Benjamin v R [2012] NZCA 9 (13 February 2012)

Last Updated: 23 February 2012

IN THE COURT OF APPEAL OF NEW ZEALAND

CA897/2010 [2012] NZCA 9

BETWEEN MARK JOSEPH BENJAMIN Appellant

AND THE QUEEN Respondent

Hearing: 8 November 2011

Court: Wild, Chisholm and Potter JJ

Counsel: AVG Rogers and I C Bassett for Appellant M D Downs for Respondent

Judgment: 13 February 2012 at 2.30 pm

JUDGMENT OF THE COURT

The appeal against conviction is dismissed.

___________________________________________________________________

REASONS OF THE COURT

(Given by Chisholm J)

____________________________________________________________________

TABLE OF CONTENTS

Introduction	[1]
Background	[4]
District Court Trial	[18]
The audit report issue	[19]
Admitted facts	[24]
Prosecution evidence	[25]
Defence evidence	[31]
Judge’s verdict	[42]
The defendant’s DVD statements	[44]
Counts one to four: The counts relating to the increase in salary payment	[46]
Holiday pay: Counts 5 and 6	[49]
Admissibility of the entry on 31 July 2006 of the reduction in salary from $14,583.33 to $13,750	[52]
So who made the crucial change to the salary of the accused which became effective on 31 July 2006?	[55]
Relevant appellate principles	[61]
Evidence in support of the appeal	[64]
Mr Benjamin’s primary affidavits	[65]
Other affidavits	[67]
The counsel error allegation	[74]
The salary increase	[76]
Reliability/manipulation of the Comacc payroll system	[87]
The “revenge” defence	[99]
Character evidence	[104]
Conclusions as to trial counsel error allegations	[106]
Prosecutorial misconduct	[108]
Error by Judge	[114]
Result	[116]

Introduction

[1] Following trial before Judge Wilson QC sitting alone in the Auckland District Court, Mr Benjamin was found guilty on seven counts of obtaining a pecuniary advantage by accessing a computer system without claim of right and for a dishonest purpose contrary to s 249(1)(a) of the Crimes Act 1961.[1] He was sentenced to 200 hours community work and was ordered to pay reparation of $18,681.
[2] Mr Benjamin appeals against conviction on the ground that there has been a miscarriage of justice by virtue of any one or more of the following:

• (a) errors on the part of trial counsel;
• (b) prosecutorial misconduct;
• (c) a finding by the Judge which cannot be supported having regard to the evidence.

There is no appeal against the sentence.

[3] A vast quantity of affidavit evidence has been lodged in support of the appeal. This includes three affidavits from Mr Benjamin and 15 affidavits from other people covering a wide range of matters. Four affidavits were adduced by the Crown, including affidavits from the prosecutor and both trial counsel. The appellant and all the Crown deponents were cross-examined before us.

Background

[4] Between 9 January and 11 August 2006 Mr Benjamin was employed by Kerry New Zealand Limited (Kerry) as its chief financial officer. He had been a chartered accountant since 1990 and holds B Com and MBA degrees. Immediately before taking up this employment with Kerry Mr Benjamin had been the financial manger for a fertiliser company. Earlier he had been an auditor. He does not have any previous convictions.
[5] Kerry is an Auckland based company involved in the import and export of various products. At all relevant times its majority shareholder was based in Singapore and Mr Spence senior, a shareholder in the company, was its managing director, based in Auckland. Negotiations as to Mr Benjamin’s salary were conducted between Mr Spence and Mr Benjamin.
[6] When Mr Benjamin joined Kerry one of his roles involved the payment of salaries, including his own, through a computer system that used Comacc payroll software (the computer system). It is common ground that Mr Benjamin’s commencing salary was $165,000 per annum, payable monthly ($13,750 per month). His salary payments for January and February 2006 were at the rate of $13,750 per month.
[7] It was the Crown’s case that between 1 March and 31 July 2006 Mr Benjamin used the computer system to pay himself a salary equivalent to $175,000 per annum ($14,583.33 per month) to which he was not entitled, knowing that this was not his correct salary. Counts 1–4 relate to the payments made in the months of March to June 2006, during which it is alleged that Mr Benjamin obtained an unauthorised increased payment through the payroll system. As we will explain shortly, count 6 is in a similar category.
[8] Mr Benjamin accepted that he had used the computer system to pay himself the increased salary. His defence was that he honestly believed that he was entitled to the increased payments because after he had commenced employment Mr Spence had orally agreed that his salary would be increased to $175,000 per annum. Mr Spence denied that there was ever any such agreement.
[9] Count 5 concerns holiday pay. Mr Benjamin took five days leave at the end of June 2006 and the allegation was that he had used the computer system to obtain $3519.15 by way of holiday pay to which he was not entitled. This was because the holiday pay had been added to his salary payment for the month rather than being deducted from it. In addition there was an underlying allegation that the holiday pay was based on a salary of $175,000 per annum rather than $165,000 per annum.
[10] Mr Benjamin’s defence to count 5 was that he had not previously used the holiday pay function in the computer system. The error arose because he was unfamiliar with the idiosyncrasies of the system and he made a genuine mistake which caused the computer system to add, rather than deduct, the holiday pay. He noted that he had made a similar mistake in relation to the holiday pay of at least two other employees.[2]
[11] While the particulars relating to count 6 also refer to an overpayment of holiday pay, the situation is different. At the beginning of July 2006 Mr Benjamin took five days leave, back-to-back with the five days at the end of June. However, unlike the June calculation, the July calculation made the necessary adjustment to salary. Mr Benjamin said that this was because by the time he was processing the July payment he had discovered the June error and was able to make the correct calculation for July. Thus the only allegation arising from the July payment is that it was based on a salary of $175,000 to which he was not entitled.
[12] Before moving to count 7 we will make brief reference to a computer generated employee record concerning Mr Benjamin, which we now reproduce.

