5]                  While Mr Kerr accepts he sent the letters and is guilty of blackmail he disputes the motivation attributed to him by the Crown for sending the letters. The Crown’s position is that Mr Kerr’s motivation was financial. It says he sought to obtain a monetary benefit from the blackmail letters.

[6]                  Mr Kerr’s position is that he sent the letters because he was concerned at the widespread and indiscriminate application of 1080, and sought to achieve a change in Government policy through the pressure the powerful interest groups of Fonterra and Federated Farmers could apply. He says he was not motivated by personal financial gain at all. For example, in the course of his interview with the police he said:

But we seem to have tipped this way … [he demonstrates by tilting his body] and we’re [now] using them indiscriminately. Not my product cos it’s so … regulated but 1080 by comparison is very unregulated.

[7]                  Other comments Mr Kerr made during the course of his interview support his suggestion that he acted in the way he did because he considered the use of 1080 to be indiscriminate.

[8]                  Section 24 of the Sentencing Act 2002 applies. By pleading guilty to the charges Mr Kerr has accepted as proved that he intended to obtain a benefit. The issue is what form of benefit he sought to achieve. The Crown submits that as an aggravating fact he was financially motivated. Pursuant to s 24(2)(c) the Crown must

prove beyond a reasonable doubt the existence of that disputed aggravating fact. It is not for Mr Kerr to prove anything at this hearing. He has had no onus.

[9]                  Two preliminary points can be made. If the benefit Mr Kerr sought to achieve was to change Government policy towards the use of 1080 because he disagreed with it that is not itself a mitigating fact. It is, as noted, part of the element of the offence, the charge in this case, namely the benefit. By his guilty plea he has accepted that at the least he intended to achieve that benefit, that outcome.

[10]              I should also record that although Mr Kerr initially put in issue whether the samples attached to the letters contained sufficient poison to kill a number of infants he now accepts that to be the case.

Background

[11]              For the purposes of sentence and this preliminary hearing in advance of sentence Mr Kerr accepts a summary of facts, which includes the following.

[12]              Since 1981 he has held directorships in a range of New Zealand companies. A number of the companies developed a range of pest control products specifically to reduce the population of possums, rats, stoats and other rodents. In 1995, through Feral R & D Limited he developed and registered a cyanide based product named Feratox, a vertebrate toxic agent (VTA) normally used in conjunction with ground based trapping.

[13]              The principal VTA used in the pest control industry is 1080. As a pest control agent 1080 is normally dispensed in pellet baits that are distributed aerially.

[14]              Throughout New Zealand the use of 1080 as a pest control agent is opposed by a number of individuals and groups, many of whom feel that the environmental impact outweighs the benefits of the product in the eradication of the pests. Opposition groups range from minor political parties, for example the Ban 1080 Party, to facebook groups such as the 1080 Free Rolleston and Stop 1080 poison groups.

[15]              Mr Kerr has had a long association with the use of 1080 and other toxins dating back to the 1990’s. In 2001 Mr Kerr was involved in researching and developing pest control products using 1080. He engaged Land Care Research NZ Limited to conduct testing on his behalf. He was in possession of amounts of high grade 1080 for these research purposes and supplied a quantity of it to Land Care Research for testing at the time.

[16]              In 2004 Mr Kerr was involved in a study on the effects of gamma irradiation on 1080. That would have potentially allowed a Feral R & D Limited product containing 1080 to be used in Australia. He was in possession of amounts of high grade 1080 for research purposes and again supplied a quantity to Animal Control Products Limited (ACP) for testing at that time.

[17]              Through his company, Connovation IP Limited (which I record is a completely separate company to Connovation Limited) Mr Kerr has 11 products registered for use in New Zealand on the Agricultural Compounds and Veterinary Medicines (ACVM) Register, including Feratox. Connovation IP Limited owns the intellectual property rights for the products under a licence agreement between Connovation IP Limited and Connovation Limited made in March 2003 and receives payments from Connovation Limited which manufactures and sells the products.

