Colin Nugent (formerly Harry Holland) v The State of Western Australia - [2014] WASCA 213

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: COLIN NUGENT (formerly HARRY HOLLAND) -v- THE STATE OF WESTERN AUSTRALIA [2014] WASCA 213

CORAM: MARTIN CJ
MURPHY JA
MAZZA JA

HEARD: 6 MAY 2014

DELIVERED : 18 NOVEMBER 2014

FILE NO/S: CACR 147 of 2013

BETWEEN: COLIN NUGENT (formerly HARRY HOLLAND)
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :DEANE DCJ
File No  :IND 65 of 2011

Catchwords:

Criminal law and procedure - Appeal against conviction - Appellant convicted of one count of possession of child pornography - Appeal against pre-trial ruling to allow prosecution application to exclude expert evidence - Whether expert evidence relevant to statutory defence on the basis the article has recognised scientific merit - Construction of statutory defence - Application to adduce additional evidence - Turns on own facts

Legislation:

Classification (Publications, Films and Computer Games) Act 1995 (Cth), s 5

Classification (Publications, Films and Computer Games) Enforcement Act 1996 (WA), s 3, s 57, s 58, s 59, s 60, s 104, s 105

Criminal Appeals Act 2004 (WA), s 40(1)(e)
Criminal Code (WA), ch XXV
Criminal Procedure Act 2004 (WA), s 98
Evidence Act 1906 (WA), s 32

Result:

Application to adduce additional evidence dismissed
Appeal dismissed

Category: A

Representation:

Counsel:

Appellant: Ms H Prince
Respondent: Ms C Barbagallo

Solicitors:

Appellant: Lyn Zinenko Lawyers
Respondent: Director of Public Prosecutions (WA)

Case(s) referred to in judgment(s):

Hill v The State of Western Australia [2009] WASCA 4
Ponniah v The Queen [2011] WASCA 105
The State of Western Australia v Holland [2013] WADC 20

REASONS OF THE COURT: This is an appeal against conviction.
The appellant was charged by indictment in the District Court as follows:
On 9 March 2010 at Murdoch [the appellant] had in his possession child pornography, in the form of issues of Rockspider magazine.
This charge was brought pursuant to s 60(4) of the Classification (Publications, Films and Computer Games) Enforcement Act 1996 (WA) (the Act). This and some other sections of the Act (excluding s 58) were repealed on 28 August 2010 and have now been replaced with similar, but not identical, provisions in ch XXV of the Criminal Code (WA). On 20 June 2013, after trial, the appellant was convicted as charged and fined $3,500. He was made a reportable offender.
The appellant makes no complaint in respect of the way in which the trial was conducted or about the learned trial judge's summing up. He does not allege that the verdict was unreasonable or could not be supported by the evidence. This appeal concerns a pre‑trial ruling made by Deane DCJ on 11 July 2011 pursuant to s 98 of the Criminal Procedure Act 2004 (WA), in which her Honour allowed an application made on behalf of the State to exclude 'expert' evidence which the appellant had sought to adduce at trial.
The single ground of appeal is in these terms:
The learned judge erred in law in excluding expert evidence thus preventing the appellant from raising a defence pursuant to s 58(a) of [the Act]: that the articles have 'recognised scientific merit'.
Leave to appeal has been granted in respect of this ground of appeal.
For the reasons which follow, the ground has not been made out and the appeal must be dismissed.