According to the Crown these entries demonstrate that on 31 July 2006 Mr Benjamin reduced his salary from $14,583.33 per month back to his initial salary of $13,750 per month. He did this because he knew that he was leaving Kerry and he wanted to cover his tracks.[3]

[13] Mr Benjamin accepted that he had made the entry on 31 July 2006 reducing the rate of salary from $14,583.33 to $11,218.46 to reflect the five days holiday that he had taken but he did not accept responsibility for the other entry relied on by the Crown. Indeed, he challenged the reliability of that entry and the alleged manipulation of the system. This gave rise to an admissibility issue in terms of s 137 of the Evidence Act 2006, to which we will return.
[14] The last count (count 7) arises from the final payment totalling $48,365.50 made to Mr Benjamin when he left Kerry on 11 August 2006. The payment comprises an agreed termination payment of $30,000, proportionate salary for the month based on $13,750 per month, expenses, and holiday pay of $12,673.47, less tax. The Crown alleges that there was an overpayment because the calculation had been made as if no holidays had been taken, whereas in fact Mr Benjamin had taken 10 days leave.
[15] Mr Spence junior actually keyed in the information giving rise to this final payment on Mr Benjamin’s computer and under Mr Benjamin’s supervision. Mr Benjamin’s defence was that he had not accessed the computer, or caused it to be accessed, for the purpose of obtaining any overpayment and, being unaware of the precise breakdown, did not notice any discrepancy. He also disputed the reliability of the computer evidence and claimed that he had been “set up” by Mr Spence senior and Mr Spence junior.[4]
[16] When investigating a payroll problem in mid October 2006 Mr Spence junior printed off the payroll records of employees, including terminated employees. He found that whereas there was a record of the changes associated with the pay of other employees, there was no corresponding record for Mr Benjamin, except as to his final pay. With the assistance of the Comacc help desk he was able to recover the record of changes relating to Mr Benjamin (the employee maintenance notes).
[17] After attempts by Kerry to recover the alleged overpayment failed a complaint was lodged with the police in May 2007. Mr Benjamin was interviewed by the police in July and August 2008 and the charges were laid.

District Court trial

[18] Given the issues raised on appeal it is necessary for us to begin by mentioning a matter that arose before the trial began.

The audit report issue

[19] Originally the trial was to proceed on 14 April 2010. However, it was adjourned (ultimately to 15 November 2010) at the request of the Crown because their expert, Mr Grattan, wanted to access some backup material from the Comacc data base.
[20] When that material was provided to the defence their expert, Mr Desouza, noticed that there were inconsistencies between the backup material and material already held by the defence. He also noted that the backup notes that had been supplied could be deleted, edited, or added to very easily. Given that situation counsel for the defence decided that the evidence needed to be challenged under s 137 of the Evidence Act.[5]
[21] A few days before the trial was scheduled to begin the Crown lodged an application under s 344A of the Crimes Act 1961 seeking an order that various computer records, including the print out relating to 31 July 2006 reproduced above,[6] were admissible. This issue had not been resolved on the morning of 15 November 2010 when the trial was due to begin. The Judge stood the matter down so that counsel and the experts on each side could confer. As a result of that meeting it was decided that what was described as an audit report (the audit report) was required because it was believed that it could resolve the reliability and admissibility issue one way or the other. The case was adjourned until the next morning to enable that report to be obtained and considered.
[22] The next morning counsel reported to the Judge that the audit report did not appear to carry the matter of the reliability of the computer records any further and that they were still apart on that issue (and thus the admissibility of the computer records in question). It is apparent from the transcript that the Judge was given the audit report and that it was discussed with him. Whether or not it was handed back by the Judge is unclear, but we think that this is unlikely.
[23] We have recounted this history because it is alleged that the audit report gave rise to prosecutorial misconduct. The actions of defence counsel in relation to that report are also criticised. We will be returning to those matters.

Admitted facts

[24] Various employee records relating to Mr Benjamin and two other employees (Mr Lowe and Mr Kreft) were admitted. It was also agreed that:

• (a) on 15 May Mr Benjamin had made a call to the Comacc help desk and that the help desk notes recorded that he wanted to know how to make alterations to holiday records for the employees as they (Kerry) had been keeping the holiday records manually;
• (b) in March 2006 Mr Lowe received an increase in his remuneration in the form of a car allowance which was not recorded in writing; and
• (c) Mr Benjamin had left New Zealand on 24 June and returned on 10 July 2006.

Prosecution evidence

[25] Four witnesses gave evidence for the prosecution: Mr Spence senior, Mr Spence junior, Mr Grattan, and Detective Sergeant Laagland, the officer in charge of the case.
[26] Mr Spence senior gave evidence about employing Mr Benjamin as chief financial officer; Mr Benjamin’s role in relation to the payment of salaries through the Comacc system; access to the payroll system; the fact that he did not agree to any increase in Mr Benjamin’s salary; and the fact that no one else had authority to do so.
[27] Mr Spence junior described the circumstances surrounding the termination payment on 11 August 2006. He said that he was sitting directly in front of the computer doing all the entries and Mr Benjamin was sitting beside him. Once the system came up with the main payroll scheme Mr Benjamin “basically instructed” him what to do and from there Mr Benjamin’s final pay for the month of August was calculated. He said that he definitely gave the payslip to Mr Benjamin. Mr Spence also described the circumstances surrounding the restoration of Mr Benjamin’s employee records in mid October 2006.
[28] The Crown expert, Mr Grattan, gave evidence about the integrity of the Comacc data relating to Mr Benjamin’s payroll records. He said that he had compared the exhibits before the Court with the payroll tables retained within the system, and had also checked whether the payroll backup file that he had received in April 2010 had been compromised. Although he did not find any evidence of “corruption”, he accepted that the employee maintenance notes could be amended, deleted or created.
[29] With reference to holiday pay Mr Grattan formed the view that the pattern of increases and decreases indicated that the operator was amending the salary each pay period in order to pay the higher salary and then reduce the salary after the payment was made. He considered that anyone with a basic accounting background would “easily be able to identify an overpayment of holiday pay from the payslip or from the standard payroll reports produced with each pay run”.
[30] Detective Sergeant Laagland gave evidence about his interviews with Mr Benjamin and videos of the interview were played.