[18]              The royalty payments received by Mr Kerr since March 2003 have varied from a high of in excess of $250,000 for the year ended March 2003 to a low of just under

$88,000 in the year ended March 2012. In the year ended March 2015 they totalled

$114,000 approximately.

[19]              Mr Kerr accepts that in writing the letters to Fonterra and Federated Farmers he realised that the cessation of the use of 1080 nationally might result in a short-term increase in sales of non 1080 related VTA. However, as noted, he denies he was financially motivated in making the threats.

[20]              Apart from his royalties income Mr Kerr also had a directorship in Natures Support Limited, which among other things, sells goods made of possum pelts.

Possum pelts contaminated by 1080 cannot be used for such products, but the pelts of possums killed by Feratox can be.

[21]              The blackmail threats in the letters of November 2014 were reported to the police. The collective volume of the 1080 contained in the samples attached to the blackmail letters was analysed and confirmed sufficient to prove fatal to a number of infants. Following a preliminary assessment a serious crime investigation commenced. The investigation represented a major undertaking for the police over 10 months. It involved over 35 investigators and analysts with additional resources being seconded at different stages from other agencies and stakeholders. A number of other agencies and stakeholders became involved, primarily led by the Director-General of the Ministry of Primary Industries.

[22]              The police assessed approximately 2,600 individuals who had in some way voiced their opposition to or had strong views concerning the use of 1080 as a pest control agent. They also assessed individuals and entities who had been involved in possessing and/or using 1080. The majority of those assessed did not meet investigative criteria and therefore required no further analysis.

[23]              As Mr Kerr was licensed to hold or possess 1080 for physical use or research and development purposes Detective de Villiers visited Mr Kerr at his East Tamaki business premises on 27 June 2015.

[24]              During the visit Mr Kerr was specifically questioned about his knowledge of 1080. He disclosed he had possessed 1080 in the past. He said that he had disposed of about one kilogram some two years previously by flushing it down the toilet. He recalled that the 1080 had come from Land Care Research Limited. Mr Kerr agreed to voluntarily provide a DNA and fingerprint sample for elimination purposes and he allowed the police to conduct a cursory examination of his laptop. The Detective left Mr Kerr with his police business card.

[25]              Following the visit from Detective de Villiers Mr Kerr wrote anonymously to the Detective claiming that there was never a threat made to New Zealanders and that the purpose of the blackmail letter was to show what damage would be caused to the

New Zealand dairy product export market to China if products became contaminated with 1080.

[26]              Although that retraction letter was dated 26 June 2015, the day before Mr Kerr had met with Detective de Villiers, a forensic examination of the retraction envelope and letter revealed that Mr Kerr (or his brother or sons) were 260 times more likely to have been the source of the DNA on the envelope and letter than any other male sourced from the general New Zealand population. The 1080 attached to the blackmail letters was also analysed and found consistent with the 1080 Mr Kerr had possessed in 2001 and 2004. Fifty-one other samples of 1080 obtained during the investigation were able to be eliminated from testing.

[27]              After search warrants were executed at addresses of interest, Mr Kerr was interviewed. While he initially denied writing the retraction and blackmail letters, he ultimately conceded during the course of the interview that that he had written them. When arrested he said he was sorry and regretful.

[28]              As noted, what is in issue in this disputed fact hearing is the benefit that Mr Kerr sought to obtain as a result of the threats in the blackmail letters.

[29]              The evidence led by the Crown, which was not challenged, establishes the following. Mr Aylett, the Operations Manager at Connovation Limited, confirms no other company in the world produces a product similar to Feratox. If 1080 was taken off the shelves, in his opinion sales of Feratox would increase as it is a targeted product. It would be the natural alternative to use for pest control of possums. While other products are being developed and could be fast tracked to development it would take about five years for those to be ready. Mr Aylett said that whenever Mr Kerr came into Connovation he was always asking how the sales were going.

