The Queen v Roger Lindsay Blick

IN THE COURT OF APPEAL OF NEW ZEALAND

CA26/01

THE QUEEN

ROGER LINDSAY BLICK

Hearing:	22 and 23 August 2001
Coram:	Blanchard J Salmon J Potter J
Appearances:	A G Speed for Appellant T M Gresson and C M O’Connor for Crown
Judgment:	4 September 2001

JUDGMENT OF THE COURT DELIVERED BY BLANCHARD J

Introduction

Mr Blick appeals against his convictions in the District Court at New Plymouth on charges of:
[a]stealing computer equipment (a desktop computer and a laptop computer) and documentation (including the hard copy of a computer programme) belonging to his employer, LANSNZ Ltd, and
[b]wilfully damaging a Siemens Programmable Logic Controller (PLC) and the laptop computer by deleting data (the computer programme) from them.
He also appeals against his sentence of six months periodic detention, a fine of $10,000 (of which $8,000 was ordered to be paid to the employer) and an order for payment of reparation of $5,000 to the Managing Director of LANSNZ, Mr Northwood.

Facts

The events giving rise to the charges occurred in September 1999 when LANSNZ, a company based in Stratford, was engaged in a number of Y2K compliance exercises in connection with water treatment plants in Taranaki. In particular, LANSNZ was working on the computerised equipment to control the motors and pumps and monitor the water levels in the Waimate West water treatment plant belonging to the South Taranaki District Council. This involved both the PLC and a computerised display unit (Citect). Mr Blick, a qualified electrical engineer, was employed by LANSNZ to design and install the new computer programme for the PLC. He had working under him a Mr Quickenden. Another team, led by Mr Northwood’s wife, Maree Brown, had responsibility for developing Citect. The two components, the PLC and Citect, had to work together. Mr Blick was engaged in the process of bench testing the PLC programme prior to interfacing it with Citect and then proceeding with installation and commissioning of the entire system. Obviously, in the circumstances in 1999 this work, together with like work on four or five other plants, was having to be done by LANSNZ against a contractual deadline set so that the systems would be ready at the time of the millennium.
On Friday 17 September 1999 Mr Blick, having completed a bench test of the new PLC programme, or, as he claimed, only two portions thereof, switched off both the internal battery and the mains power of the PLC. He admits having done this with the purpose of erasing the computer programme which had been under test. At the same time he deleted the copy of that programme from his laptop computer which had been used for the purpose of modifying the programme in the PLC. Mr Blick said in his defence that the material which he deleted was redundant; that it contained elements suitable only for bench testing which had to be removed before the programme could operate in a treatment plant and that the next step he intended to take was to produce a new programme using a hard copy print-out which had recorded on it certain modifications which he had decided must be incorporated into the programme. Mr Blick also had possession of a floppy disk containing an earlier version of the PLC programme (at a date in August) which could be used as a back up but, unlike the hard copy, it did not contain more recent modifications.
On Saturday 18 September Mr Blick made a booking in a false name (J Pickett) for travel by Top Cat ferry from Wellington to Picton on the following Monday. Later that day he booked return travel for 3 October. He subsequently made a different booking (in his own name) for travel to Picton on the Interislander ferry on Sunday 19 September. He claims that he had made plans for a holiday and a family re-union at the holiday home of his parents at Rimu Bay in the Marlborough Sounds and that Mr Northwood had given him permission to take a weeks leave.
He drove down to Wellington from his home in Hawera and crossed over to the South Island on the Sunday, taking with him a desktop computer and the laptop computer, both of which were the property of his employer. He had previously, with the employer’s approval, been using these at his home. He also took the floppy disk and a number of documents relating to the Waimate West plant including the hard copy of the PLC programme containing the modifications.
On arrival in Christchurch where his parents and his sister lived, Mr Blick says, he did some work on the desktop computer at his sister’s home. She confirms that.
It was the evidence of Mr Northwood that Mr Blick had not sought any leave for the week of 20 September and that “it would not have been an appropriate time to take leave anyway”. Ms Brown and Mr Quickenden gave evidence that they were expecting Mr Blick to be at work on Monday 20 September for the interfacing with Citect and final testing and commissioning of the PLC programme for Waimate West a few days later. Ms Brown had worked all weekend to ensure that Citect was ready for that event. She knew nothing of any leave arrangements. The office administrator, Mrs Anderson, also thought Mr Blick would be coming to work. On the Friday afternoon she had actually arranged with him that he would pick up a cheque from the Council in Hawera on the Monday morning on his way to work, although that plan was soon dropped when the cheque became available on the Friday afternoon.