Defence evidence

[31] Both Mr Benjamin and the defence expert, Mr Desouza, gave evidence for the defence.
[32] Mr Benjamin described his lack of familiarity with the Comacc system and the absence of any guidance about how it operated. Although he expected that he would have a supervisory function in relation to the payroll, he had not expected that he would be “hands on”. Apart from one previous occasion, he had not had any experience with the Comacc payroll. His impression was that things were “in a bit of a mess”.
[33] It was Mr Benjamin’s evidence that Mr Spence senior had agreed on or about 6 March 2006 to his salary being increased. Discussions concerning increases of salary had concerned three people: himself, Mr Lowe and Mr Kreft. Mr Lowe and Mr Kreft were each given increases of $21,000[7] and he was given an increase of $10,000. He had sought an increase of $15,000 (to $180,000) per annum. None of the increases were recorded in writing.
[34] As a result of the increases, he made what he thought were the necessary changes to the payroll. However, because he was unfamiliar with the system he encountered difficulties. He thought that he had loaded permanent changes for himself and Mr Lowe into the system but it turned out that they were only temporary changes,[8] and it took two months for him to “get it right”.
[35] Legislative changes meant that it was also necessary for him to address holiday pay issues. Again he encountered problems and on 15 May 2006 he contacted the Comacc help desk so that he could understand how the holiday pay balances for each employee could be fixed. He then attempted to implement the changes for all the employees by working through the alphabet. He was unaware that he was not doing it correctly until he got to the employee Wayne Olds, at which point he found that he had in fact doubled Mr Olds’ pay. Then he tried to work out what was wrong and:

...realised that this was obviously, well I wasn’t meant to follow the default, I was meant to change to “reduce salary”.

This was a reference to the information that would come up on the computer screen which included a “reduce salary” option. If that option was not taken the holiday pay default option would come into play and the holiday pay would be automatically added to the salary.

[36] Having identified the problem he then set about correcting it, starting at the bottom of the alphabet. But progress was interrupted and he did not complete the task and his record was never corrected. Stresses at the time, including flooding of the building, were described by Mr Benjamin.
[37] Turning to the final payment on 11 August 2006, Mr Benjamin said that it was a very busy day and he was trying to finish the July accounts. He was with Mr Spence junior who was operating his computer when the final payment was calculated. He could not recall actually receiving the payslip but he thinks that he would have seen it. He believes that he would have seen the amount of money and thought that it was “roughly right”.
[38] Mr Desouza explained that in the Comacc payroll system notes relating to permanent changes to data show the actual date when the change is made. On the other hand, temporary changes made during the payroll preparation default to the last day of the pay period then open.
[39] With reference to the notes relating to 31 July 2006,[9] Mr Desouza considered that it appeared to be a temporary change. He noted that the July payslip showed payment at the base salary of $14,583.33. This caused him to doubt the system’s integrity and to wonder if the note had been altered in some way. He commented that in general the notes were “very unreliable” because it was possible to delete them, edit the text, date or note type, or add to them, without leaving a trail. In addition, it is possible to insert notes dated in the past.
[40] Mr Desouza said that when processing holiday pay the Comacc system:

... defaults to adding the holiday pay to the normal pay, with the default being “do not reduce salary”... so the payroll operator must override the default and ask to reduce the pay. Even well trained payroll operators make this mistake if they are in a hurry or distracted. A simple double click or hitting enter will cause this error.

It was also noted by Mr Desouza that if an operator enters the holiday dates in the calendar in the wrong order and then corrects them the system will in some instances “skip” displaying the “pop up” asking the operator to reduce the salary.

[41] Finally, with reference to the termination holiday pay, Mr Desouza noted that the failure to deduct the holiday pay that had been taken from the termination holiday pay could be the result of a “change at some stage or an error in the termination holiday process”. He believed that this particular termination process was flawed.

Judge’s verdict

[42] Counsel delivered their closing addresses on 22 November 2010.
[43] Judge Wilson delivered his verdict on 24 November 2010. He began by traversing the legal principles and various other matters. Because these matters are not in dispute it is unnecessary for us to make reference to them. From this point we utilise the headings used by the Judge.

The defendant’s DVD statements

[44] The Judge noted that Mr Benjamin had given two separate interviews. He commented that the first interview contained much material that was inadmissible and that it also contained:

[13] ... detailed criticisms by the accused of his former employers including allegations of improper conduct, none of which was put to the managing director Mr H O Spence when he gave evidence.

Exercising the discretion conferred by s 92 of the Evidence Act, the Judge determined that these untested allegations carried “very limited” weight.

[45] With reference to the second interview the Judge commented that it amounted to little more than an opportunity for the officer in charge to put his views about what had happened to Mr Benjamin and that often those views were not accepted. The Judge decided that those assertions were inadmissible and he took no account of them.[10]

Counts one to four: The counts relating to the increase in salary payment

[46] Two questions were posed by the Judge: whether the accused received a salary increase; if not, whether he genuinely believed that he had.[11]
[47] Having recorded the competing arguments the Judge accepted Mr Spence senior’s evidence and found that the salary increase was never authorised. Mr Benjamin’s evidence to the contrary was rejected. As the Judge saw it, Mr Benjamin was disgruntled at his treatment and used the increase in the car allowance for the other two men as an opportunity to improve his own position without authority. The Judge noted that Mr Benjamin accepted that he had made the changes referred to in counts 1–4 and found that Mr Benjamin had done this dishonestly and without claim of right.[12]
[48] Judge Wilson concluded that Mr Benjamin’s explanation for his conduct was “a fabrication”. He considered that this conclusion was supported by the “critical” entry in the pay records for 31 July 2006 which changed Mr Benjamin’s salary from the unauthorised $14,583.33 per month to the actual salary of $13,750 per month. [13] The Judge also observed:

[26] ... There is the striking fact that Mr Benjamin never complained that he was paid out on the basis of the original salary on termination. He did not complain because he knew that his salary increase was not authorised and he had made the late change to hide the truth.

