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Man who failed to disclose sexual conviction during paramedic application loses appeal

19 Apr 2024

| Author: Jamie Dierick

Appeal – appeal against conviction – evidence not allowed to be adduced at trial – whether the outcome of trial affected – failure of the trial judge to give jury direction as to prejudice of conviction for sexual offending – appeal dismissed – the significance of the evidence overstated – jury direction already given – no further jury direction deemed necessary

Bowen v R [2024] NZCA 106 per French J.

 

In 1994, Michael Bowen (then known as Michael Craig Gosnell) was convicted of unlawful sexual connection and sentenced to two years’ imprisonment.

The appellant changed his surname from Gosnell to Bowen in 2010. At the time, he was operating a private ambulance service.

In January 2020, paramedic services were designated a regulated health profession under the Health Practitioners Competence Assurance Act 2003. This meant all practising paramedics were required to register with the Paramedic Council to hold themselves out and work as paramedics. This process required them to disclose in their applications any previous convictions and complete a Ministry of Justice form requesting their criminal conviction history.

Bowen filled out the form, but left out his previous name. He received a reply from the Ministry of Justice stating that based on the name he provided, “Michael Bowen”, he had no convictions.

Had Bowen supplied his former name to the Ministry of Justice, the letter would have shown his conviction for sexual connection and the fact of his prison sentence.

Bowen then submitted his application to the Paramedic Council, where he answered “no” to whether he had any convictions. He formally declared that all the information he gave was true and correct.

After submitting the registration application, Bowen received an infringement notice for his ambulance company, part of which included a copy of his criminal history. During the investigation before the defended hearing, the lead police officer reviewed the ambulance company’s Facebook page and saw staff receiving confirmation of their paramedic registrations. This raised the detective’s suspicions and he investigated.

Bowen was then interviewed by Police, saying he believed he was covered by the Clean Slate scheme as the conviction was older than seven years. Bowen told Police after the interview that he would contact the Paramedic Council to correct the position and he did so. The Paramedic Council declined Bowen’s application for registration.

Bowen was subsequently charged and convicted of dishonestly using a document to obtain valuable consideration.

During the trial, there was a dispute about when the police letter containing Bowen’s criminal history was given. The lead detective initially claimed it was provided in February 2021 before Bowen’s application to the Paramedic Council, but later evidence from a police audit log showed it was actually in March – after Bowen’s application. Bowen’s trial counsel discovered a copy of the letter indicating the March disclosure, but the judge deemed it too late for the letter to be presented.

Bowen appealed his conviction on two grounds: that there was a real risk the outcome of the trial was affected by the incorrect information regarding the date he had received the police disclosure, and that the trial judge failed to direct the jury to put aside any prejudice it might have against him for having a conviction for sexual offending.

French J held that the significance of the evidence not adduced at trial was overstated, given there was substantial other evidence indicating his awareness of the importance of disclosing convictions for sexual offences on registration forms.

The second ground failed on the basis that the trial judge had already instructed the jury to set aside prejudice, and further direction might have been prejudicial rather than helpful.

 

Applicable principles: appeal against conviction – evidence not allowed to be adduced at trial – whether the outcome of trial affected – failure of the trial judge to give jury direction as to prejudice of conviction for sexual offending – appeal dismissed – the significance of the evidence overstated – jury direction already given – no further jury direction deemed necessary

Held: The appeal against conviction was dismissed.

 

Jamie Dierick is an employed criminal defence barrister

 

Bowen v R [2024] NZCA 106.

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