Mr Northwood contacted the police because of concerns over Mr Blick’s welfare when he did not turn up on the Monday morning. His concerns increased when it was realised that the PLC programme had been erased and that the computers and documentation were not to be found. (Mr Northwood mentioned in his evidence later finding a version of the programme as at 13 August on LANSNZ’s server. That would seem to have been of limited use.)
At 6.45pm on Monday 20 September Mr Blick telephoned Mr Quickenden from Christchurch. He said he was in Auckland and that he had another job which he was considering taking and could be leaving LANSNZ very soon. Mr Quickenden testified that the appellant said he had been upset over a number of issues. In particular he had not been paid for relocation expenses and considered that he was “owed for 350 hours overtime”. Mr Quickenden had asked the appellant if he would see out the Waimate commission changeover. The appellant’s response had been to state that “it would be entirely dependent on how Larry [Northwood] played the game”.
Mr Blick’s parents were away at Rimu Bay. He stayed at his parents’ home on the Sunday night. He elected however, to spend the Monday night at a motel, booked in under the false name and giving a fictitious Dunedin address. He says he was with a woman he met in a bar that evening. (The Crown case was that the use of a false name was to conceal Mr Blick’s whereabouts in the period immediately after the time when LANSNZ could be expected to have discovered that he had gone missing.)
The next day, Tuesday 21 September, Mr Blick’s sister arranged for storage of some of the documentation in a commercial storage facility under her name, which is Gardenboek.
Mr Blick left the desktop computer with his sister and drove north, taking with him the laptop and the floppy disk. Although it is not entirely clear from the evidence, counsel on this appeal accepted that the modified hard copy of the PLC was left with the desktop computer. Mr Blick said he went tramping by himself from Wednesday to Friday.
LANSNZ considered it would be placed in a very difficult position with considerable adverse financial implications if Mr Blick did not forthwith return all items he had taken; that continuance of the situation would result in the company’s defaulting on its contractual obligations, possible financial failure and 12 staff losing their jobs. The company would not have been able to reprogramme the PLC from scratch within time to achieve the contractual deadline.
Mr Northwood called upon the services of a Mr Lowe, a debt collector. Contact was made by Mr Lowe on behalf of LANSNZ with Mr Blick’s father at Rimu Bay. There was evidence from Mr Blick Senior that on Wednesday 22 September he told his son that he had received “a funny phone call”. It is a reasonable inference that Mr Blick became aware that his employer was trying to contact him. Mr Blick Senior said he told Mr Lowe that his son was on holiday and that they had planned a family reunion. He said in evidence that this was planned about a week before Mr Blick arrived at Rimu Bay, which was on Friday 24 September. There was a further phone call from Mr Lowe on that day. He indicated that Mr Northwood was livid with rage.
Either over that weekend or on the following Monday morning the appellant buried the laptop computer and a briefcase containing, inter alia, the floppy disk in two separate locations in the bush some distance away from the holiday house. Mr Blick claims he did this because he was “worried [Lowe] might turn up and apply some of his stand over tactics against members of my family”. Lowe was “something of a heavy in Stratford”.
The police executed a search warrant at Rimu Bay in the presence of Mr Northwood and Mr Lowe on Monday 27 September. They did not find the laptop or the other buried items.
Mr Blick was arrested. In the course of a video interview at the Blenheim Police Station the same day he asserted several times that the company owed him money for overtime and reimbursement of expenses and appeared to be hinting that matters could be resolved if he was paid. He also said that he was prepared to “come back and do this work for the South Taranaki [District Council], but not as an employee of LANSNZ” and that LANSNZ could not do the work without his services. The video interview reveals considerable antipathy towards Mr Northwood.
The desktop computer and the documents were located in Christchurch but Mr Blick did not reveal the whereabouts of the laptop until 4 October when, after being held in custody, he led the police to where the computer and the briefcase had been buried.
LANSNZ subsequently engaged the services of a technical consultant who was able to find and recover the PLC computer programme (as at 14 September) from the hard drive on the laptop computer. It completed the project on time.
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.
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 conviction appeal