Mr Benjamin was found guilty on counts 1–4.

Holiday pay: Counts 5 and 6

[49] The Judge accepted that the adding of holiday pay to income was caused by the default loading on the holiday pay screen which was activated when Mr Benjamin pressed “enter”. However, he noted that Mr Benjamin had not explained why he did not act on the “pop up box headed ‘Reduce Salary’ right from the start”.[14]
[50] Judge Wilson then recorded Mr Benjamin’s explanation that he had realised there was a problem with holiday pay when processing Mr Old’s pay and set about correcting it. He noted that “The one case on the evidence where the appropriate adjustment was never made was his own”.[15]
[51] Then the Judge observed that Mr Benjamin had:

[30] ... corrected the Kreft and Lowe records but somehow skipped his own through ‘mistake’ so that only he benefited. This explanation is incredible for a highly qualified, well paid Chartered Accountant with a background in auditing payrolls, and I reject it as unworthy of belief. Mr Benjamin made a deliberate choice to continue to add his holiday pay while, as proper practice required, deducting it for other employees. This was not a mistake and was not excused by claimed pressures of work.

[31] He attempted to explain some entries making temporary changes to his salary by claiming that he was running tests for entering data using his own record. This was not approved practice but he said he preferred it to using a fictitious name which he felt would cause problems with auditors. Assuming he was, as counsel said, experiencing difficulty in operating the system that could be for only a short period for a man of his acumen and experience. He accessed the help desk only once on 15 May and thereafter he had all the information he needed to get it right.

[32] The flow on effect of the unauthorised increase in salary and the failure to correct the error in the way he treated his own holiday pay was to improperly increase holiday pay for the June 2006 period (count 5) and the July 2006 period (count 6). There is no dispute that Mr Benjamin entered the effective data which produced this result.

[33] With respect to Mr Edgar’s well put argument, there is no room for mistake here or inexperience as a justification for deliberate changes to the data in the payroll system and his failure to correct a known wrong treatment of holiday pay.

Mr Benjamin was also found guilty on those counts.

Admissibility of the entry on 31 July 2006 of the reduction in salary from $14,583.33 to $13,750

[52] After commenting that this question had been reserved at the beginning of the trial so that it could be determined in light of all the evidence, the Judge noted that as the trial progressed the issue of admissibility crystallised into the single entry under consideration. He said that there was no suggestion that the system was unreliable in any other respect.[16]
[53] Noting that the defence case as to unreliability was based on Mr Desouza’s evidence, the Judge said that he was concerned that Mr Desouza had not undertaken any background checks to see whether there was any actual evidence of alteration to the record for 31 July 2006. The Judge said that he was impressed by Mr Grattan’s careful analysis and, where there was a conflict, he preferred Mr Grattan’s evidence to Mr Desouza’s evidence.[17]
[54] In terms of s 137 of the Evidence Act the Judge was satisfied that the Crown had established that the Comacc payroll system automatically did what the Crown asserted it would do and that the statutory presumption applied. The evidence was admitted accordingly.[18]

So who made the crucial change to the salary of the accused which became effective on 31 July 2006?

[55] Having posed that question the Judge embarked on a process of elimination. He considered that it could not have been Mr Spence senior: the proposition had not been put to him, and Mr Spence had given unchallenged evidence that he had no involvement in the payroll system and did not know how to operate it.[19]
[56] Then the Judge turned his attention to Mr Spence junior. He noted that it had been put to Mr Spence under cross-examination that he had:

[45] ... adulterated the record based on the proposition that he was unhappy with majority shareholders taking over the company, and the loss of the inheritance he might have made through his father’s shareholding.

Judge Wilson said that he had “no hesitation” in accepting Mr Spence’s answer that he was actually quite happy about the majority shareholder taking over the company and that it was actually a big relief to be paid out some money. The Judge concluded that given that the changes to the record were all made solely for the benefit of Mr Benjamin there was no logical reason why Mr Spence should adulterate the record.[20]

[57] The possibility of someone else, other than the accused, having changed the salary record was then considered. The Judge found that there was no evidence of anyone else having the necessary knowledge of, or access to, the computer programme. Nor could he see any merit in that proposition.[21]
[58] Finally, the Judge considered whether Mr Benjamin had made the changes. He noted evidence indicating that Mr Benjamin was the only person who had access to the payroll system. A number of findings of fact were made: Mr Spence Junior did not take over the payroll system until after Mr Benjamin left; Mr Benjamin was aware that he was about to lose control of the payroll; he feared that Mr Spence Junior might notice that his salary was otherwise than as had been agreed; he changed it back to conceal the unauthorised higher payments; he made the change for the dishonest purpose of concealing the unauthorised payments; he tried to cover his tracks by deleting the employee maintenance notes; and he did not realise the notes could be restored.[22]
[59] Further findings were made in relation to the termination payment on 11 August 2006: this payment was made under Mr Benjamin’s supervision and Mr Spence was his “instrument”; the payment was as if the 10 days leave had not been taken; Mr Spence had printed off the payslip and handed it to Mr Benjamin; and Mr Benjamin had prevaricated on that issue.[23]
[60] Count 7 was also found to be proved.

Relevant appellate principles

[61] Given the volume and content of the material that has been presented in support of this appeal, it is necessary for us to discuss the principles that will dictate the extent to which we can have regard to that material.
[62] In Witehira v R[24] this Court considered whether wide ranging affidavit evidence should be admitted on appeal where one of the appeal grounds was trial counsel error. The Court decided that evidence of counsel error may be admitted without leave, but:

[37] ... additional evidence [the appellants] say they and others could have given ... must ... be evaluated in terms of freshness, credibility and cogency.

