Borlase v R - [2017] NZCA 514

IN THE COURT OF APPEAL OF NEW ZEALAND

CA133/2017
[2017] NZCA 514

BETWEEN	STEPHEN JAMES BORLASE Appellant
AND	THE QUEEN Respondent

CA205/2017
BETWEEN	MURRAY JOHN NOONE Appellant
AND	THE QUEEN Respondent

Hearing:	17 October 2017
Court:	Kós P, Harrison and Gilbert JJ
Counsel:	R M Mansfield for Appellant (CA133/2017) S J Lance for Appellant (CA205/2017) B H Dickey and M S Gatland for Respondent
Judgment:	14 November 2017 at 11 am

JUDGMENT OF THE COURT

A The appeal against conviction (CA133/2017) is dismissed.

BThe appeals against sentence (CA133/2017 and CA205/2017) are dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Harrison J)

Introduction

One appellant, Stephen Borlase, was the principal of Projenz Ltd. The other appellant, Murray Noone, was a senior engineer employed first by Rodney District Council and later by its statutory successor, Auckland Transport. Projenz provided engineering consultancy services specialising in roading. The company successfully tendered for contracts with the Council and later Auckland Transport. Over a seven‑year period Mr Borlase on Projenz’s behalf gave Mr Noone undisclosed cash and other benefits totalling about $1.15 million. He also gave Barrie George, another senior employee of both local authorities, benefits of about $100,000.
The Crown charged all three men with giving and taking bribes under s 105 of the Crimes Act 1961. Mr George pleaded guilty to two charges. Messrs Borlase and Noone pleaded not guilty. Following a lengthy trial in the High Court, Fitzgerald J sitting without a jury found Mr Borlase guilty of six charges of bribing Mr Noone and of two charges of bribing Mr George.[1] She found Mr Noone guilty of the six mirror charges of receiving bribes.
[1]R v Borlase [2016] NZHC 2970 [Reasons].
The Judge convicted and sentenced Messrs Borlase and Noone to terms of imprisonment of five years and six months and five years respectively.[2] Lang J had earlier sentenced Mr George to 10 months’ home detention.[3] Mr Borlase appeals against both his conviction and sentence. Mr Noone appeals against sentence alone.
[2]R v Borlase [2017] NZHC 236 [Sentencing notes].
[3]R v George [2016] NZHC 2067. See also Lang J’s sentencing indication: R v George [2016] NZHC 1730.
The four agreed elements of the charges against Mr Borlase were that he (a) corruptly (b) gave a bribe (c) to Mr Noone (d) with intent to influence him in respect of any act or omission by him in his official capacity. Mr Mansfield accepts that Mr Borlase cannot challenge the Judge’s findings of proof of the first three elements. Mr Borlase’s appeal against conviction is advanced solely on the ground that the Judge erred in finding the fourth element proved. Mr Mansfield says the Crown failed to establish that the payments were made with the intention that Mr Noone act improperly to Mr Borlase’s advantage. Our factual narrative must be read in that context.

Facts

The trial occupied six sitting weeks. The Judge’s unchallenged findings allow us to recite the facts with relative brevity.
Mr Borlase established Projenz in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Borlase v R

Details

AGLC: Borlase v The Queen [2017] NZCA 514
Case: [2017] NZCA 514
Decision Date: 14 November 2017 at 11 am

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard the appeals of Stephen Borlase and Murray Noone against their convictions and sentences for bribery under the Crimes Act 1961. Borlase, the principal of Projenz Ltd, and Noone, a senior engineer employed by Rodney District Council and later Auckland Transport, were charged with giving and receiving bribes. The bribes were given in the form of undisclosed cash and other benefits totaling approximately $1.15 million. Borlase appealed against both his conviction and sentence, while Noone appealed only against his sentence.

The legal issues the court was required to decide were whether the Crown had proven the fourth element of the bribery charges, which was that the payments were made with the intent to influence Noone in respect of any act or omission by him in his official capacity. The court also had to consider whether the sentences imposed by the High Court were appropriate.

The Court of Appeal dismissed both appeals. Regarding the conviction, the court found that the plain words of the statutory text did not require proof of the additional element of an intention to influence the official to act in a certain way, whether proper or improper. The culpable intention was limited to bringing about a certain state of affairs, and the nature of the influence was relevant only to sentence. As for the sentences, the court held that the sentences imposed by the High Court were within the appropriate range, and there was no error in the starting points or the consideration of mitigating factors.

In conclusion, the Court of Appeal dismissed Borlase's appeal against conviction and both appeals against sentence. The convictions and sentences imposed by the High Court were upheld.

Orders