The Principle of Freshness to be Considered in an Application to Admit further Evidence

The Principle of Freshness to be considered in an application to admit further evidence is shorthand for the requirement in the Summary Proceedings Act that the evidence “could not in the circumstances have reasonably been adduced at the hearing”
Judge Toogood decided “In all the circumstances, I am not persuaded that Mr Joy’s evidence could not have reasonably been adduced at the hearing”
Mr Joy had informed the Court in an affidavit clarifying his availability “that I was not available to act as an expert witness during the hearing due to my employment. The policy of my employer, the NZ Maritime School, regarding staff acting as expert witnesses was such that any action required the approval from the Director, Mr Tim Wilson. I considered that with Mr Bolton being without legal counsel & also Mr Young (a tutor with contract relationship with the school) acting for Maritime NZ, that there would be no chance of my achieving approval to act as a witness for Mr Bolton or as an expert for the Court, So I did not even make the request. I attended the December 2010 Court hearings for the obvious reasons of professional & educational interest, making my attendance around school commitments. A colleague also attended on most occasions & also a couple of students. I updated & discussed Court events with my colleagues at the Maritime School. In December 2011, I retired from NZ Maritme school, so since that date have been free to act independently in this matter. My work now is in the roles of Director of my company ‘Navskills Ltd’ through which I also contract tutoring services to the NZ Maritime School.”
Judge Toogood doesn’t appear to have read Mr Joy’s Affidavit which surely should have been included in all the circumstances he says were influential in his negative decision. Perhaps he didn’t grasp that Mr Joy’s Report was not necessarily new evidence – Mr Bolton’s evidence at Court was given accurately & fully covered almost entirely the same critical Nautical information. Mr Joy’s Report backed up 100% Mr Bolton’s evidence, giving it validity.
Judge Toogood said that Mr Joy’s Report was highly critical of Mr Young to the extent of accusing him of acting unprofessionally & misleading the Court & critical of Judge Davis’s findings of fact & critical also of MNZ for failing to meet appropriate professional standards of investigation, consequently Judge Toogood thought it was partisan & may not be substantially helpful to the Court leading to the dismissal of charges”
Mr Joy clarified that it was made abundantly clear & all the parties at the hearing were aware, that as I had attended most of the hearing & that as my report was to be totally written after the hearing, I had logically formed a professional opinion of the evidence presented. The prosecution argued against my report commission on this basis but Judge Davis approved the writing of my report in the interests of justice. He did not “rule it out” as he had agreed to its production. Clearly, the emphasis of my report must therefore be of significant professional difference to a report written before the hearing. I declare again that I have read the Expert Witness protocols & code of conduct & believe that I have closely followed them. I have worked within the area of my expertise & have clearly & openly stated my conclusions & reasons for them. It was clearly in the interests of the case in producing my report, as directed by Judge Davis, to establish a professional witness foundation for solid advice to the Court. In the interests of clarifying the issues & assisting the Court, I therefore believe I have carried out my duties in a sound, professional expert manner.”
It appears that the significance of Mr Joy’s report was entirely lost by Judge Toogood who seems to have no more Nautical understanding than Judge Davis, of the navigational principles involved in the application of Maritime Rules regarding Collision Prevention.
“In the Interests of Justice” seems to a plausibility Judges are perhaps obliged to portray in their PC environment.

Judge’s seem to differ in practicality

When this book comes out, it might make an improvement – the need must’ve been apparent to the author.
InterstJustice (26)

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