Bolton v Maritime New Zealand [2012] NZHC 1135 (25 May 2012)

Last Updated: 1 June 2012

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2011-404-358 [2012] NZHC 1135

MELVILLE JOHN BOLTON

Applicant

v

MARITIME NEW ZEALAND

Respondent

Hearing: 21 May 2012

Appearances: P Eastwood for Applicant

A McClintock for Respondent

Judgment: 25 May 2012

JUDGMENT OF TOOGOOD J

_{[AS TO FRESHNESS OF PROPOSED EVIDENCE ON APPEAL]}

This judgment was delivered by me on 25 May 2012 at 12 midday

Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

Solicitors:

PT Eastwood, Barrister, Auckland: [e-mail]

A McClintock, Meredith Connell, Auckland: [e-mail]

BOLTON V MARITIME NEW ZEALAND HC AK CRI-2011-404-358 [25 May 2012]

[1] Melville John Bolton was convicted by Judge Davis in the District Court at Auckland, on 14 December 2010, on a charge under s 65 of the Maritime Transport Act 1994 of operating a ship, the Classique, in a manner which caused unnecessary danger or risk to any other person or property.[1] He has appealed against his conviction, and against a fine of $4,000 and costs of $1,356 ordered under s 13(3) of the Costs in Criminal Cases Act 1967.

[2] The appellant has applied to the Court, under s 119(3) of the Summary Proceedings Act 1957, for a direction that the Court will hear and receive further evidence on the appeal, on the grounds that such evidence could not, in the circumstances, have reasonably been adduced at the District Court hearing. The application is opposed by the respondent.

[3] The proposed evidence takes the form of two reports by a witness, who is said to be an independent expert, who could assist the Court on technical matters related to the charges.

Principles for admission of further evidence on appeal

[4] The principles to be applied by an appellate court when considering an application to admit further evidence were discussed by the Court of Appeal in R v Bain,[2] and approved by the Privy Council on appeal.[3] For present purposes, it is

sufficient to quote the summary of the principles in the Court of Appeal’s judgment:[4]

It can therefore be seen that there are in substance three screens or controls which the court applies in a further evidence case. The first is concerned with freshness, the second with credibility, and the third with whether the new evidence is such that it might reasonably have led to a finding of not guilty if called at the trial. If the appellant can satisfy the requirements inherent in each of these three controls, the question whether the further evidence does lead to a reasonable doubt is a question not for the appellate court but for a new jury at a second trial which the court will ordinarily order, unless for some good reason, pertaining to the nature of the new evidence or otherwise, the court in its discretion decides not to order a new trial.

[5] The term “freshness” is shorthand for the requirement in s 119(3) of the Summary Proceedings Act that the evidence “could not in the circumstances have reasonably been adduced at the hearing ....” In coming to a view whether the test of freshness is met, the Court is required to consider all of the circumstances. This will include an inquiry into whether the evidence existed at the time; whether, if the evidence existed, its existence could have become known to the appellant by the exercise of reasonable diligence; and whether, if its existence was known, it was reasonable not to adduce it at the time of the hearing.

Scope of preliminary hearing – ‘freshness’

[6] At the outset of the hearing of the application, I confirmed with counsel that they understood that the preliminary issue to be decided was the first of the three screens or controls for the exercise of the discretion in s 119(3) (freshness), and that the issues of credibility and cogency would need consideration in the context of the hearing of the substantive appeal only if I determined that the evidence could not have reasonably been adduced at trial. It was accepted also that my decision as to freshness could be reached on the basis of the affidavit evidence provided, and on the submissions of counsel.

[7] It was agreed that, if I concluded that the evidence was fresh, the witness would be made available for cross-examination (if required) before the Judge hearing the substantive appeal who would then make a determination as to credibility and cogency in the context of the appeal as a whole.

[8] Notwithstanding this understanding of the scope of the present inquiry, the submissions of counsel ranged more widely to cover the issue of whether the evidence, if admitted, was such that it might reasonably have led to the dismissal of the charges against the appellant. Counsel ably assisted me by referring me to relevant passages in the transcript of the evidence given in the District Court, and discussing issues related to pre-trial disclosure and other aspects of the conduct of the proceedings.