[30]              Mr MacMorran, the Chief Executive Officer of Connovation Limited, confirms that the only entity that receives any royalty payments from products that are listed against Connovation IP Limited is Connovation IP Limited itself, the company controlled by Mr Kerr. As a result of the pest control work, the reported numbers of the possum population is now at around 20 million. A maintenance phase is well under

way, although some areas in the country are still undergoing a knock down phase, such as on the West Coast. As there has been a decrease in the possum population by 75 per cent the use of all forms of pest control has also decreased which is reflected in the amount of the money being paid in royalties to Mr Kerr for the product that he has intellectual property rights to.

[31]              Mr MacMorran does not consider Mr Kerr to be against 1080 as a toxin as Mr Kerr had previously done a lot of work in trying to develop 1080 based products. It is just how it was aerially deployed in pellets that Mr Kerr was anti. He had never heard Mr Kerr say that 1080 should be banned. He recalls a discussion with Mr Kerr in early 2015 when he, Mr MacMorran had commented that the Environmental Protection Agency had tightened regulations for the handling and storage of 1080 following the blackmail threats. Mr Kerr said he hoped it wouldn’t make it harder to sell Feratox. Mr MacMorran said that if 1080 was banned he believed the effect on products that form Connovation IP Limited’s royalties would be minimal. While there would be an increase in the sales of the products he did not think there would be a large increase as Feratox and other products were all ground laid products. Essentially Feratox and 1080 are two different products, albeit trying to do the same thing. Having said that Mr MacMorran said that if 1080 were banned and the possum population increased again the industry would be back to a knockout phase which might slightly increase the sales of Feratox products, although it would never replace the 1080 pellets. An increase in the possum population would be of incidental benefit to Mr Kerr’s other business interest Natures Support Limited.

[32]              Mr Holmes has also given evidence. He was formerly involved in Mr Kerr’s business as a General Manager helping to commercialise Feratox. They went to Regional Councils and the Department of Conservation [DOC] with an attempt to have people use Feratox as an alternative to 1080. In his view 1080 was definitely a competitor and if 1080 was banned obviously the market for Feratox would be greatly enlarged. He also said Mr Kerr had never expressed an anti 1080 view.

[33]              Mr Wright was involved with Mr Kerr for a time as well in his case as Production Manager. He left the company in 2006. He confirms Mr Kerr never came across to him as anti or against 1080. In his view Mr Kerr’s issues regarding 1080

were from a commercial point of view in that where they used 1080 they did not use Feratox. He says that a substantial drop in the use of 1080 would increase the use of Feratox, probably not dramatically, but potentially anywhere from 10 to 30 per cent.

[34]              Mr Cox manufactures possum pelts for Natures Support Limited, the other business Mr Kerr has an interest in, and confirms that the pelts and fur from possums that are killed by 1080 cannot be use commercially due to the toxins still being present on the carcasses.

[35]              Mr McSporran discussed working with Mr Kerr to develop products involving 1080.

[36]              All of that general evidence, which is really not challenged at all by Mr Kerr, confirms that if the use of 1080 was banned, then there would be a short-term increase in sales of Feratox (perhaps over a two to three or at the outside five year period) and accordingly an increase in the royalty fees paid to Mr Kerr from the use and sale of Feratox. The possum population might increase. There would be an increase in the availability of possums killed by cyanide as opposed to 1080 which would be of some, again an unquantified and perhaps modest, benefit to the other business Mr Kerr has an interest in Natures Support Limited.

[37]              The evidence establishes that Mr Kerr would, in general terms, benefit financially from a ban of 1080. On the information before the Court it is impossible to quantify by exactly how much. It seems it would be relatively modest. The best indicators of the amounts of money that Mr Kerr could earn are perhaps taken from previous royalty fees received by him, which as noted, vary from a high of $250,000 in March 2003 to a low of just under $88,000 in March 2012. Over the 13 year period to March 2015 the average was $135,000 approximately. Over the last five years prior to and including March 2015 the average has been reducing to just over $101,000 per annum. On that basis a 10 to 30 per cent increase in sales would be no more than an increase of $10,000 to $30,000 per annum in royalties.