The grounds of the appeal against conviction were:
(a)Misdirection of the jury about the ingredients of the offences;
(b)Failure of the Judge in his summing up to properly put the defence case;
(c)Failure by trial counsel to follow instructions to call certain defence witnesses and arrange production of exhibits;
(d)Failure of trial counsel to put the defence case to Crown witnesses; and
(e)Failure of trial counsel to challenge the admissibility of portions of the video interview.
Privilege having been waived, the Court has before it a detailed affidavit of trial counsel, responding to affidavits from the appellant and two witnesses whom the appellant contends trial counsel should have called and, he says, was actually instructed to call. Trial counsel and the appellant were cross-examined at some length on their affidavits.

Alleged deficiencies in summing up

The appellant says that the Judge erred in three respects. First, he allowed the jury to have throughout the hearing and during its retirement a written set of directions, prepared by the prosecuting counsel, which did not accurately state the legal ingredients of the charges. Secondly, although the Judge endeavoured to qualify what was said in that document in his summing up, he himself misstated the law in certain respects. Thirdly, in summarising the defence case for the jury he misdescribed it.
The written directions applicable to the theft charges said that the Crown had to prove that the accused took the property dishonestly but did not say that this was a subjective test. They did not define colour of right. The written directions on criminal damage omitted any reference to s293(2) of the Crimes Act 1961 which provides:
(2) Nothing shall be an offence against any of the provisions of those sections unless it is done without lawful justification or excuse, and without colour of right.
However, when the Judge in his summing up turned to the law relating to the charges, he told the jury that he would express it slightly differently “from the way you have got it” and he asked them “to pay attention to what I say”. He then gave them a prescription of what had to be proved on the theft charges which contained the following passage:
The third element to be proved by the Crown, is that the taking was without colour of right, that is, without any honest but mistaken belief in a right to take it. The essence of the defence of colour of right is honesty of purpose. Where an accused person really believed he had the right to take the item, it is a good defence, even if he was mistaken in both fact and law. Similarly, an honest belief that the owner would have authorised the act, is a good defence. It is for the prosecution in this case to prove there is no colour of right. If as in this case, Mr Blick claims an honest belief of a right to take the items, however wrong he might have been, and you think that it is at least reasonably possible that that is what he truly believed at the time, you should acquit.
Although Mr Speed, in his careful and comprehensive submissions for the appellant, objected to the reference to authorisation, we do not think this direction was at all inappropriate to the case. The jury would have understood that if Mr Blick thought at the time that Mr Northwood would, if asked, have allowed him to take the computers to the South Island for the period of his holiday, his actions in doing so could not be theft. Likewise, if he thought that Mr Northwood would have refused permission, he would have known that he had no right to take them away. In reality, the issue related to whether the jury accepted that Mr Blick had been permitted to take leave. And, if the jury found that he retained the computers when he knew Mr Northwood was trying to recover them, there could then be no issue of colour of right from that point forward. The appellant was not at trial asserting any right of retention in that circumstance.
In his directions on criminal damage, the Judge said that if the jury was satisfied beyond reasonable doubt that Mr Blick had deleted the programme from the computers, then as a matter of law, that would amount to damage. Taken literally and in isolation, that is not correct, but Mr Speed quite rightly did not take this point because it is plain that the Judge did not mean that any deletion of a computer programme causes damage. In an immediately preceding passage he had put what he was saying in context by referring to damage in terms of “temporarily functionally, deranging the property or causing time or money to be expended to put it right, or impairing the value or usefulness of the property, or preventing the property from serving its normal function, or making the property imperfect or inoperative”.
The Judge dealt with the second element to be proved – that of wilfulness – and then said that the prosecution also had to prove
that there was no lawful justification or excuse for causing the damage and no colour of right to do so. Colour of right really means the same thing that I have just explained to you. If there was an honest, even if mistaken in law and fact belief, that it was alright, that it would have been authorised, then that is a complete defence. That question, whether there was any lawful justification or excuse and any colour of right, is the one which I think is at the heart of the issue for you to determine in relation to those two charges. It is again the mental element.
Mr Speed complained that the reference to authorisation may have misled the jury because Mr Blick could have been acting honestly in erasing the PLC programme even if he did not think that Mr Northwood would have authorised him to do so. We reject this submission. The reference to authorisation is linked with the action being “alright” i.e. a procedure which Mr Blick honestly if mistakenly thought was a proper step to be taken in the course of his work on the PLC. The jury would have been well aware from the evidence that it was Mr Blick, not Mr Northwood, who had the knowledge and expertise about the state of the programme and the appropriate method of work. The case had been put to the jury by both sides on the basis that, if it accepted Mr Blick’s evidence of an honest belief that he was acting properly or was left with a reasonable doubt as to his state of mind, he could not be guilty of wilfully damaging the computer.
Although the Judge was perhaps unwise to allow the jury to have the written directions during their retirement, what had to be proved by the Crown in the particular circumstances of the case emerged so clearly from his summing up that we have no concerns about their understanding of the legal ingredients of the charges.
There is nothing in the third matter raised for the appellant. The gist of the defence case is stated in the Judge’s summary. A particular paragraph to which counsel drew attention, which mentioned Mr Blick’s concerns about overtime and expenses and his contention that Mr Northwood brushed his concerns aside (which was not part of the defence case) was merely describing the background and must be read in light of what the Judge said in the paragraphs which followed. He made it clear that the defence was saying that leave had been expressly agreed to and indeed even suggested by Mr Northwood himself because of the pressure under which Mr Blick had been working. In particular, the Judge reminded the jury that Mr Blick’s position was that he had completed bench testing of two parts of the PLC programme, had deleted them both because they were the same versions and because, as he had modified the programme he had kept a marked up copy. He had taken that paper copy and the computers when he went away “to do more work on them”.
We are satisfied that the defence case was adequately put before the jury by the Judge.