The case against the appellant in the District Court

[9] The case against the appellant concerned what might be described, at least on one view, as a “near-miss” between Classique, a yacht under motor power being helmed by the appellant, and Seaway II, a vehicular ferry travelling from Waiheke Island to Wynyard Wharf in Auckland. The incident giving rise to the charges occurred somewhere in the vicinity of Motuihe Island and Brown’s Island in the Hauraki Gulf, while the ferry was heading to Auckland. Classique was approaching Seaway II from Classique’s starboard; Seaway II had Classique on its port side approaching on a 30 degree angle. There does not seem to be any dispute that when the appellant first saw Seaway II it was some three nautical miles away. It also appears to be indisputable that, provided the two vessels maintained their bearings, their courses would intersect at some point.

[10] The central issue in the case was whether, in the circumstances which the Court found to exist, the acts or omissions of the appellant breached the Maritime Rules made by the Minister of Transport pursuant to the Maritime Transport Act 1994.

The Maritime Rules

[11] The District Court Judge described the Rules and their significance to the facts as he found them to be in the following terms:[5]

The Maritime Rules

[14] A comprehensive code of rules has been developed to govern situations where collisions may be apparent. These are covered by the Maritime Rules Part 22 headed Collision Prevention. The Rules comprise four sections and 40 Rules in total. In addition there are three appendices to the Rules. Rule 22.4 provides that the Rules in this subsection apply in any condition of visibility. Rule 22.7 relates to the risk of collision and provides:

Rule 22.7 Risk of Collision

(1) Every vessel must use all available means appropriate to the prevailing circumstances and conditions to determine if the

risk of collision exists. If there is any doubt, such risk must be considered to exist.

(2) Proper use must be made of radar equipment, if fitted and operational, including long-range scanning to obtain early warning of the risk of collision and radar plotting or equivalent systematic observation of detected objects.

(3) Assumptions must not be made on the basis of scanty information, especially scanty radar information.

(4) In determining if the risk of collision exists, the following considerations must be among those taken into account –

(a) Such risk must be considered to exist if the compass bearing of an approaching vessel does not appreciably change; and

(b) Such risk may sometimes exist even when an appreciable bearing is evident, particularly when approaching a very large vessel or a tow or when approaching a vessel at close range.

[15] The important point about Rule 22.7(1) is that if there is any doubt as to whether a risk of collision may be present then the Rule provides that the risk of collision must be considered to be existing.

[16] Rule 22.8 sets out action that is required to be undertaken to avoid the collision. Rule 22.8(1) provides that any action to avoid a collision must be taken in accordance with the requirements of this section and if the circumstances allow, “be [positive], made in ample time and with due regard to the observance of good seafaring practice”. The Rule also provides that if there is sufficient room for alteration of course alone must be the most effective action to avoid a close quarters situation provides that:

(a) It is made in good time; (b) It is substantial; and

(c) It does not result in another close quarters situation.

[17] There is no dispute that on the day in question there was no other sea traffic in the vicinity of either the Seaway II or Classique such that if an alteration of course was [required] to be undertaken, and such alteration in course could have been done both in good time, and in a substantial fashion, and in a fashion that [would] have avoided a second close quarters situation. Rule 22.15 defines a crossing situation and provides as follows:

Rule 22.15 Crossing situation

When two power-driven vessels are crossing so as to involve risk of collision, the vessel which has the other on its own starboard side must keep out of the way. The vessel required to keep out of the way must, if the circumstances of the case allow, avoid cross ahead of the other vessel.

[18] Applying the Rule to the situation at hand, if a crossing situation existed the onus was on the Classique to keep out of the way of the Seaway II.

[19] Rule 22.16 defines the actions required to be undertaken by the give- way vessel and provides:

Rule 22.16 Action by give-way vessel

Every vessel which is directed to keep out of the way of another vessel must, so far as possible, take early and substantial action to keep well clear.

[20] Again, applying this Rule to the situation at hand, if a crossing situation existed the onus was on the Classique to take early and substantial action to keep well clear of the Seaway II.

[21] In contrast Rule 22.17 sets out the actions required to be undertaken by the stand on vessel. They are as follows:

Rule 22.17 Action by stand-on vessel

(1) If one of two vessels is to keep out of the way, the other must keep its course and speed.

(2) As soon as it becomes apparent to the stand-on vessel that the vessel required to give way is not taking appropriate action in compliance with this Part –

(a) it may take action to avoid collision by its manoeuvre alone; and

(b) if it is a power-driven vessel in a crossing situation, if the circumstances of the case allow, it must not alter course to port for a vessel on its own port side.

(3) When, from any cause, the stand-on vessel finds itself so close that collision cannot be avoided by the action of the give-way vessel alone, it must take whatever action will best avoid collision.