[38]              The real issue is whether, as the Crown submit, Mr Kerr was motivated by that possibility of such an increase in sales of Feratox or, as is submitted for him, he was

not motivated by that at all. That involves a consideration of Mr Kerr’s financial position as he perceived it to be at the time and the other evidence relevant to his situation, his financial position, and his actions in November 2014. In relation to that the principal evidence for the Crown has been given by Detective Beswick.

[39]              Detective Beswick’s evidence was challenged in part by Mr Kerr. Detective Beswick was formerly employed by the Bank of New Zealand as a business manager. That required him to review the lending of existing business clients to ensure they were in a position to service debt and to take preventive action if the financial situation deteriorated. He has been in the New Zealand Police for 14 years and most recently has been involved in the New Zealand Police Asset Recovery Unit implementing the Criminal Proceeds (Recovery) Act 2009. Having reviewed Mr Kerr’s financial position in late 2014, early 2015, Detective Beswick concludes that Mr Kerr was under financial stress at the time. While he had income from royalty payments he was not fully servicing a number of substantial debts which had a compounding effect on his current and future financial position.

[40]              … Detective Beswick notes that Mr Kerr had invested substantial sums in the business of Natures Support Limited. He had borrowed further funds against his mother’s property at Taupo using the power of attorney his mother had granted him to support the business development of Natures Support Limited. Thirty thousand dollars of new borrowing was transferred directly into the account of Natures Support Limited in three separate amounts of $10,000 on 20 November, 26 November 2014 and on 28 January 2015. A further $10,000 had earlier been transferred from the personal account of Mr Kerr’s mother direct to the account of Natures Support Limited on 23 October 2014. Detective Beswick also concludes there was evidence Mr Kerr had transferred funds from the account of his mother to the Feral R & D Limited bank account to fund the obligations under a term loan.

[41]              The Detective also notes there were a number of communications from creditors at around the relevant time which supported his conclusion Mr Kerr was under financial pressure. For example, on 1 September 2014, a creditor had written to Mr Kerr asking for payment of $1,369 urgently stating:

I have real money problems. Let me know what you can do.

Mr Kerr responded:

Mike
Paid $869.00. I have the same problem, will definitely clear it up this month.

[42]              On 30 September 2014 Mr Kerr wrote to his Bank regarding the situation of Feral R & D Limited noting that it was over its limit, and that he had given an undertaking to have it paid by last Friday. He said:

At present I’m having difficulty with several debtors and prompt payment.

He asked if he could revert to interest only payments for the next three months.

[43]              The Bubble Production and Advertising marketing agency were in regular communications with Mr Kerr regarding the outstanding accounts for Natures Support Limited. As at 30 June 2015 Mr Kerr sent an email:

It’s a bloody nightmare here, I have got my cash flow sorted for [August], I’ve sold some surplus plant and I get settled then, also our business will be back to normal by then. I can make a part payment in July, I’m not sure how much yet I’ll know in two weeks I’m really sorry about this. The last thing I expected to happen.

[44]              In August 2015 Mr Kerr wrote in response to a request by people who were due royalties to advise:

Sales are not going well at all, in the past 6 months I’ve spent over $25000 in advertising and got very little return, in June we sold $5000 of all products and not much more in July, August looks about $3000 I’m trying to find a new partner for the business but it’s difficult, I can’t make a payment this [sic] but will reconcile it all and make a payment next month.

[45]              For Mr Kerr there is evidence from his son Timothy and from Mr Hussey, a chartered accountant, who prepared an analysis of Mr Kerr’s financial position.

[46]              Timothy Kerr explained the steps he has taken to manage his father’s personal and business affairs since his arrest. He notes that Natures Support Limited had an income for the year ended 31 March 2015 of $76,000.

