Bowen v R [2024] NZCA 106 (12 April 2024)

Last Updated: 15 April 2024

IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA

CA471/2023 [2024] NZCA 106

	BETWEEN	MICHAEL CRAIG BOWEN Appellant
	AND	THE KING Respondent

Hearing:	11 March 2024
Court:	French, Palmer and Cooke JJ
Counsel:	G D Prentice for Appellant J M Pridgeon for Respondent
Judgment:	12 April 2024 at 2.15 pm

JUDGMENT OF THE COURT

The appeal against conviction is dismissed.
____________________________________________________________________

REASONS OF THE COURT

(Given by French J)

Introduction

• [1] Mr Bowen was found guilty at trial of dishonestly using a document to obtain valuable consideration.^[1] The charge arose out of his failure to disclose his previous conviction for unlawful sexual connection when applying to the Paramedic Council to become a registered paramedic. The Crown case was that despite knowing he was required to disclose the conviction, Mr Bowen deliberately and dishonestly misled the Council by providing a letter about his criminal record which he knew did not reflect the true position.
• [2] He now appeals his conviction on two grounds.^[2]

Background

The undisputed facts

• [3] In 1994 Mr Bowen, then known as Michael Craig Gosnell, was convicted of unlawful sexual connection and sentenced to two years’ imprisonment.
• [4] He changed his surname from Gosnell to Bowen in 2010. At that time, he was operating a private ambulance service which he had established through the vehicle of a limited liability company in 2006.
• [5] In January 2020, paramedic services were designated a regulated health profession under the Health Practitioners Competence Assurance Act 2003.^[3] That meant that all practising paramedics were required to register with the Paramedic Council in order to be able to hold themselves out and work as a paramedic.^[4] The prescribed form for registration asked the applicant to answer yes or no to the following question:

Are you under investigation by the police or have you been convicted of any offence against the law in New Zealand or any other country?

• [6] The form also required the applicant to provide, amongst other things, a New Zealand Ministry of Justice Criminal Record Check.
• [7] In light of that requirement, Mr Bowen completed a Ministry of Justice form requesting his criminal conviction history. The first page of that form required the requester to provide their personal details including:

Previous names – maiden names, other names you are known as or have used

Surname First name Middle names (separated by commas)

• [8] Mr Bowen left that section blank.
• [9] Step 3 of the request form was as follows:

Step 3 Full record of convictions

If you have any criminal convictions, they will not appear on your criminal conviction history report if you meet the eligibility criteria of Section 7 of the Criminal Records (Clean Slate) Act 2004 unless you ask us to provide this to you.

Tick this box if you want to receive a full record of your criminal convictions held on the Ministry of Justice’s computer systems. For example where this is a requirement for immigration or to get a visa from a foreign country.

!

Important. Do not tick this box if you are giving your criminal conviction history report to another person or third party such as a recruitment agency, employer or insurer. If someone asks you to provide your criminal conviction history, they should use the Ministry’s form “Request someone else’s criminal conviction history”. You can get a copy from justice.govt.nz/criminal-records

I authorise the Criminal Records Unit, Ministry of Justice, to provide me with the details of any criminal convictions I may have which are held on the Ministry of Justice’s computer systems.

Your name:

Your signature:

Date:

• [10] As will be seen, Step 3 references the Criminal Records (Clean Slate) Act 2004 and the eligibility criteria in s 7. The scheme of the Clean Slate Act is that convictions more than seven years old will be removed from a person’s criminal history provided that certain eligibility criteria are met.^[5] The Act also provides that an eligible person may answer a question asked of them about their criminal record by stating that they have no criminal record.^[6] Although Mr Bowen’s conviction was more than seven years old, the fact it was for a sexual offence and the fact it resulted in a prison sentence both meant Mr Bowen did not meet the eligibility criteria.^[7]
• [11] Mr Bowen did not tick the box in Step 3 and he signed immediately under it.
• [12] He submitted the request form on 6 January 2021. On 14 January 2021, the Ministry of Justice sent him a letter stating that as at 14 January 2021 he had no convictions based on the information he had provided, namely the name Michael Craig Bowen, and his date of birth and gender.
• [13] Had Mr Bowen supplied his former name to the Ministry of Justice, the letter would have shown the conviction for sexual connection and the fact of the prison sentence.
• [14] On 15 March 2021, Mr Bowen duly submitted his application for registration to the Paramedic Council. His application included the letter from the Ministry of Justice showing a clear criminal history. He also answered “no” to the question in the application form asking whether he had any previous convictions, and formally declared that all of the information provided in the application was true and correct.
• [15] Eleven days after Mr Bowen submitted the registration application, he received from the police a copy of his full criminal history which contained the conviction under the name of Gosnell. That came about because earlier in the year, a traffic infringement notice had been issued against Mr Bowen’s ambulance company as a result of Mr Bowen speeding in one of the ambulances. He had notified police that he was challenging the infringement notice and his criminal history was included in the police disclosure.
• [16] As part of the preparation for the defended hearing of the infringement notice, the police officer in charge of the case, Detective Carter, reviewed the ambulance company’s Facebook page. The Facebook page referred to staff receiving confirmation of their paramedic registrations. This raised the officer’s suspicions as he knew of Mr Bowen’s conviction for sexual offending and was aware that in some occupational settings, such a conviction would be a disqualifying factor.
• [17] Further inquiries were made and on 26 July 2021 police arrested Mr Bowen. He agreed to be interviewed.
• [18] During the course of the interview, Mr Bowen claimed he had not disclosed his conviction for sexual offending to the Paramedic Council because the offending happened over seven years ago and under the Clean Slate Act he was not required to disclose it. He said he would have undertaken a Google search of the Clean Slate Act and would have read a couple of different things to make sure he was correct.
• [19] When Detective Carter took Mr Bowen to a result from the first page of a Google search for the Clean Slate Act and read out that the Clean Slate scheme does not apply to convictions for sexual offending or convictions resulting in a custodial sentence, Mr Bowen said he had obviously not read the Clean Slate Act properly.
• [20] He was unable to explain why he had not completed the “other names” section of the Ministry of Justice request form other than suggesting it was because he had been known as Michael Bowen for a long time and believed under the “clean slate thing, that [he] didn’t need to”. When asked about Step 3 of the Ministry request form, he said he had not read it. He also stated he was “just filling in the form. I didn’t actually read it properly, no.”
• [21] At the conclusion of the police interview, Mr Bowen said he would contact the Paramedic Council and correct the position. That appears to have happened shortly after the interview. The Council subsequently declined Mr Bowen’s application for registration.
• [22] Mr Bowen pleaded not guilty to the charge of dishonestly using a document.

The trial

• [23] At trial the key issue was whether Mr Bowen had intended to deceive the Paramedic Council.
• [24] Mr Bowen elected to give evidence. He told the jury he thought that when he changed his name, the old name would just “follow through” to his new one, “it would continue on”. As regards the “other names” section on the Ministry request form, he said he thought the “other names known as” was only asking about changes of surname on marriage or when “you’d had a change [sic] your name or something to that effect”, and was not sure so left it blank. When he subsequently received the Ministry of Justice letter, he simply thought the absence of any reference to the 1994 conviction was the Clean Slate Act in operation.
• [25] During his police interview and again in evidence at trial, Mr Bowen confirmed that he had received his full criminal history from a police disclosure package in February 2021, that is to say he was in possession of it when he had submitted the registration application to the Paramedic Council. Evidence was also given by Detective Carter that he had sent Mr Bowen his criminal and traffic conviction history in February 2021.
• [26] After the defence case had closed but before closing addresses, Mr Bowen’s trial counsel advised the Judge that he had found a copy of the letter that had accompanied the police disclosure and it was dated 26 March 2021, not February. The Judge said it was too late to produce the letter in evidence and was not prepared to take the matter any further.
• [27] The jury found Mr Bowen guilty.