(4) This rule does not relieve the give-way vessel of its obligation to keep out of the way.

[22] Applying the Rule to the situation that presented itself to each of Seaway II and the Classique the onus was on the Seaway II to maintain its course and speed. Furthermore, if it becomes apparent to the stand on vessel that the give-way vessel is not taking action to give way then the stand on vessel may take action to avoid collision, but under no circumstances can the stand on vessel alter its course to port.

[23] In other words, once it became apparent to the Seaway II that the Classique was not taking action to give way (assuming a crossing situation existed) then the Seaway II was allowed to take its own evasive action provided it did not alter its course to port. The rationale behind the Rule is

that the onus may have remained for the Classique to turn to its starboard and if the Seaway II were to turn to its port each vessel would in executing those manoeuvres turn into the path of the other. Importantly Rule 22.17(4) provides that Rule 22.17 itself does not relieve the give-way vessel of its obligation to keep out of the way; in other words, the Rule does not relieve the Classique of the obligation to keep out of the way of the Seaway II if a crossing situation existed.

The essential facts of the prosecution case

[12] The Judge then stated the essential facts of the prosecution’s allegations in

these terms:

[24] Returning to the facts of this case – the Seaway II had rounded Motuihe Island and was on a course of 286 true when it had the Classique bearing down on it on its port side. Seaway II sounded five warning blasts as required by the Maritime Rules and despite those blasts the Classique continued to bear down on the Seaway II. Becoming concerned at the situation Captain Pigneguy took a photo of the Classique. The Classique did not alter its course and a second photo was taken of the Classique. Again the Classique did not alter its course and a third photo was taken. By this time Captain Pigneguy said he had thrown the Seaway II into reverse to bring it to a halt and that enabled the Classique to pass across the bow of the Seaway II. Captain Pigneguy’s evidence was that had he not thrown the Seaway II into reverse the Seaway II would have collided with the Classique.

[25] Captain Pigneguy reported what he considered to be a close quarters situation to Maritime New Zealand and an investigation was conducted. As part of that investigation the photographs were analysed by Maritime New Zealand and by an independent maritime expert whose evidence was that Classique passed between 18 and 30 metres across the bow of the Seaway II; a distance that in his view was not safe.

The appellant’s defences in the District Court

[13] In the District Court, the appellant raised a number of defences, as follows:

(a) The situation that presented itself on the Hauraki Gulf was not a crossing situation (as described in rule 22.15), so the Maritime Rules did not apply.

(b) Alternatively, if there was a crossing situation, it became such only because it had been “manufactured” by the skipper of the ferry, Captain Pigneguy. It was suggested in evidence by the appellant that there was a degree of animosity between Captain Pigneguy and him

and that, instead of maintaining its course as required, Seaway II altered course to starboard incrementally so as to create a risk of collision which would not otherwise have existed.

(c) He maintained his course and speed because he anticipated that Seaway II would alter its own course to port which, in the appellant’s experience, was the ferry’s usual practice.

[14] In support of the allegation that the Seaway II had gradually turned to starboard and, therefore, across the path of Classique, the appellant relied on charts and courses that he had plotted in an endeavour to recreate the path Seaway II had taken. A maritime expert called on behalf of the prosecution, Mr Young, disputed the authenticity of the appellant’s plotting. Further, the appellant alleged that the photographs taken by Captain Pigneguy had been altered; he also asserted that the distances estimated by Captain Pigneguy were not accurate.

The findings of the District Court Judge

[15] After taking time to consider the evidence, the Judge rejected the defences. He held that it was proved beyond reasonable doubt that the appellant had failed to take the evasive measures which he was required to take under the Rules, thereby operating his vessel in a manner which caused unnecessary danger or risk to the Seaway II and its passengers and crew. Two alternative charges under the Rules were dismissed accordingly.

The nature of the proposed further evidence

[16] The allegedly fresh evidence which the appellant wishes to call in support of his appeal against conviction comprises two reports prepared by a Mr Julian Joy who, for present purposes, may be regarded as an expert on maritime law and practice with respect to collision prevention at sea.

[17] Mr Joy did not give evidence in the District Court, but it is common ground that he attended two-and-a-half days of the three-day hearing in his capacity as a

senior lecturer at the Maritime School, in the company of a number of his students. By coincidence, one of his students, a Mr Sweetman, was in the wheelhouse of Seaway II, keeping watch, at the time of the incident.