This reflects that to admit evidence on appeal that was known to exist before the trial would be effectively to allow a re-run of the trial on a different basis and our system of justice requires that an accused “puts up his or her best case at trial”: R v Kingi.[25] Similarly, this Court cannot allow post-trial “shopping” for another expert to challenge directly relevant expert evidence that was admitted at trial and cross-examined on: Wallace v R.[26]

[63] The Supreme Court decision in Sungsuwan v R[27] explains the principles that we will need to apply when considering the allegation of counsel error:

[65] Where error or irregularity is alleged and attributed to counsel, but that would not have affected the outcome — was not material — there will be no need to analyse and judge the conduct of counsel. On the other hand, where the complaint is that counsel's conduct was such as effectively to deny the accused representation to fairly present the defence, prejudice to the outcome will be readily found — and in extreme cases may need no enquiry.

[66] There will be cases in which particular acts or omissions of counsel may in retrospect be seen to have possibly affected the outcome but they were deliberately judged at the time to be in the interests of the accused. In some cases the accused will have agreed or acquiesced — only to complain after conviction. Where the conduct was reasonable in the circumstances the client will not generally succeed in asserting miscarriage of justice so as to gain the chance of defending on a different basis on a new trial. Normally an appeal would not be allowed simply because of a judgment made by trial counsel which could well be made by another competent counsel in the course of a new trial.

[67] But there will be cases, rare cases, as was recognised in Pointon, where the conduct of counsel, although reasonable in the circumstances in which it occurred, nevertheless can be shown to have given rise to an irregularity in the trial that prejudiced the accused's chance of acquittal (or conviction of a lesser offence) such that the appeal court is satisfied there was a miscarriage of justice. The court will always reserve the flexibility to identify and intervene to prevent a miscarriage of justice however caused.

[68] Often these cases will be able to be analysed without examining the quality of counsel's conduct. For example, where the effect was that vital evidence was not placed before the jury it might be appropriate to enquire directly whether that gave rise to a miscarriage of justice, although that will need to be considered in light of principles governing the admission of further evidence on appeal, including any explanation for its absence from the trial.

[69] It is necessary to emphasise that the statutory ground of appeal justifying intervention is that there was a miscarriage of justice. That was clearly recognised in Pointon. The focus therefore is on outcome, with the cause providing context.

Evidence in support of the appeal

[64] As we have already mentioned, extensive affidavit evidence has been adduced in support of the appeal. We now outline that evidence, but without attempting to reach any conclusions as to admissibility.

Mr Benjamin’s primary affidavits

[65] Mr Benjamin’s first affidavit comprises 86 pages. It includes a detailed narrative of events arising out of his employment at Kerry in 2006, of the trial, and of some post trial matters. As we understand it, one of the purposes of this affidavit is to demonstrate that he was inadequately briefed by trial counsel and that his evidence could have been more comprehensive. Another purpose is to explain why he believes that his lawyers erred by not briefing or calling some other witnesses. The evidence also provides a context for the allegations of prosecutorial misconduct.
[66] The second affidavit has 61 pages. It addresses the additional evidence that Mr Benjamin considers was available to defence counsel prior to trial but was not briefed by them or called. It also addresses: whether Mr Spence senior had agreed to a salary increase; Mr Benjamin’s assertion that he made an honest error in relation to holiday pay; he did not access the computer on 11 August 2006; the Comacc computer notes were unreliable and had been manipulated; the failure of the prosecutor to disclose that the computer records had been manipulated; and Mr Benjamin’s instructions to his lawyers.

Other affidavits

[67] In addition there are affidavits from 15 other deponents. The first two deponents (Mr Lowe and Mr Lang) were Kerry employees.
[68] Mr Lowe was the IT manager/management accountant at Kerry. Amongst other things he refers to his salary increase; the disruption caused by the flooding of the Kerry office in May 2006; his belief that information provided by Mr Benjamin to the Singaporean shareholder resulted in an internal audit of Kerry in 2006; instructions from Mr Spence senior that communications with the Singaporean shareholder were only to be through Mr Spence; and other matters.
[69] This affidavit also refers to the use that could be made of Mr Benjamin’s computer. Mr Lowe recounts that he accessed Mr Benjamin’s computer in mid 2006 when Mr Benjamin was on leave because he was curious about Mr Benjamin’s salary. He said that he recalled “clicking on one of the fields and the number that was previously there ... then became blank”. He believed that it was the holiday pay accrual field that he had entered and that his clicking had changed it to zero. He then tried to calculate what the number would have been in that field.
[70] Mr Lang was employed at Kerry as its retail/factory accountant. He describes Mr Spence junior’s knowledge of the Comacc wages payroll. He also covers other matters including the flood, his salary review, and restrictions imposed by Mr Spence senior on the provision of information to the Singaporean shareholder.
[71] The next group of deponents comprises: Mr Riddell, Mr Benjamin’s former employer, who deposes that in January 2006 he asked Mr Benjamin to return to his former employment; Ms Death who, having previously worked with Mr Benjamin in an organisation that used the Comacc payroll system, said that he did not have the expertise to operate the system; and Mr Smith who provided information about the employment history of Mr Grattan, the Crown expert.
[72] Affidavits have been provided by Mr Desouza, the defence expert who gave evidence at the trial, and two other experts, Mr Mills and Mr Michael Spence. In broad terms these affidavits concern the operation and reliability of the Comacc payroll system, including the reliability and susceptibility to manipulation of the notes for 31 July 2006. Mr Benjamin contends that Mr Desouza should have been better briefed (in line with his affidavit) and that the other two experts should have been called at trial.
[73] Finally, there are affidavits from seven character witnesses. Again Mr Benjamin contends that this evidence should have been led at trial.