Affidavit evidence of Detective Carter

• [28] Issues relating to the significance of the police letter of 26 March 2021 and the Judge’s refusal to allow it to be produced were raised in the appeal grounds.
• [29] That prompted the Crown to file an affidavit from Detective Carter sworn in November 2023. Detective Carter deposed that the 26 March 2021 disclosure on which Mr Bowen was now seeking to rely had been sent by the Police Infringement Team to Mr Bowen but that he (Detective Carter) had sent an initial disclosure package containing a full conviction history to Mr Bowen earlier in February. Detective Carter therefore stood by the evidence he had given at trial about the date.
• [30] After swearing his affidavit, Detective Carter sought to corroborate his evidence by requesting an audit log of when he had accessed Mr Bowen’s criminal history. To his surprise, because he was very sure the correct date was February, the audit log supported the disclosure not having been provided until March. A second affidavit from Detective Carter was then filed advising this Court of the correct position.
• [31] For the purposes of the appeal, it is therefore now common ground that Mr Bowen did not receive his full conviction history until after submitting his registration application and that accordingly the jury were given incorrect information on that point. Counsel for the appellant also accepts that even if the Judge had agreed to admit the letter of 26 March 2021 into evidence, that would not have assisted Mr Bowen. All that would have happened was that Detective Carter would have been recalled and given the evidence he gave in his first affidavit.

Grounds of appeal

• [32] On behalf of Mr Bowen, counsel Mr Prentice advanced two grounds of appeal:

(a) there was a real risk the outcome of the trial was affected by the incorrect information regarding the date Mr Bowen had received the police disclosure; and

(b) the trial Judge erred by failing to direct the jury to put aside any prejudice it might have against Mr Bowen for having a conviction for sexual offending.

Did the incorrect evidence occasion a miscarriage of justice?

The argument

• [33] Mr Prentice pointed out that both in its cross-examination and its closing address, the Crown highlighted the now impugned evidence that at the time Mr Bowen forwarded his application for registration, he was in possession of his full criminal history. It was, Mr Prentice argued, the strongest aspect of the Crown’s case. Without it, he said, the Crown case would have been significantly weakened and there would have been a reasonable possibility of an acquittal.
• [34] Developing this central contention, Mr Prentice argued that the wrong information enabled the Crown to paint a damning picture of Mr Bowen being in possession of two documents and choosing to submit the one that was more favourable to him without questioning matters further. In Mr Prentice’s submission, Mr Bowen was completely discredited as a result and his defence that he genuinely believed his conviction was covered by the Clean Slate Act was unfairly undermined. Also unfairly undermined was the reasonableness of Mr Bowen’s position that because his birth certificate still referred to his old name, he gave sufficient information to the Ministry of Justice to enable them to make the link.

Analysis

• [35] In our view, Mr Prentice’s submissions overstate the importance of the incorrect evidence. It was only one part of what was a very strong Crown case, and without it the Crown case was still very strong. We point to the following evidence:

(a) An admission by Mr Bowen in cross-examination that he understood when completing the forms that the Paramedic Council would want to know about convictions for sexual offending because paramedics have close contact with vulnerable people.

(b) He also accepted the disclosure of convictions was a fundamental part of the application for registration and that he had stated on the application that he had not been convicted of an offence.

(c) He accepted too that when applying to both the Ministry of Justice and the Paramedic Council that he thought about the fact he had a conviction. He also said he had taken other steps in addition to looking at the Clean Slate Act to “make sure” he was correct.

(d) It would have been apparent from even a cursory look at the Clean Slate Act or commentary on it, such as the result of the Google search shown to him during the police interview, that the scheme did not apply to his conviction for sexual offending.

