DeMarco v R [2022] NZCA 145 (28 April 2022)

Last Updated: 3 May 2022

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)

• [1] 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.
• [2] 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.
• [3] 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

• [4] A summary of Mr DeMarco’s offending was set out in Clark J’s sentencing notes. What follows is taken from those notes.
• [5] 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]
• [6] 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]
• [7] The second set of offending related to an agreement between Mr DeMarco and Mr Wulff. Mr DeMarco entered into an agreement relating to the ownership of shares in Mr DeMarco’s company, the Old Stick and Rudder Co. Ltd, and a vintage aircraft it owned. Mr DeMarco failed to assign any legally meaningful right to Mr Wulff. The aircraft was then offered to the Bank of New Zealand as security for a loan. That was in violation of the agreement with Mr Wulff. Mr DeMarco did not inform the bank of the existence of the agreement with Mr Wulff and he made false representations to the bank to obtain the loan.^[5]

Approach to applications to set aside a notice of abandonment of appeal

• [8] This Court’s decision in R v Cramp remains the leading authority for principles relevant to an application for leave to withdraw a notice of abandonment. There are two grounds on which a court will set aside a notice of abandonment of appeal:^[6]

(a) if the abandonment was a nullity because it was not the result of a deliberate and informed decision; or

(b) if, in exceptional circumstances, the interests of justice require the court to set it aside.

• [9] In Marteley v R, this Court set out factors that may influence a court’s decision to grant leave to withdraw a notice of abandonment of an appeal:^[7]

(a) Whether the applicant can point to a clear and material error of fact or law in the court’s earlier judgment or the applicant’s decision to abandon his appeal.

(b) The importance of finality in criminal proceedings. This is underpinned by concerns about the interests of victims (including the family and friends of a deceased’s victim), witnesses, and the integrity of the court’s processes which are put at risk if appeals are allowed to be reactivated after years of delay. It is also important not to deny other litigants from accessing the court’s finite resources through the court needlessly revising earlier decisions.

(c) The nature of any advice the applicant has previously received concerning the merits of the proposed reinstated appeal.

Should leave to withdraw the notice of abandonment be granted?

Deliberate and informed

• [10] It is clear from the affidavits filed in support of the application that Mr DeMarco’s decision to abandon his appeal was both informed and deliberate.
• [11] The decision was informed by legal advice on the merits of the appeal and on the consequences of abandoning it. The nature of that legal advice was set out in affidavits filed by Mr DeMarco’s former counsel, Mr Corlett QC and Ms Cameron. Mr Corlett deposes to advising Mr DeMarco after the jury’s verdict that an appeal against conviction “had some merit, although success was not guaranteed by any means”.
• [12] Ms Cameron deposes to speaking to Mr DeMarco on at least three different occasions about his instructions to abandon his appeal. She recollects advising Mr DeMarco that abandoning his appeal would mean he would lose his opportunity to challenge his convictions. Although it appeared to Ms Cameron that Mr DeMarco was under considerable stress at the time he decided to abandon the appeal, she did not have any concerns about his mental capacity, and considered him to be lucid, understanding of the advice given, and able to process and make informed decisions.
• [13] The decision was not only informed by legal advice, but it was clearly deliberate. In an affidavit filed in support of the application, Mr DeMarco says that he wanted to abandon the appeal because of its impact on his prospects of release on parole. He says that he was told by prison authorities that he would be ineligible for rehabilitative programmes or other reintegrative opportunities in prison while an appeal was underway, and the Parole Board would not consider anyone for parole if they had an unresolved appeal.
• [14] We are given no reason to question the competence of the legal advice, or the accuracy of the information provided to him by prison authorities. Its accuracy is, in any event, beside the point. What matters is that Mr DeMarco made a deliberate decision to abandon his appeal in order to increase his chances of being released on parole.
• [15] We consider that decision was not only deliberate, but strategic in nature. Mr DeMarco was advised by counsel that his best chance of being released on parole was for him to admit his offending, express his remorse, and take ownership of his wrongdoing. Mr DeMarco did just that in representations made to a privately commissioned psychologist. Those representations, and the fact that an appeal had been subsequently abandoned, were referred to by the Parole Board in its written reasons for the decision to grant parole.
• [16] The subsequent decision to pursue his appeal after his release suggests that Mr DeMarco did not, in fact, accept the jury’s verdict or any wrongdoing on his part. That gives rise to a strong inference that Mr 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.
• [17] We agree with the Crown that, on its face, this was a cynical attempt by Mr DeMarco to manipulate the system. To allow the notice of abandonment to be withdrawn in these circumstances would sanction conduct which threatens the integrity of the parole process. That is not consistent with the public interest and weighs heavily against the grant of leave in this case.