The counsel error allegation

[74] The appellant alleges errors on the part of trial counsel in numerous respects: trial preparation (including obtaining disclosure); briefing evidence; cross-examining; failing to call evidence; and failing to properly present Mr Benjamin’s defence. Twenty one specific allegations are made.
[75] We find it convenient to address these allegations under the following heads: the salary increase; reliability/manipulation of the Comacc payroll system; the “revenge” defence; and character evidence.

The salary increase

[76] Whether or not Mr Spence senior agreed to a salary increase was a critical issue, at least in relation to counts 1–4 and 6. There were no witnesses to the alleged increase and it came down to a credibility contest between Mr Spence and Mr Benjamin.
[77] Mr Benjamin alleges that trial counsel should have called evidence demonstrating that there were “good grounds” for him to receive a pay rise. He contends that the evidence could have included:

• (a) his extra workload and responsibilities;
• (b) the need for him to update primitive accounting methods, finalise annual accounts, and deal with external auditors;
• (c) the need for Mr Spence senior to respond to the competitive offer for Mr Benjamin to return to his previous employer; and
• (d) Mr Spence senior’s oral agreement to increase the salary/car allowance for Mr Lowe and Mr Kreft.

Mr Benjamin claims that these matters could have been addressed by evidence from Mr Lowe and Mr Riddell and that failure to adduce such evidence resulted in a miscarriage of justice.

[78] We do not see any merit in that argument. The issue was not whether Mr Benjamin was entitled to a pay increase, but whether he was granted a pay increase, or at least genuinely believed that he had been. For a number of reasons we do not accept that evidence from Mr Lowe and/or Mr Riddell would have affected the Judge’s determination.
[79] First, it is clear that the Judge was well aware that Mr Benjamin believed that he was entitled to a pay increase. The Judge recorded Mr Benjamin’s contention that he deserved an increase due to his expanded payroll responsibilities.[28] Later the Judge concluded that Mr Benjamin was disgruntled at his treatment.[29] It is difficult to see how further evidence from Mr Lowe or Mr Riddell would have altered the Judge’s view of the matter.
[80] Secondly, the admitted facts included an admission that Mr Lowe had received an increase in his remuneration in March 2006 which was not recorded in writing. And there was unchallenged evidence at trial that Mr Kreft had also received a pay increase. Under those circumstances nothing would have been achieved by adducing evidence from Mr Lowe about his salary increase.
[81] Thirdly, there was, as Mr Downs pointed out, a risk that if the appellant’s sense of entitlement was overplayed, this might have strengthened the prosecution’s hand.
[82] Fourthly, Mr Spence senior was firm in his denial that there had been no salary increase and that no-one else had authority to grant an increase. Under cross-examination he confirmed that Mr Lowe and Mr Kreft had received increases but repeated that he had not authorised any increase for Mr Benjamin. It would be unrealistic to think that further evidence about Mr Benjamin’s perceived justification for the increase or the competing offer from Mr Benjamin’s previous employer would have made any difference to Mr Spence’s evidence or the Judge’s assessment of his credibility.
[83] We therefore conclude that the proposed evidence relating to the salary increase lacks cogency and is inadmissible. We are also satisfied that trial counsel did not err by failing to call that evidence or to cross-examine by reference it.
[84] Trial counsel are also criticised by Mr Benjamin for failing to adequately attack the credibility of Mr Spence senior. The proposition is that he had a motive to conceal from the Singaporean shareholder that he had authorised a salary increase for Mr Benjamin. It was argued that Mr Spence should also have been attacked on various other fronts, including that Kerry had suffered losses in 2005 and 2006; Mr Spence had directed staff not to communicate with Singapore; there were fictitious employees (Mrs Spence); and he was involved in tax evasion.
[85] We reject this criticism of trial counsel. If there was going to be an attempt to challenge Mr Spence’s credibility by reference to such matters a proper evidential foundation for the allegations would have been necessary. The information before us indicates that, to say the least, it was flimsy. For example, it became apparent to us when Mr Spence Junior was being cross-examined about whether his mother was a “fictitious employee” that the allegation was lacking in substance and would have almost certainly been rejected by the trial Judge. Issues of relevance would have also arisen.
[86] There is no merit in the appellant’s allegations of counsel error in relation to matters concerning the salary increase issue.

Reliability /manipulation of the Comacc payroll system

[87] At the forefront of this issue is the computer entry on 31 July 2006 reducing Mr Benjamin’s salary from $14,583.33 per month to $13,750 per month. This was, of course, a very compelling piece of evidence against the appellant.
[88] Mr Benjamin complains that his lawyers did not adequately address this issue. In particular they failed to:

• (a) brief Mr Lowe, with the result that there was no evidence before the Court that other people had access to Mr Benjamin’s computer and, indeed, that Mr Lowe had accessed and “adulterated” Mr Benjamin’s employee records;
• (b) lead evidence from experts or cross-examine Mr Spence senior and Mr Spence junior about “deletions” in the audit report or the restored maintenance records;
• (c) make a global challenge to the overall reliability of the system; and
• (d) make greater efforts to have the computer records ruled inadmissible, which would have effectively left the prosecution without a case.

As we mentioned earlier, Mr Benjamin does not accept responsibility for the 31 July 2006 entry reducing his monthly salary from $14,583.33 to $13,750. He contends that it arose from manipulation of the system by someone else or by virtue of the inherent unreliability of the system.

[89] Because the audit report is central to the arguments, it is now reproduced.

The appellant’s focus is on the two entries for 16 October 2006 which carry Mr Spence junior’s login. These entries are said to demonstrate that Mr Spence manipulated Mr Benjamin’s payroll records.