Alleged failures of trial counsel

At trial the Crown set out to establish that Mr Blick took the actions of removing the computers and erasing the programme in order to put himself in a position to demand additional payment from his employer, failing which LANSNZ would face the consequences of not meeting its contractual obligations.

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.

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.
The Crown called an expert, Mr Durdle, to say that erasure would be inappropriate; that it would be a very time consuming process to get the process up and running again using the hard copy; and that it would involve at least two weeks work. In evidence in chief Mr Durdle said that erasure could not be justified from an engineering point of view. The defence had briefed its own expert, Mr Cools, who was available to travel to New Plymouth to give evidence. In an affidavit Mr Cools says that it is acceptable practice for an electrical engineer to delete a PLC programme during the course of bench testing and that information stored on a floppy disk and hard disks “with the right backup procedure” are more safe than when stored in a PLC processor that is moved around. Mr Cools believes that Mr Blick’s actions were justified “in the circumstances as described by him”. Obviously those circumstances included having adequate backup on disk. He makes no mention of backup by way of hard copy.
In the end, a decision was made not to call Mr Cools. Mr Blick gave evidence that he had given firm instructions for the calling of Mr Cools which were overridden by trial counsel. Having heard Mr Blick give evidence and having heard also from his trial counsel, we prefer the evidence of the latter to the effect that on trial counsel’s advice that he had obtained sufficient concessions from Mr Durdle under cross-examination, it was decided with Mr Blick that Mr Cools would not be called. There was a danger that Mr Cools would qualify his opinion to such an extent – by reference to the need for backup – that his evidence might be counter-productive.
We are satisfied that this is not a case in which counsel disobeyed his instructions. But it is also said for the appellant that the decision not to call Mr Cools, even if made with the concurrence of Mr Blick, was a radical error which has given rise to a miscarriage of justice (R v Pointon [1985] 1 NZLR 109, 114).
Having considered the evidence of Mr Durdle, in the context of the evidence as a whole, we do not accept this view. Trial counsel’s cross-examination of Mr Durdle had produced some significant concessions and qualifications. He was shown the modified hard copy, and accepted the possibility that at least one-third of the programme had not been bench tested and that, if that were so, the programme would not be ready for commissioning of the PLC within three days. He had also accepted that a bench tested PLC could have within it bits which could not be used in an operational PLC in a real water treatment plant. He had also conceded that he was not certain whether it was feasible to modify the PLC programme in this way in situ by overriding the existing programme with a new one without deleting the original.
It had been put to Mr Durdle that it would be reasonable to delete the bench test programme from the PLC if it had not been completely bench tested and there was available a corrected hard copy version and a copy of the pre-bench test version on a floppy disk and there was a bench test version of the programme on a personal computer. His response was that he saw no need at all to delete the programme within the PLC under those conditions but he agreed that it would not be “a big risk”. In this context the reference to risk clearly related to an earlier reference made by the witness to the risk of making typing or transcription errors when working from a hard copy programme. (Trial counsel was criticised for introducing the concept of “risk” but plainly it originated from the witness.)
Earlier counsel had also obtained admissions from the witness that he did not have familiarity with the particular PLC or programme nor had he examined the floppy disk backup versions of the programme or the desktop computer on which the programme had been written. He had also accepted that the PLC programme would need to be almost completely bench tested before the interfacing with the Citect system could be checked out.
We think it was not unreasonable for counsel to take the view that he had obtained sufficient by way of concessions from Mr Durdle to raise a reasonable doubt about the readiness of the PLC programme and a reasonable doubt about the appellant’s allegedly malicious motivation. He had obtained a concession that Mr Blick’s method, involving erasure of the PLC and building up again from the hard copy, was “workable” and did not involve a big risk. In re-examination Mr Durdle had repeated that he could still see no engineering justification for the deletion of the programme, but clearly he had been forced to give some ground.
Counsel was faced with a difficult choice in deciding whether to call Mr Cools. He had to make a tactical decision. If Mr Cools gave evidence he was likely to say, as he had already told trial counsel, that the practice which Mr Blick said he had followed was not common. He would also have had to concede that there was a transcription risk and that modification of the programme without deleting it was an available practice. There was also a danger that, if pressed, he would concede that his views were based upon adequate backup being available. In fact the only backup was an out of date version on a floppy disk and the hard copy which, according to Mr Blick, had been kept up to date with modifications. It is not suggested that Mr Cools would have said that this could quickly be translated into the PLC.