[18] In his preparation for the case, the appellant had discussed the case with Mr Joy. It is not clear from the available evidence whether the discussions went so far as to include a critical analysis by Mr Joy of the evidence which the prosecution proposed to call from its independent expert, Mr Young.

[19] The appellant, who describes his occupation as “Sailing Master”, is aged

74 years. He says that he has been a qualified skipper internationally for more than

20 years, in the Caribbean where Classique was conducting charters, and also in Western Australia and San Diego for America’s Cup regattas. He claims in his affidavit that thousands of people have travelled safely on his yacht and that he has taken groups on extensive cruise-share trips on his vessel throughout the Pacific, and to the Kermadec Islands as a dive instructor.

[20] It seems clear that, for the purposes of conducting his defence when he was unrepresented by counsel, the appellant acted as both advocate and expert witness. He says that he was confident, because of his knowledge and experience, that the Judge would accept his version of events and that he would be vindicated. The appellant says that the Judge was confronted with direct conflicts between his views and those of the prosecution expert, and that it was unfair of the Judge in the circumstances to prefer Mr Young’s opinion.

[21] The appellant now argues that in order to avoid an injustice he should be permitted to put Mr Joy’s reports in evidence on the hearing of his appeal.

The course of the proceedings in the District Court

[22] An unusual feature of the history of this case is relevant to the matters to be considered in determining whether the interests of justice require the admission of Mr Joy’s reports in evidence on the hearing of the appeal.

[23] Following delivery of his reserved judgment on 14 December 2010, Judge

Davis remanded the appellant to appear for sentence on 21 March 2011. Early on

21 March 2011, the appellant filed an application for a rehearing. He had by then been granted legal aid and was assisted by counsel, Mr Eastwood. The Legal Aid authorities had paid for Mr Joy to prepare a report. It seems that the full report was not available at that time but Judge Davis took a sympathetic view. He said:[6]

[3] The application is somewhat unusual and in the ordinary course of events I would not entertain the application, but one matter persuades me that it is proper to not yet decide the application in this case and that is that the hearing which took place over three days in December 2010 involved Maritime New Zealand on the one hand and Mr Bolton on the other. Mr Bolton represented himself at the hearing and it is highly likely he would not have known the nature of the evidence that he would have been required to have presented to the Court, sufficient to challenge the experts that Maritime New Zealand presented to the Court.

[4] This is one of those rare cases where justice must not only be done, but it must be seen to be done, and I will allow Mr Bolton to file detailed affidavit evidence from his expert and that is to be filed by 18 April 2011.

[24] Maritime New Zealand was given until 16 May 2011 to respond to Mr Joy’s evidence and the Judge said he would then decide whether or not to grant a rehearing on the papers.

[25] In response to Mr Joy’s report of 18 April 2011, Maritime New Zealand filed an affidavit sworn by its expert, Mr Young, on 16 May 2011. The affidavit responded in some detail to Mr Joy’s report. In it, Mr Young said that the majority of the conclusions reached by Mr Joy were based on an assumption that Seaway II changed course by some 11 degrees to starboard and that this was not factually correct. Mr Young’s assessment, using the three photographs taken by Captain Pigneguy, was that the ferry altered course by no more than four degrees and that this was not an appreciable change. He said that there was nothing in the report by Mr Joy that would change his views that a risk of collision existed; that Classique was the give-way vessel; and that the failure to take early and substantial action to keep out of the way of Seaway II amounted to a breach of the Maritime Rules. Mr Young supported the view that a likely collision was avoided only by the actions

_{of the ferry captain in throwing Seaway II into reverse.}

[26] In a further reserved judgment, dated 27 May 2011, Judge Davis dismissed the rehearing application. He noted that the overriding concern for the Court was whether the failure to grant a rehearing would result in a miscarriage of justice. He decided it would not because the evidence in Mr Joy’s report did not raise any materially new issue. The Judge considered that the evidence was an invitation to him to revisit his conclusion that a crossing situation existed because the facts upon which he had made that finding could, on the basis of Mr Joy’s analysis, be interpreted in an entirely different fashion.

[27] Pointing out that Mr Joy was not a witness to the events that occurred on the Hauraki Gulf on 14 March 2009, the Judge held that Mr Joy’s evidence was, in many respects, premised on his own attempts to reconstruct the relative positions of Classique and Seaway II based on photographs tendered in evidence. He considered it was not possible to determine the precise position along the path Seaway II was undertaking at the time of the incident.