[90] The appellant contends that evidence from Mr Lowe, Mr Desouza, Mr Mills, and Mr Michael Spence should have been adduced in support of the defence proposition that Mr Spence junior had “adulterated” the payroll notes and/or that the system was unreliable. It is convenient to begin with the evidence that Mr Desouza could give, then we will consider the other two experts, and finally Mr Lowe.
[91] Given that Mr Desouza gave evidence at trial, there are obvious difficulties in admitting the proposed new evidence. As we have already noted, our justice system does not permit an accused to re-run his/her case on a more refined basis by means of the appeal process. It would be contrary to principle for us to accept the new evidence from Mr Desouza.
[92] Another problem stands in the way of admitting this evidence. At 9:41 a.m. on 16 November 2010 (the morning the trial began) Mr Desouza sent an email to Mr Kan raising the issue of the entries on 16 October 2006:

Now why would anyone touch the record of a terminated employee? Now that is an audit report pointing out an unusual action ... In our meeting yesterday morning Michael Grattan confirmed in the presence of the lawyers that he had verified the notes with the audit report and it all stacked up. That is not the case as I see it.

Leaving aside the issue of why this matter was not carried any further, it is clear that the critical issue arising from the audit report was alive before the trial began. Therefore any further evidence about it from Mr Desouza cannot be regarded as “fresh”, and we are not prepared to admit it.

[93] Now we turn to the proposed evidence from the other two experts. Mr Benjamin conceded under cross-examination by Mr Downs that he had not instructed his lawyers to call these witnesses. Given his qualifications and experience he must shoulder the responsibility for the decision not to call them. We do not accept that there was any error on the part of his lawyers in that regard.
[94] We now consider the potential evidence from Mr Lowe about him accessing Mr Benjamin’s payroll information, as earlier described. The complaint is that if Mr Lowe had been briefed this information would have come to hand and this would have assisted the defence case. However, the decision not to brief and call Mr Lowe was based on the admission concerning his salary increase and that it was not in writing. In all the circumstances we do not accept that trial counsel can be criticised for the decision not to brief or call him. Nor do we think that his evidence would have made any difference to the outcome.
[95] Given the emphasis on manipulation of Mr Benjamin’s records by Mr Spence junior, it is appropriate that we return to that issue. At trial Mr Spence was cross-examined about accessing Mr Benjamin’s pay records in mid October 2006 and retrieval of the employee maintenance notes:

Q. And these notes were restored?

A. Correct, yes.

17. So those notes being restored and you are saying that was deleted by Mr Benjamin?

A. Um, no I am just saying they were deleted and not on the record.

Q. You mean, I am sorry?

1. All I am saying is that they were deleted out of the Comacc system, obviously we can’t determine for sure who they were, or who deleted them.

Q. And you didn’t adulterate any of the records, did you?

A. No.

17. And I put it to you in fact, you did because you were the only other person in Kerry who has a very good knowledge of the Comacc system?

A. That is not the case.

17. You did so because you were not happy that your father’s business, which you were likely to inherit, that had been taken over by the majority shareholder offshore, overseas. Would you like to comment on that?

A. I didn’t change the records.

We should also add that Mr Spence was cross-examined before us to much the same effect.

[96] Thus the issue of Mr Spence accessing and adulterating Mr Benjamin’s employee records was very much to the fore at trial. So was the reliability of the Comacc payroll system. We do not accept that the appellant now seeks to rely on has any cogency or might have altered the outcome. Moreover, as we will find shortly, the audit report that the appellant seeks to rely on would have been a very cogent piece of evidence against him.[30]
[97] It was suggested that trial counsel should have sought an adjournment so that the audit report issue could have been properly explored before trial. Given the view that we have taken of the potential significance of the audit report, we do not see any merit in that point.
[98] Finally, any suggestion that the computer records were manipulated by someone else does not sit comfortably with Mr Benjamin’s evidence at trial to the effect that the entries reflected his unfamiliarity with the payroll system. Moreover, it cannot explain why he did not raise an issue about being finally paid out on 11 August 2006 at the lower salary of $165,000 per annum, a point that did not escape the attention of the Judge.

The “revenge” defence

[99] It is alleged that trial counsel erred by failing to put what has been described as the “revenge” defence to the Judge. The crux of that defence is that both Spences had reason to “frame” the appellant by denying the existence of a salary increase and then reversing that increase by using the computer system. It is said that this arose from information that Mr Benjamin had provided to the majority shareholder in Singapore which resulted in an internal audit in October 2006.
[100] Trial counsel do not dispute that they were aware that Mr Benjamin wanted to run the “revenge” defence, but that it was not run. When Mr Edgar was cross-examined about this before us he responded:

My feeling was that it lacked a paper trail or an evidential basis to properly put it rather than simply, to use my vernacular, flying a kite, and it didn’t fit the essential defence case that this was an unsophisticated user who was not conversant with the software which was the primary issue in my view.

Mr Kan’s response to a similar question was that it was “just a theory he asked me to run in the trial” and that it contradicted Mr Benjamin’s defence.

[101] While Mr Benjamin claims that the affidavits of Mr Lowe and Mr Lang provide a foundation for the revenge motive, we have not located any cogent evidence in those documents. Moreover, the internal audit that is relied on does not seem to have carried any adverse consequences for Mr Spence Senior (or, for that matter, Mr Spence junior). We can therefore understand why trial counsel exercised the judgment that they did and decided not to pursue the defence.
[102] There is also strength in two other points that are made by Mr Downs. First, the revenge motive does not sit easily with the fact that Mr Spence senior attempted to negotiate a recovery of the overpayment before he went to the police. Secondly, Mr Benjamin accepted at trial that evidence concerning the “revenge” defence would not be adduced (although he now regrets that decision).
[103] We conclude that the evidence that Mr Benjamin seeks to rely on to support his proposition that trial counsel erred by not running the “revenge” defence lacks cogency. Equally importantly, we do not think that it would have altered the outcome of the trial.