Trial counsel had been in communication with Mr Cools before cross-examining Mr Durdle (there was conveniently an overnight break between the evidence-in-chief and the commencement of cross-examination) and, guided by Mr Cools, had extracted from Mr Durdle much of what Mr Cools would have been able to say. Both men were to a large extent reliant upon what Mr Blick had told them about his methodology.
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.
It is also said for the appellant that trial counsel erred in failing adequately or at all to put to Crown witnesses that the PLC programme was not ready for interfacing with Citect, and thus that holiday leave was a possibility. The fundamental point is of course that, whether or not this was so, four people with whom Mr Blick worked said that they were expecting him at work. Mr Northwood said he had not given or even been asked about any leave. Ms Brown had worked all weekend to ensure Citect was ready and would hardly have done so if she thought Mr Blick was going to be away on holiday. Mr Quickenden and Mrs Anderson had spoken to Mr Blick on the Friday and thought that he would be in the office in Stratford on Monday morning.
Mr Blick alone could know the true position about the readiness of the PLC. The others were not expert on that programme, even Mr Quickenden. In fact, in the video interview Mr Blick was very dismissive about the knowledge of Mr Quickenden concerning work of this type.
By cross-examining on the readiness of the programme trial counsel ran the risk that all he would do was to strengthen the impression the jury must have gained that Mr Blick was the only person with knowledge of the true position and that he had led the others to believe that the programme was tested and ready for interfacing. In fact, when counsel asked Mr Quickenden about the use of certain data in completing sections of the PLC programme, the witness said that he did not know enough about the programme to comment. He gave a similar answer when asked about the presence of simulation codes etc.
Perhaps the most difficult point for Mr Blick’s defence to overcome on this issue was the evidence of Mrs Anderson that on Friday afternoon Mr Blick had at one point agreed to pick up a Council cheque and bring it to Stratford when he came in from Hawera on the Monday. Even if it were to have been suggested that Mr Northwood and Ms Brown had reason to conceal the true position (although we do not accept that this was so) and that Mr Quickenden was in league with them or simply misunderstood the position, Mrs Anderson’s evidence, if accepted by the jury, showed that Mr Blick had indicated to her that he would be at work on Monday. Trial counsel did cross-examine her but she was not shaken.
It was also submitted that trial counsel failed to ask Mr Blick Senior in evidence-in-chief about the family reunion, which the appellant said had been planned and which would have supported his assertion that he had sought and obtained Mr Northwood’s agreement to take leave. But in fact in cross-examination of Mr Blick Senior it emerged that the reunion had been arranged only about a week before Mr Blick’s arrival at Rimu Bay, namely about the time of his last day at work. It is also to be noted that the first purchase of ferry tickets was not made until the Saturday (and then a false name was used). In his affidavit in this Court Mr Blick has exhibited the brief of evidence supplied to his trial counsel. We note that it records that on his arrival in Christchurch on Sunday 19 September he had rung his sister “and told her I was down in Christchurch on holiday”. It would have been perfectly reasonable for counsel to have formed the view that the sister knew nothing of the holiday until Mr Blick’s arrival. There is nothing elsewhere in the brief supporting the contention that the holiday was pre-arranged with the Blick family. Counsel was criticised for not arranging production of certain toll records showing calls from Mr Blick to his parents but obviously they would not provide any proof as to the content of the conversations.
The supposed pre-planning of the holiday and reunion was really supported only by Mr Blick’s own version of events.
The final matter of criticism of trial counsel was that he had failed to call a real estate agent, Mrs Judd, and arrange production through her of photographs (taken by Mr Blick) showing that his furniture and effects remained in his Hawera flat. But as the Crown at trial did not argue that Mr Blick had abandoned the flat and a police officer who inspected it was effectively cross-examined to show that the appellant had not removed all his possessions, this evidence would have been of little assistance.
The further argument was advanced that trial counsel had erred in failing to arrange for deletion of certain portions of the videotaped interview. This point is not at all persuasive. Whilst the video interview evidence was undoubtedly likely to have been damaging, the problem which it presented for the defence did not arise from the passages to which counsel drew attention. They in fact appear largely unobjectionable and contained nothing of any significance which was not already before the jury from other sources.
We are not persuaded that trial counsel’s conduct of the defence case involved any error of judgment giving rise to a miscarriage of justice.