[47]              Mr Hussey has reported on Mr Kerr’s financial position. In summary he assesses the value of the Kerr companies’ net asset position as at 31 March 2015 to have been $227,000 positive. However in assessing the value at $227,000 Mr Hussey applied a value to the royalty or commission stream of $360,000, in other words the value took into account the sale of the rights to the income for the future. As he acknowledged later in his evidence Mr Hussey regards selling the royalty stream as being a high stress option as most people would find it difficult to sell an income stream they were relying on to live off.

[48]              Putting to one side the personal assets and liabilities that are restrained Mr Hussey assessed Mr Kerr’s personal assets and liability situation, taking account of other assets and company assets, to be negative $116,000 as at 31 March 2015 even taking account of the $227,000 for company assets including the $360,000 for the sale of the royalty stream.

[49]              Mr Kerr’s restrained assets had a value of approximately $1.415 million. They were not however available to Mr Kerr in November 2014 to meet the financial pressure that he was under.

[50]              On Mr Hussey’s analysis the royalty income that Mr Kerr received would cover his living and debt servicing commitments and leave a surplus of around $21,000 a year.

[51]              The thesis of Mr Hussey’s evidence is that if a person is able to rearrange their financial affairs to meet future financial commitments then they should not be considered to be under financial stress.

[52]              The issue for the Court however is whether in October or November 2014 Mr Kerr considered himself to be under financial stress so that he saw, as one means of addressing that stress, blackmailing Fonterra and Federated Farmers to force a change in the Government’s policy on 1080 in order to achieve an increase in the use of Feratox and accordingly a consequential increase in the royalty paid to him (which had been generally reducing over time).

[53]              While Mr Hussey suggested that the passive income from royalties was sufficient to cover Mr Kerr’s personal outgoings leaving the surplus of $21,000, I note that in the course of his interview Mr Kerr himself seems to have taken a different view. When discussing royalties he said:

Oh I was getting a hundred thousand a year off it. And I’m still getting that today about a hundred .. it varies, ninety to hundred thousand but it’s not enough to live on cos I have to provide services to them to .. oh it’s complicated but I just can’t walk away from the products. Although they have licence to them I have to support them.

[54]              Mr Hussey considers that to the extent Mr Kerr was suffering financial stress, the main cause would have been his inability to keep his general creditors current. He acknowledged Mr Kerr was juggling those creditors to keep them at bay. Mr Hussey says that the situation could have been mitigated by Mr Kerr raising funds from selling plant and equipment and was mitigated by the good relations Mr Kerr had with his creditors. Mr Billington QC noted there was no legal action being taken by those creditors to recover money. Alternatively Mr Hussey said that Mr Kerr could have taken the decision to cease spending on Natures Support Limited, which was the major outgoing Mr Kerr was committed to.

[55]              However, Mr Hussey accepts that the trade creditors totalled about $63,000 as at 31 March 2015. Mr Kerr was not able to make the payments when they fell due. Even to this date, and with his son, Timothy’s management, the companies’ creditors have not yet been paid in full. To sell plant and equipment in order to meet creditors’ demands, as Mr Hussey suggested was an option, would have been a drastic step.

[56]              Mr Hussey’s analysis of Mr Kerr’s financial position does not provide the full picture of the financial and other pressures Mr Kerr was under at the time he wrote the blackmail letters in November 2014.

[57]              … While there may have been equity in those assets the equity was not available and Mr Kerr could not access it in order to assist him to address the financial pressure he was under in late 2014.

[58]              Importantly, the business of Natures Support Limited was not covering its outgoings. Mr Kerr was paying money into it but it was still returning substantially

less than he was paying into it. While it is correct, as Mr Hussey opined, that Mr Kerr could simply have stopped putting money in as he had no commitment to continue to fund it, Mr Kerr had advanced money to the company with the view of obtaining a benefit obviously. The money he put into it supported the research and marketing of the product which was important for the future of the company. The risk of ceasing to continue to put money into Natures Support Limited was that the money he had already invested in it would be lost. The income it was making was not itself sufficient. I am satisfied that the need of Natures Support Limited for money placed additional pressure on Mr Kerr. That is apparent from the analysis carried out by Detective Beswick.