No exceptional circumstances

• [18] Mr DeMarco says the pressure and stress he was under at the time of abandoning his appeal meets the exceptional circumstances threshold in this case.
• [19] At the time the decision was made to abandon the appeal, Mr DeMarco was in prison and, by his own admission, was not coping well and kept to himself. The primary driver of the decision to abandon, however, was Mr DeMarco’s concerns for the welfare of his partner, 20-month old daughter, and new baby who was born while he was in prison. The family was under significant stress and Mr DeMarco says his sole focus was on returning to his family as soon as possible. Abandoning the appeal was a means to that end as he believed it would increase his prospects of parole.
• [20] Adding to that stress, was the significant financial pressure Mr DeMarco and his family were under at the time. Mr DeMarco had found it difficult to work prior to trial due to the charges he faced. He had used available funds to conduct his defence, and still owed counsel substantial sums for legal fees. Mr DeMarco’s partner operated a small business but could not continue while being the sole carer for two children.
• [21] Mr DeMarco was also defending multiple civil proceedings following his conviction at trial. Assets which Mr DeMarco regarded as belonging to him or to companies owned by him had been seized as part of these proceedings. He unsuccessfully defended one of those proceedings and was eventually declared bankrupt on 14 July 2021.
• [22] We have no doubt that these were significant pressures weighing on Mr DeMarco at the time he decided to abandon the appeal. However, there is nothing exceptional about them. They are the ordinary consequences which flow from being convicted of criminal offending and sentenced to a term of imprisonment. In this case, the impact of a sentence of imprisonment on Mr DeMarco’s family was reflected in a generous 30 per cent discount applied by the Judge.^[8]
• [23] 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. We are not satisfied that the pressures being suffered by Mr DeMarco at the time are such that the interests of justice warrant the notice of abandonment being set aside.

Merits of the proposed appeal

• [24] The original notice of appeal filed by Mr DeMarco alleged error by the trial Judge in failing to give a tripartite direction about the defendant giving evidence at trial.
• [25] Following a change in counsel, a grounds of appeal document was filed which added numerous other grounds of the proposed appeal. In addition, an application to adduce fresh evidence in support of these proposed grounds was filed with this Court together with the fresh evidence sought to be adduced.
• [26] However, at the hearing before us, Mr Tennet invited us to put to one side the application to adduce fresh evidence and the additional grounds of appeal. The focus was solely on the alleged errors with the Judge’s summing up. Even then, not all the alleged errors in the summing up were canvassed in submissions. We are conscious that this is an application for leave to withdraw a notice of abandonment of appeal and not the appeal itself. For the purposes of assessing the merits of the proposed appeal, therefore, we focus only on those alleged errors which were canvassed in Mr Tennet’s submissions.
• [27] The first of the alleged errors relates to the failure to give a full tripartite direction about the defendant giving evidence. While we consider it would have been preferable to give a full direction, we are not persuaded that the failure to do so risked miscarriage in this case. We say that for three reasons:

(a) First, the Crown prosecutor said in her closing address that Mr DeMarco did not have to give evidence and the fact that he had chosen to do so did not change the fact that the Crown still had to prove the case against him.