Character evidence

[104] As we have already mentioned, a significant quantity of favourable character evidence has been placed before us. Mr Benjamin alleges that trial counsel erred by not explaining to him that character evidence could be called (this is not disputed by trial counsel) and by failing to call such evidence.
[105] We do not think that there is anything in this point. Assuming for the moment that such evidence would have been admissible, we do not think that it would have altered the Judge’s assessment and conclusions. This was a trial before a Judge alone, and a very experienced Judge at that. We agree with the assessment made by trial counsel that the fact that Mr Benjamin was a chartered accountant, coupled with the other evidence before the Court as to his background and experience, spoke for itself.

Conclusions as to trial counsel error allegations

[106] Despite the mass of detail that has been provided in support of these allegations, the Crown case against the accused was relatively simple. It is difficult to escape the conclusion that Mr Benjamin is trying to re-litigate under the guise of counsel error.
[107] To the extent that we can legitimately rely on “fresh” evidence that Mr Benjamin seeks to adduce, we do not believe that it would have altered the outcome. There is no merit in this ground of appeal.

Prosecutorial misconduct

[108] The allegation is this: the Crown prosecutor, Mr Williams, was aware from the audit report that Mr Spence junior did access Mr Benjamin’s salary and holiday records and had, indeed, altered those records; but he led the Judge to believe that any suggestion that Mr Spence junior had altered or deleted records was “pure speculation”.
[109] A miscarriage of justice is said to have arisen because Judge Wilson was unaware of the content of the audit report. In Mr Rogers’ words, the Judge was unaware:

... of the content of the audit report and of the documentary evidence that Mr Matthew Spence had adulterated the Kerry Comacc computer records and in particular the salary and holiday pay records of the appellant.

Mr Rogers submitted that this had a direct bearing on the credibility finding that was adverse to the appellant and ultimately critical to the outcome of the prosecution.

[110] Mr Williams explained the circumstances surrounding the audit report in his affidavit and he was cross-examined about this matter. Immediately he received the audit report by email on 15 November 2010 he sent it on to Mr Benjamin’s lawyers. When he had an opportunity to look at it he thought that it would be of no assistance because it did not address the critical issue, namely, the entry on 31 July 2006 reducing Mr Benjamin’s monthly salary. Later there was a meeting between the experts and lawyers and he does not recall any discussion about the entries on 16 October 2006. He rejects any suggestion that he deliberately withheld the information as “absurd”.
[111] What did become apparent to him during the trial, but was not led in evidence, was that the audit report was in fact highly probative evidence against Mr Benjamin. This was because the entries made on 7 August 2006[31] by “Current user: A Administration”, which was Mr Benjamin’s login, indicated that the holiday pay days paid in advance had been changed from 10 to 0 and in the fourth entry down the page the holiday amount paid in advance had been changed from $7,170.35 to 0. He considered it significant that these changes were made under the appellant’s login only a few days before Mr Benjamin departed Kerry.
[112] Having studied the audit report we have concluded that it would have been more damaging to the defence than to the Crown. We find the points made by Mr Williams about the probative value of the entries on 7 October 2006 are compelling. On the other hand, we believe Mr Rogers overstated the inferences that could be drawn from the entries on 16 October 2006. The suggestion that Mr Spence junior “adulterated” Mr Benjamin’s payroll notes needs to be assessed against Mr Spence’s evidence that he accessed those notes and recovered deleted material in mid October, well after Mr Benjamin had left Kerry. We also keep in mind that at trial Mr Spence denied that he had adulterated the records (and he did so again before us).
[113] Given those matters we have not been persuaded that there is anything in the prosecutorial misconduct allegation.

Error by Judge

[114] The final ground of appeal is a narrow one. With reference to the holiday pay issue the Judge said:

[29] Mr Benjamin said that he was loading accumulated details of holidays taken alphabetically using the default position, until (T244) he realised there was a problem with the holiday pay of Wayne Old which produced a strange result. He corrected this then continued to the end, keying in to deduct holiday pay. He then started making corrections from the start (sic) of the alphabet, but was probably interrupted by tradesmen dealing with flood repairs. The one case on the evidence where the appropriate adjustment was never made was his own. (Emphasis added)

The appellant contends that there is no evidence to support the conclusion that we have underlined.

[115] Again we do not believe that there is any merit in this point. On the evidence before him the Judge was able to draw the inference that he did.

Result

[116] All of the grounds of appeal have failed. The appeal is dismissed.

Solicitors:
Webster Law, Auckland for Appellant
Crown Law Office, Wellington for Respondent

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[1] R v Benjamin DC Auckland CRI-2008-004-18032, 24 November 2010.
[2] Mr Lowe and Mr Kreft (the mistake in relation to these employees was rectified).
[3] Agreement had been reached about Mr Benjamin’s exit package on 19 May 2006.

[4] One of the allegations underlying this appeal is that trial counsel failed to advance the defence that he had been “set up”.

[5] Under this section, which relates to evidence produced by a machine, device or technical process, it is presumed that the machine, device or technical process did what the party asserts that it had done in the absence of evidence to the contrary
[6] At [12]
[7] This was not disputed by the Crown.

[8] Mr Kreft was in a different position because his increase did not take effect until 1 April and there was simply “a replacement of a physical car whereas Mr Lowe’s was genuinely additional remuneration”.
[9] At [12].
[10] At [14].
[11] At [15].
[12] At [24]–[26].
[13] At [26].
[14] At [28].
[15] At [29].

[16] At [36].
[17] At [38] and [39].
[18] At [41].
[19] At [43].
[20] At [45]–[48].
[21] At [49].
[22] At [55]–[57].
[23] At [58]–[60].
[24] Witehira v R [2011] NZCA 255.
[25] R v Kingi CA122/05, 10 August 2005 at [68].
[26] Wallace v R [2010] NZCA 46 at [76].
[27] Sungsuwan v R [2005] NZSC 57, [2006] 1 NZLR 730.
[28] At [20].
[29] At [24].
[30] See [111] and [112].
[31] At [89].