Six years on, appeal dismissed in Maclean Computing fraud case
- 28 May, 2018 08:15
Final judgment: Court of Appeal has last word on Maclean Computing saga
Six years after Maclean Computing entered liquidation, what could well be the final word on the failure has played out in the Court of Appeal.
In a judgment this month, the court granted leave to former company accountant Gavin Graham Jardine to appeal his four convictions of accessing a computer system and dishonestly obtaining a pecuniary advantage totalling $383,385.
At the same time, the court dismissed the appeal itself.
The first liquidator's report into the Auckland-based company's failure, dated 19 July 2012, says the directors attributed the company's troubles to misappropriation of funds by a former employee.
The company was unable to pay its debts as they fell due. At the time of liquidation, the company owed just over $3 million to an extensive list of creditors with total assets totaling $1.1 million.
Jardine pursued two major issues in his appeal. The first was his sense of grievance that he had been prosecuted, despite having entered into a settlement of a civil proceeding commenced against him by Maclean Computing.
"Under that settlement, the applicant agreed to the entry of judgment against him for about $540,000 and agreed to make reparation payments totaling $440,000 over a period of just over five years," the judgment states. "In return Maclean Computing agreed it would take no steps to enforce the judgment."
Jardine, who lodged his appeal after serving a sentence of three years and eight months in prison, considered that it was implicit in this settlement that criminal proceedings would not be commenced against him.
Meanwhile, his second concern was the way his defence had been conducted by his trial counsel.
In his application for leave to appeal, Jardine focused on the first of these concerns, wishing to argue that the prosecution should not have been commenced against him because it did not meet the public interest criterion in the Prosecution Guidelines.
"The Court of Appeal considered whether the prosecution was an abuse of process and found that it was not," the judgement states. "No one associated with the prosecution had given any assurance to the applicant that he would not be prosecuted if he settled with Maclean Computing and made reparations."
As it transpired, Jardine made no payments to Maclean and was eventually bankrupted by its liquidators.
The Court of Appeal was satisfied that the circumstances in which Jardine reached his civil settlement with Maclean Computing did not render a subsequent prosecution an "affront to justice".
"In effect, the applicant seeks to argue the proposition that, although he admitted defrauding his employer of a considerable sum of money, he should not be held to account by the criminal law because he offered to repay the money," the judgment states.
"We do not see any prospect of such an argument being successful. And, as noted earlier, he did not, in fact, repay any of the money."
The court both allowed an extension of time for the filing the application for leave to appeal and dismissed the application itself.
After the liquidation of Maclean Computing, the business was sold for $180,000, reborn as Maclean Technology and the following year sold again to Noel Leeming Group.