[28] The Judge recorded that the appellant’s primary defence had been that a crossing situation did not exist at the time of the incident. He said he was satisfied on the basis of the three photographs taken by Captain Pigneguy that a crossing situation existed and that the onus was on the appellant to keep out of the way in accordance with the Maritime Rules. He held there was nothing in Mr Joy’s evidence that would lead him to alter that view and, in the circumstances, a rehearing should not be granted.

[29] Undaunted, the appellant commissioned a second report from Mr Joy dated July 2011. This was prepared by Mr Joy in response to Mr Young’s affidavit, the submissions of counsel for Maritime New Zealand in opposition to the rehearing application, and Judge Davis’s reserved judgment declining the application for a rehearing. It comprises a purported rebuttal of Mr Young’s affidavit, essentially on a paragraph-by-paragraph basis.

[30] The appellant appeared before Judge Davis for sentence on 29 August 2011. In his sentencing notes, the Judge traced the history of the proceedings including the fact that the substantive hearing had occupied three days, that a rehearing had been

applied for but declined, and that he had received, that morning, a second application for a rehearing. The Judge said that he had issued a separate Minute declining that application. For some reason a copy of that Minute is not available for consideration.

Discussion of ‘freshness’ issue

[31] Although Judge Davis indicated in his Minute issued on 21 March 2011 that he thought it was highly likely the appellant would not have known the nature of the evidence that he would have been required to have presented to the Court to rebut the prosecution case,[7] I am satisfied that the appellant had in fact been provided with full pre-trial disclosure of the prosecution case against him. It was not disputed by Mr Eastwood in the hearing before me that there had been extensive disclosure of the prosecution evidence and an ample opportunity provided to the appellant to consider, and prepare any necessary rebuttal to, the prosecution case, including the

evidence it was proposed would be given by Mr Young.

[32] In communications between the appellant and Maritime New Zealand and its legal advisers, beginning with the letter of 21 September 2009 enclosing the summonses, and ending with an email from Ms McClintock to the appellant dated

13 November 2009, the prosecution urged the appellant to seek legal representation to assist him in the preparation of his defence. He declined to do so. In submissions he prepared for the purposes of a status hearing on 16 November 2009, he said:

I realize lawyers prefer to speak with lawyers but my nautical & practical knowledge is something not many available lawyers would have.

The correspondence indicates that the appellant did take legal advice of one kind or another on several occasions, including speaking to the Duty Solicitor on the date of the status hearing as a result of encouragement from the presiding Judge.

[33] The appellant said that the status hearing Judge told him he could place some reliance on the evidence to be given by Maritime New Zealand’s expert on the basis that the expert was independent and his evidence would be intended to assist the

Court. It is now said on behalf of the appellant that this dissuaded him from seeking to call his own expert.

[34] I do not accept that last contention. The status hearing was in November 2009, by which time the appellant had had full disclosure of the prosecution’s proposed evidence. The defended hearing in the District Court did not take place until December 2010. In the intervening period, the appellant was able to prepare for the Court a comprehensive rebuttal case relying on his own expressed expertise and experience and, no doubt, in part on discussions he had had with Mr Joy at the Maritime School. In his judgment dealing with the rehearing application, Judge Davis noted that Mr Joy had been present throughout a large part of the substantive hearing and that there had been no suggestion that Mr Joy was unavailable to give evidence. The point made on behalf of the appellant was that he simply did not appreciate the importance of the expert evidence and the need for evidence presented by Maritime New Zealand to be rebutted. I cannot accept that proposition, given the degree of pre-trial disclosure and discussions, and the prosecution’s obvious reliance on Mr Young’s opinions.

[35] It is a reasonable inference from the material before me that the views expressed to the appellant by Mr Joy leading up to the defended hearing would have been favourable to the appellant’s case. The appellant could have briefed him as an independent witness, but chose not to do so. It is clear to me that the appellant made an informed decision to represent himself and to be his own expert witness, confident in his ability to persuade the Judge to accept his point of view.

[36] Furthermore, Mr Eastwood indicated that, during the three-day hearing in the District Court, Mr Joy had sought to have access to a transcript of the evidence because of his concerns about the evidence being given by Mr Young. Mr Joy’s overtures were rejected by counsel for the prosecution on the grounds that Mr Joy was not involved in the case. It would have been open to the appellant to seek an adjournment of the hearing at that point so that he could call additional evidence, including from Mr Joy. Given the sympathetic attitude Judge Davis adopted at a later stage in respect of the rehearing, I do not doubt that the Judge would have allowed any such application.

[37] In all the circumstances, I am not persuaded that Mr Joy’s evidence could not have reasonably been adduced at the hearing.