(e) Mr Bowen was an educated man who in the course of running his ambulance business would have been used to filling out forms and aware of the importance of completing them properly.

(f) None of the questions in the criminal conviction history request form or the paramedic registration form were confusing.

(g) The critical sections in the request form were in bold type.

(h) Mr Bowen signed the request form immediately under a step that he claimed not to have seen.

(i) His various explanations including his professed interpretation of the question about “other names” were inherently implausible.

(j) There were discrepancies between the explanations he gave at trial and the ones he had given to the police. His explanations to the police involved a misreading of the Clean Slate Act and the forms. At no time did he tell the police he believed that his old name would automatically follow through to his new.

• [36] In light of the strength of this other evidence, we are not persuaded there is a real risk the admission of the erroneous evidence affected the trial’s outcome. There is, in our view, an irresistible inference from all the other evidence that Mr Bowen knew that disclosure of his previous convictions would likely jeopardise his chances of getting registration and so deliberately and dishonestly completed the two forms with the intention of deceiving the Paramedic Council for his own benefit.
• [37] We note too that even if evidence had been given that Mr Bowen received the police disclosure on 26 March, he would still have faced the very real difficulty that despite receiving his full criminal history only 11 days after submitting the application, he made no attempt to contact the Paramedic Council and correct his application. He did nothing until after being interviewed by police in July to correct the misleading impression he had created, despite knowing the importance of a conviction for sexual offending to the Paramedic Council when applying for registration.
• [38] It is no answer to this latter point to contend, as Mr Prentice did, that evidence of subsequent conduct is irrelevant. While the jury was required to assess Mr Bowen’s intentions at the time he submitted the forms, it would be legitimate to invite the jury as part of that assessment to draw inferences about those intentions from what Mr Bowen did or did not do afterwards.
• [39] We reject this ground of appeal.

Was a specific direction regarding Mr Bowen’s previous conviction required?

• [40] Mr Prentice accepted that on its own this ground of appeal would not justify quashing the conviction but advanced it on the basis that in combination with the admission of erroneous evidence it strengthened the submission of a miscarriage of justice.
• [41] Mr Prentice acknowledged that the jury needed to hear evidence of the appellant’s previous conviction and the fact that it was for sexual offending as that was relevant to the issues at trial. However, he contended that in the absence of a firm direction from the Judge about the use the jury could make of that evidence, there was a real risk the jury’s impression of Mr Bowen would have been tainted. They would not like a sex offender.
• [42] We are not persuaded that a specific direction was required. This was only a two‑day trial during the course of which the jury heard that Mr Bowen had not been convicted of anything else since 1994. The conviction was not particularly highlighted by the Crown. Further, the Judge in his introductory remarks and again in his summing up firmly instructed the jury to put aside any feelings of sympathy and prejudice. Similar comments were made by the prosecutor in her closing address. It is also reasonably possible that a specific judicial direction highlighting the conviction even further and referencing an emotional response to it could well have been prejudicial to Mr Bowen rather than helpful.
• [43] In all the circumstances, we consider that more was not required of the Judge. This ground of appeal therefore also fails.

Outcome

• [44] The appeal against conviction is dismissed.

Solicitors:
Crown Law Officer, Wellington for Respondent

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^[1] Being an offence under s 228(1)(b) of the Crimes Act 1961. He was sentenced to 100 hours community work : R v Gosnell [2023] NZDC 24433.

^[2] An appeal against conviction and sentence, pertaining to trial counsel’s alleged failure to apply for a discharge without conviction, was not pursued.

^[3] Health Practitioners Competence Assurance (Designation of Paramedic Services as Health Profession) Order 2019, cl 3.

^[4] Health Practitioners Competence Assurance Act 2003, ss 7–9 and 15.

^[5] Criminal Records (Clean Slate) Act 2004, s 3.

^[6] Section 14.

^[7] Sections 4 and 7.