Rose v The Queen - [2017] NZCA 335

IN THE COURT OF APPEAL OF NEW ZEALAND

CA266/2016
[2017] NZCA 335

BETWEEN	JANE CLARE ROSE Appellant
AND	THE QUEEN Respondent

CA337/2016
BETWEEN	PAUL KENNETH ROSE Appellant
AND	THE QUEEN Respondent

Hearing:	26 June 2017
Court:	Miller, Lang and Mander JJ
Counsel:	B L Sellars for Appellant Jane Rose D J Dufty for Appellant Paul Rose N R Williams for Respondent
Judgment:	4 August 2017 at 10.00 am

JUDGMENT OF THE COURT

AThe application for an extension of time in CA337/2016 is granted.
BThe application in CA337/2016 to admit fresh evidence is declined.
CThe appeal in CA337/2016 against conviction and sentence is dismissed.
DThe application to admit fresh evidence in CA266/2016 is granted.

E The appeal against conviction in CA266/2016 is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Mander J)

The appellant, Paul Rose, was convicted at trial on nine representative charges of obtaining by deception. He was sentenced to three years and two months’ imprisonment. He seeks to appeal both his convictions and his sentence. The other appellant, Jane Rose, was found guilty on eight charges of being a party to Mr Rose’s offending. She was sentenced to a term of nine months’ home detention. She appeals her convictions.

Background

Mr Rose was a longstanding employee of Mighty River Power. He was employed initially as a technician and then as an electrical engineer at the Southdown power station from November 2001 until 2012.
In 2004, Penrose Electrical Services Limited (Penrose Electrical) and Electrapro Automation Limited (Electrapro) were incorporated. Mr Rose’s former partner, Angela Soper, was the director and sole shareholder of both companies. In 2010, Aero Automation Limited (Aero Automation) was incorporated. Ms Rose, like Mr Rose’s former partner, was the sole shareholder and director of that company.
The business of these companies (together the supply companies) exclusively involved the supply of electrical parts and services to Mighty River Power’s power station at Southdown. Between 2003 and 2006 Penrose Electrical and Electrapro, and then subsequently between 2010 and 2012 Aero Automation, engaged in business with Mighty River Power.
The Crown’s case was that Mr Rose used the supply companies to surreptitiously conduct business with Mighty River Power, and that Ms Rose over a number of years assisted him in that endeavour. The Crown alleged that Mighty River Power would not have engaged in business with these particular companies but for Mr Rose’s employment at Southdown.
While both Ms Soper and Ms Rose undertook the administrative tasks of these companies, neither had the skill, knowledge, or experience to operate such a business. However, Mr Rose did have the necessary technical skills and, by virtue of his employment, the knowledge of the particular requirements and needs of the Southdown power station.
Under Mr Rose’s employment contract he was required to disclose any activity or association that could be considered a conflict of interest with his role at Mighty River Power. Mr Rose did not disclose any involvement or connection with the supply companies. The Crown alleged he deliberately concealed his…

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 Rose v The Queen

Details

AGLC: Rose v The Queen [2017] NZCA 335
Case: [2017] NZCA 335
Decision Date: 4 August 2017

CaseChat Overview and Summary

Paul and Jane Rose appeal against their convictions and sentences for fraud and deception. Paul Rose was sentenced to three years and two months' imprisonment and Jane Rose to nine months' home detention. Paul Rose argues that the Crown presented misleading evidence about his employment agreements, and that the trial judge failed to provide a direction regarding what constituted a conflict of interest. Jane Rose argues that the trial judge's response to a jury question did not draw a clear distinction between the need to prove an act of assistance and an intention to aid her husband. Jane Rose also seeks to admit fresh evidence that may reasonably have led to her acquittal. The Court of Appeal found no merit in Paul Rose's appeal against his convictions and sentence. In relation to his appeal against his convictions, the Court found that the proposed evidence of a 2003 employment agreement was not relevant to the charges on which he was convicted and did not give rise to any risk of a miscarriage of justice. In relation to the failure to provide a direction as to what constituted a conflict of interest, the Court found that the omission did not give rise to any miscarriage of justice. In relation to his sentence appeal, the Court found that the starting point taken by the trial judge was not excessive, and that the trial judge was entitled to decline to impose a sentence of reparation. The Court of Appeal found no merit in Jane Rose's appeal against her convictions. In relation to the trial judge's response to a jury question, the Court found that the trial judge's answer correctly advised that the jury had to assess whether practical involvement in the day-to-day running of the business satisfied the two elements of the question. In relation to the fresh evidence, the Court found that its content did not give rise to any risk of a miscarriage of justice.

Orders