Discussion of credibility and cogency issues

[38] Having concluded that Mr Joy’s evidence fails the freshness test, I do not strictly need to go on to consider whether, if admitted on the appeal, Mr Joy’s evidence should be regarded as passing through the other two controls of credibility and cogency discussed in Bain. I have had the benefit of submissions from both counsel on those issues, however, so for the sake of completeness I indicate my views.

[39] I do not think it could reasonably be argued that Mr Joy’s evidence is not truthful and his views not sincerely held. He is obviously qualified by reference to his qualifications and experience to hold expert views on the matters at issue and Ms McClintock for the respondent did not suggest otherwise. I do not think, however, that the evidence would have been clearly admissible if an attempt had been made to adduce it at the defended hearing in the District Court.

[40] Mr Joy’s reports are highly critical of Mr Young, to the extent of accusing him of acting unprofessionally and misleading the Court. He is critical of the Judge’s findings of fact; and he extends his criticism to Maritime New Zealand for failing to meet appropriate professional standards in the conduct of its investigation. Although Mr Joy certified that he had read and understood the protocols required of an expert witness, it is arguable that he lacked the independence and objectivity the Code of Conduct for Expert Witnesses requires, and that the partisan nature of his approach meant that his evidence would not be substantially helpful to the Court. I note, however, that Judge Davis did not rule it out on that basis when he came to consider the rehearing application.

[41] Even if Mr Joy’s evidence had been admitted under s 25 of the Evidence Act 2006, I am not persuaded that it is cogent, in the sense that it might reasonably have led to the dismissal of the charges if called at trial.[8] It is clear from the reserved

substantive judgment of the District Court that, while Judge Davis was assisted by Mr Young’s evidence, his decision was based primarily on the conclusion that Classique was a vessel on the port side of Seaway II, and in a crossing situation, and that the appellant was required to take action to keep out of Seaway II’s way. This was a view reached with the assistance of the photographs taken by Captain Pigneguy at the time of the incident. Further, the Judge found “Mr Bolton to be a thoroughly unreliable witness who appeared to the Court to adopt an attitude that the

Maritime Rules did not apply to him.”[9] The Judge rejected the appellant’s

allegations of a conspiracy among members in the Maritime New Zealand fraternity to bring the prosecution against him. He also held that the appellant had deliberately chosen to ignore the Maritime Rules.

[42] Against those findings, firmly expressed, I am satisfied that Mr Joy’s evidence would not have been likely to lead the Judge to come to different conclusions. While it may seem to have been an unfair contest on technical matters between an independent expert witness and a defendant giving evidence in his own defence, on matters in which he had expert knowledge and experience, the case was decided ultimately on the assessment of what occurred at the time of the incident; the compelling evidence of the photographs taken by Captain Pigneguy; and the Judge’s assessment of the appellant’s credibility on questions of fact.

[43] Furthermore, the Judge expressed the firm view in the rehearing judgment that Mr Joy’s evidence, provided after the substantive hearing, did not persuade him that the views he reached in his reserved judgment were wrong.

Decision on preliminary point

[44] On the basis of my determination that the proposed evidence is not fresh, the application to adduce further evidence at the hearing of the appeal is declined.

[45] Nothing in this judgment is intended to impinge upon the consideration of whether there are grounds, other than those which might have been provided by Mr Joy’s evidence, to set aside the conviction.

Direction

[46] I direct that this appeal be placed in the Criminal Callover List on a date to be determined by the Registrar so that a hearing date for the substantive appeal against conviction and sentence can be allocated.

..............................................

Toogood J

---

[1] _{Maritime New Zealand v Bolton DC Auckland CRI-2009-004-020655, 14 December 2012.}
[2] _{R v Bain [2004] 1 NZLR 638 at [18]-[27].}
[3] _{Bain v R [2007] UKPC 33.}
[4] At [26]. These principles were endorsed by the Privy Council as being “well-settled” at [34] of its judgment.

[5] Maritime New Zealand v Bolton DC Auckland CRI-2009-004-020655, 14 December 2012, at [14]- [23].

[6] Maritime New Zealand v Bolton DC Auckland CRI-2009-004-020655, Minute 1, 21 March 2011 at [3]-[4].
[7] At [3].
[8] R v Bain (CA) at [24]; Fairburn v R [2012] NZSC 159, at [25].
[9] Maritime New Zealand v Bolton DC Auckland CRI-2009-004-020655, 14 December 2012, at [33].