Sentence appeal

The appeal against sentence related to the fine of $10,000 and the order for the appellant to pay Mr Northwood $5,000 in reparation. It was submitted that this monetary penalty, in addition to six months periodic detention, was manifestly excessive particularly when it was said for the appellant that LANSNZ had received substantial benefit from his hours of overtime work for which he had not been remunerated.
In response, for the Crown, Mr Gresson submitted that the penalty could in fact have been much greater and could have involved a sentence of imprisonment. There had been a gross breach of trust committed with spiteful motive (a desire to financially ruin LANSNZ and its directors), with a degree of planning and efforts to avoid detection. There had been substantial financial cost to LANSNZ as was shown by a reparation report. Mr Northwood had personally suffered stress resulting in ulcers requiring medical treatment. The offending had exacted a heavy physical and emotional toll upon him.
Mr Gresson did, however, concede that the terms of s28(2)(b) of the Criminal Justice Act 1985 do not permit the ordering of part of a fine to be paid as compensation to a victim unless the offence arose out of an act or omission that occasioned “physical or emotional harm” to that person. Consequently the Crown had to accept that as the company, LANSNZ, could not suffer physical (i.e bodily) or emotional harm, that part of the Court’s order could not stand.
We consider that it has not been shown by the appellant that the overall level of financial penalty is excessive, even allowing for the periodic detention sentence. In the circumstances in which it occurred and in view of the apparent motive, the offending must be regarded as very serious. A fine of $10,000 and an order for payment to Mr Northwood of $5,000 were not excessive. In the absence of any proof that the appellant was legally entitled to be paid overtime (despite the fact that he was on a salary which had recently been substantially increased), his claim for such payment was not a factor to be taken into account.
Although we must set aside the order for payment of $8,000 of the fine to LANSNZ, we do not regard it as appropriate to disturb the level of the fine, all of which will now be payable to the Crown.

Result

The appeal against conviction is dismissed. The appeal against sentence is also dismissed but the order for payment of part of the fine to LANSNZ is quashed. The sentence of periodic detention is now to re-commence, as from the next reporting day.

Solicitors:

Crown Solicitor, Timaru

[2001] NZCA 269

4 September 2001