(b) Second, the Judge’s directions on the burden and standard of proof made it clear that the onus was on the Crown to prove the defendant’s guilt beyond reasonable doubt and the defendant did not have to prove his innocence. The Judge also made clear that the defendant did not have to call evidence or give evidence at trial. Those directions were repeated in written form for each question in the question trail.

(c) Third, the Judge directed the jury that if they didn’t accept something the defendant had said, they could not jump from that to guilt. The jury was directed to consider all evidence accepted as reliable and decide from that whether they were sure of the defendant’s guilt. That direction was consistent with the third limb of the standard tripartite direction and it guarded against the jury equating rejection of Mr DeMarco’s evidence with guilt.

• [28] Next, Mr Tennet submits that there was error in the Judge’s directions regarding reliability and credibility. He says that if the Judge was suggesting that Mr DeMarco was lying, she should have given a lies direction. We reject that proposed ground of appeal for the following reasons:

(a) The Judge directed the jury that they could accept or reject part or all of what a witness had to say. She also directed on the difference between unreliable and dishonest evidence, with the lack of honesty in evidence being a reason to reject it. Those were orthodox directions which did not contain any error.

(b) The Judge did not characterise Mr DeMarco as a liar, and we could find no reference in the summing up to support any inference that this is what she said.

(c) The Crown case at trial was that Mr DeMarco had lied as part of the deception underpinning the charges. Crown counsel also submitted to the jury that Mr DeMarco’s exculpatory explanation for the offending was false and it should be rejected on that basis. Those circumstances did not warrant a lies direction, and nor was there a request for such a direction to be given.^[9]

• [29] Mr Tennet submits that an “extraordinary prejudice” direction was required to counteract the celebrity effect of Sir Peter Jackson giving evidence against Mr DeMarco at trial. We see little merit in this proposed ground of appeal. The Judge gave an orthodox direction on sympathy and prejudice. She directed the jury to reach a verdict solely on the evidence presented in Court, and to ignore any prior knowledge, reports in the media, or comments that others had made about the case. The Judge also made reference to the fact that some of the witnesses had made disparaging comments about Mr DeMarco. She described these to the jury as “opinions and feelings”, not evidence, and she directed the jury to disregard them as irrelevant to their determinations. Those directions were adequate in our view, and the absence of a particular direction regarding Sir Peter Jackson’s evidence did not give rise to a risk of miscarriage.
• [30] Mr Tennet also submits that the Judge erred in not giving a direction on inferences. That is not correct. The Judge did direct the jury on inferences. She did so in the context of explaining one of the questions in the question trail where the Crown was relying on inferences to prove that particular charge. The directions on inferences were entirely orthodox and we see no error in what the Judge said.
• [31] Finally, we do not consider there to be a real risk of prejudice or unfairness arising from how the Judge summed up the defence case. At the outset of her summing up to the jury, the Judge explained that her summary of the respective cases would be reasonably brief because the “reasonably detailed” closing addresses would be fresh in the minds of the jury and it was not necessary to repeat everything already said. The Judge also summed up the cases for each party when going through the questions for each charge. Although the overall summary of the Defence case was only one paragraph, so too was the summary of the Crown case. We are not persuaded that the cases were treated unequally in the Judge’s summing up and no risk of miscarriage arises.
• [32] Standing back and considering the summing up as a whole, we do not consider the merits of Mr DeMarco’s proposed appeal are so strong that the interests of justice warrant the grant of leave in this case.

Result

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

Solicitors:
Crown Law Office, Wellington for Respondent

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^[1] R v DeMarco [2019] NZHC 3209 [Sentencing notes] at [51].

^[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].

^[4] At [5]–[10].

^[5] At [11]–[13].

^[6] R v Cramp [2009] NZCA 90 at [20]–[26].

^[7] R v Marteley [2021] NZCA 636 at [37].

^[8] Sentencing notes, above n 1, at [48].

^[9] Evidence Act 2006, s 124(3).