DeMarco v The the Queen - [2022] NZCA 145

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA637/2019
[2022] NZCA 145

BETWEEN	EUGENE JOHN DEMARCO Applicant
AND	THE QUEEN Respondent

Hearing:	23 February 2022
Court:	Dobson, Brewer and Edwards JJ
Counsel:	C J Tennet for Applicant C A Brook and H S Cunningham for Respondent
Judgment:	28 April 2022 at 2.00 pm

JUDGMENT OF THE COURT

The application for leave to withdraw the notice of abandonment of appeal against conviction is declined.

____________________________________________________________________

REASONS OF THE COURT

(Given by Edwards J)

Following a jury trial in the High Court at Wellington, Mr DeMarco was convicted of two charges of obtaining by deception and four charges of theft by a person in a special relationship. On 5 December 2019, he was sentenced to an effective end-sentence of two years and five months’ imprisonment for these charges.[1] On the same day he was sentenced, Mr DeMarco filed a notice of appeal against conviction and sentence.
[1]R v DeMarco [2019] NZHC 3209 [Sentencing notes] at [51].
Approximately two weeks later, on 3 February 2020, a notice of abandonment of the appeal against conviction was filed. A notice of abandonment of the appeal against sentence was filed a few months after that, on 30 April 2020.
In September 2020, Mr DeMarco was released on parole having served nine months of his 29-month sentence. He now applies for leave to withdraw his notice of abandonment in relation to the conviction appeal.

Offending

A summary of Mr DeMarco’s offending was set out in Clark J’s sentencing notes. What follows is taken from those notes.
Mr DeMarco was employed as the production manager of The Vintage Aviator Ltd, a company established by Sir Peter Jackson and Ms Fran Walsh to manufacture reproduction and replica World War I aircraft.[2] His duties included managing the production of aircraft, test flying, and arranging sales.[3]
[2]We adopt the form of address used by the High Court Judge at sentencing on the assumption that these were the preferred forms of address for both parties.
[3]Sentencing notes, above n 1, at [4].
The offending consisted of sales of aircraft to two separate people. The first set of offending involved the sale to New Zealand Warbirds Association (Warbirds), using funds from Mr Field along with other donations, of three aircraft belonging to The Vintage Aviator Ltd. Warbirds paid a company associated with Mr DeMarco the sum of $2.1 million for the aircraft. That was an inflated price, being approximately $622,000 above the list price. Those funds were not paid on to Vintage Aviator Ltd. Mr DeMarco arranged for one of the three aircraft to be transported to Auckland without the knowledge or consent of Vintage Aviator Ltd. Once his deception was uncovered, Mr DeMarco returned some of the money to the potential purchasers of the plane but he had had the use of the money in the intervening period.[4]
[4]At [5]–[10].
The second set of offending related to an agreement between Mr DeMarco and Mr Wulff.…

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 DeMarco v The the Queen

Details

AGLC: DeMarco v The the Queen [2022] NZCA 145
Case: [2022] NZCA 145
Decision Date: 28 April 2022 at 2.00 pm

CaseChat Overview and Summary

Eugene John DeMarco appeals against the decision of the High Court of New Zealand to dismiss his application for leave to withdraw his notice of abandonment of appeal against conviction. The Court of Appeal heard the appeal on 23 February 2022 and delivered its judgment on 28 April 2022. DeMarco was convicted of two charges of obtaining by deception and four charges of theft by a person in a special relationship. He was sentenced to an effective end-sentence of two years and five months’ imprisonment. On 5 December 2019, DeMarco filed a notice of appeal against conviction and sentence. However, he abandoned the appeal on 3 February 2020 and 30 April 2020, respectively. DeMarco now applies for leave to withdraw his notice of abandonment in relation to the conviction appeal.

The legal issues the Court of Appeal had to decide were whether DeMarco's abandonment of his appeal was not the result of a deliberate and informed decision, or if, in exceptional circumstances, the interests of justice required the Court to set it aside. The Court found that DeMarco's decision to abandon his appeal was both informed and deliberate. He was advised by legal counsel that an appeal against conviction "had some merit, although success was not guaranteed by any means." DeMarco was also informed by prison authorities that he would be ineligible for rehabilitative programs or other reintegrative opportunities while an appeal was underway, and the Parole Board would not consider anyone for parole if they had an unresolved appeal. Therefore, DeMarco made a deliberate decision to abandon his appeal in order to increase his chances of being released on parole. However, the Court found that DeMarco's acceptance of responsibility for wrongdoing at the time parole was being considered was not genuine and was simply designed to secure an early release. Allowing the notice of abandonment to be withdrawn in these circumstances would sanction conduct which threatens the integrity of the parole process. This is not consistent with the public interest and weighs heavily against the grant of leave in this case.

Furthermore, the Court found that there were no exceptional circumstances that warranted the grant of leave in this case. Although DeMarco was under significant stress and financial pressure at the time he decided to abandon his appeal, these were the ordinary consequences which flow from being convicted of criminal offending and sentenced to a term of imprisonment. The exceptional circumstances threshold is deliberately high so as to preserve the public interest in the finality of litigation and the integrity of criminal proceedings leading to verdict. The Court was not satisfied that the pressures being suffered by DeMarco at the time were such that the interests of justice warranted the notice of abandonment being set aside.

Lastly, the Court found that the merits of DeMarco's proposed appeal were not so strong that the interests of justice warranted the grant of leave in this case. DeMarco's proposed appeal alleged error by the trial Judge in failing to give a tripartite direction about the defendant giving evidence at trial. However, the Court was not persuaded that the failure to give a full tripartite direction risked miscarriage in this case. The Court also found no error in the Judge's directions regarding reliability and credibility, an "extraordinary prejudice" direction, or the Judge's summing up of the defence case.

In conclusion, the Court of Appeal declined DeMarco's application for leave to withdraw the notice of abandonment of appeal against conviction. The Court found that DeMarco's decision to abandon his appeal was deliberate and strategic in nature, and that there were no exceptional circumstances that warranted the grant of leave. The merits of DeMarco's proposed appeal were also not so strong that the interests of justice warranted the grant of leave. Therefore, the Court dismissed DeMarco's appeal against the decision of the High Court of New Zealand to dismiss his application for leave to withdraw his notice of abandonment of appeal against conviction.

Orders