[59]              Mr Hussey accepts that Mr Kerr was juggling his finances around the relevant period and was spending significant sums of money promoting Natures Support Limited.

[60]              That is also borne out by Mr Kerr’s use of the power of attorney he held to manage his mother’s affairs which he used to obtain a loan of $50,000 in his mother’s name in order to continue that funding of Natures Support Limited.

[61]              While again Mr Hussey suggests Mr Kerr might have been anticipating his ultimate entitlement under his mother’s estate, the fact that he went to the extent of obtaining the loan in advance of her death is evidence of the financial pressure he was under and that he needed further cash at that time, a month before he sent the blackmail letters. It is also relevant that he gave a different explanation to the bank manager for the need for the loan.

[62]              Another factor is that Mr Kerr requested further funding from Mr Greer. Mr Greer had advanced $85,000 to Mr Kerr from April to August 2014. On 5 October 2014 Mr Kerr had asked for another $20,000 from Mr Greer.  Mr Greer advanced

$8,000 in October but nothing in November or December.

[63]              Another factor relevant to the issue of Mr Kerr’s motivation is his own comments in an email exchange with one of his sons earlier in 2014, less than six months before the letters were sent. On 30 May 2014 Mr Kerr encouraged his son and

his friends to join the Ban 1080 political party. He offered to provide them with money to do so. In response to the son’s comments:

Okay I’m assuming that things will go very well for Connovation if 1080 is banned?

Mr Kerr responded by saying:

Extremely well.

[64]              While Mr Kerr sought to pass those comments off as banter when the comments were put to him by the police, the offer of money to join the party suggests otherwise. Further the comments are consistent with the threat to ban the use of 1080.

[65]              Mr Hussey’s evidence is essentially an ex post facto rationalisation that at the relevant time, November 2014, Mr Kerr did not need to prevent the sales of 1080 poison and that with some reorganisation his financial position was sound. But there is no evidence that Mr Kerr himself had undertaken that calm and rational analysis of his financial position at that time. Indeed in the course of his police interview he commented to the effect that he had never added up his assets.

[66]              Further, there were a number of other factors which influenced Mr Kerr’s actions at the time which support the view he perceived himself to be under financial pressure.

[67]              He was also under general stress at the time. His wife had died after a long illness. He was, according to a clinical psychologist’s view, dealing with a range of difficulties at the time he wrote the letters. The ongoing pressure associated with …, his father’s illness in 2012 and subsequent death, all contributed to the pressure Mr Kerr was under.

[68]              The suggestion that Mr Kerr was primarily influenced by some altruistic opposition to the indiscriminate aerial dropping of 1080 is also inconsistent with the content of the blackmail letters themselves. As Ms Gordon QC submitted the letters were directed at the total ban of the use of 1080 rather than a change in policy towards

how it was used. They were not directed at the indiscriminate aerial dropping that Mr Kerr referred to later.

[69]              The evidence satisfies me that Mr Kerr was under considerable financial pressure at the time he wrote the blackmail letters. He also knew that, at least in the short term, sales of Feratox was likely to increase if 1080 was banned, which would in turn lead to an increase in the royalty payments he would receive.

[70]              While Mr Kerr may have had some issues with the indiscriminate aerial use of 1080 I am satisfied that was not the dominant or operative reason for his writing the blackmail letters.

[71]I find that the Crown has proved the following beyond reasonable doubt:

(a)at the time Mr Kerr wrote the blackmail letters he was under considerable financial pressure;

(b)Mr Kerr knew that there would be some financial benefit to him if 1080 was banned;

(c)when Mr Kerr wrote the blackmail letters he was motivated in doing so by the fact he considered he would benefit financially if 1080 was banned, although he did not know how much exactly that financial benefit would be;

(d)while there may have been other reasons behind Mr Kerr writing the blackmail letters, in writing them he intended to obtain some financial benefit himself.

[72]              Mr Kerr will be sentenced on that basis. He is remanded in custody to 9.00 am, 23 March 2016 for sentence.

Venning J