Background

On 9 March 2010, police executed a search warrant at premises in which the appellant was living on the campus of Murdoch University. Among many items seized by the police were two copies each of three separate editions of Rockspider magazine dated February 1983, June 1983 and June 1985 (exhibits 2.1, 2.2 and 2.3). The magazines were found in an archive box. The appellant has never disputed that he possessed the magazines. Indeed, at trial, he made an admission to this effect pursuant to s 32 of the Evidence Act 1906 (WA) (ts 755). It appears that the appellant had been in possession of the magazines for many years, possibly since their publication, and that he was aware of their content.
Each magazine could fairly be described as a 'backyard' production. The articles appear to have been typewritten, the pages have either been photocopied or printed on a Gestetner machine and seem to have been manually stapled down the margins. Each edition states on the cover that the magazine is 'Australia's first pedophile [sic] magazine'.
In general terms, the magazines promote sexual relationships between adults and children and seek to normalise and legitimise such behaviour. Each issue, particularly the editions dated February 1983 and June 1983, contains graphic stories of descriptions of sexual activity engaged in by children, either with other children, adults or, in one story, a dog. Not all of the material in the magazines is of this nature. There are other articles and items which are plainly not pornographic, including articles on gay and lesbian rights, feminism, the treatment of paedophiles by police and the experiences of paedophiles in prison. There are lists of books and other publications, and the location of bookshops from which such publications may be obtained. A theme which is evident in each edition of the magazine is that persons with a sexual interest in children should have the right to pursue that interest and that children should have the right to engage in and pursue sexual relationships with adults.

The statutory framework

The relevant statutory framework, as it existed at the time of the offence, is as follows.
Part 7 of the Act is entitled 'Offences'. Division 1 of pt 7 deals with offences relating to indecent or obscene articles and child pornography. Section 57 of the Act provides that div 1 does not apply to certain classified publications. It has never been asserted by the appellant that Rockspider magazine was a classified publication.
Section 59 sets out offences with respect to indecent or obscene articles.
Section 60 sets out offences with respect to child pornography. Materially, that section reads:
60. Child pornography
(1)A person who -
(a)with intent to sell or supply the child pornography or the copy to another, possesses or copies child pornography; or
(b)sells or supplies, or offers to sell or supply, to another, child pornography,
is guilty of a crime, and is liable to imprisonment for 7 years.
(2)A person who publishes -
(a)anything likely to be understood as conveying that the person publishes or supplies child pornography; or
(b)an advertisement for child pornography,
is guilty of a crime, and is liable to imprisonment for 5 years.
(3)A person who displays, exhibits or demonstrates child pornography is guilty of a crime, and is liable to imprisonment for 5 years.
(4)A person who possesses or copies child pornography is guilty of a crime, and is liable to imprisonment for 5 years.
…
Section 58 of the Act provides a defence to the offences created by pt 7 div 1, including the offences created by s 60. That section states:
58. Merit or bona fide medical article
It is a defence to a charge of an offence in this Division to prove that the article concerned is -
(a)an article of recognized literary, artistic or scientific merit; or
(b)a bona fide medical article,
and that publishing the article is justified as being for the public good.
Various terms used in ss 58 and 60 of the Act are defined in s 3. The following definitions in that section are relevant:
3. Interpretation
…
article includes -
(a)a publication;
…
child pornography means an article that describes or depicts, in a manner that is likely to cause offence to a reasonable adult, a person who is, or who looks like, a child under 16 years of age (whether the person is engaged in sexual activity or not);
…
publish includes sell, exhibit, display, distribute and demonstrate;
…
The word 'publication' is defined in s 3 by reference to the definition in s 5 of the Classification (Publications, Films and Computer Games) Act 1995 (Cth) (the Commonwealth Act) to include 'any written or pictorial matter' other than a film, a computer game or an advertisement for a publication, a film or a computer game. Rockspider magazine is obviously a 'publication' and thus an article to which s 58 may apply.
The expressions, 'recognized literary, artistic or scientific merit', 'bona fide medical article' and 'the public good' are not defined in the Act.
Part 8 of the Act is entitled 'Exemptions and exceptions'.
Section 104 of the Act provides for certain defences in relation to offences against pt 7 relating to possession of an article, including, but not restricted to, possession of the article in good faith and for the purpose of giving legal advice in relation to an article or in relation to any proceedings.
Section 105(1) gives the Director of the Classification Board appointed under s 48 of the Commonwealth Act the power, upon application to him or her, to direct that pt 7 does not apply to, inter alia, 'any publication'.
Section 105(2) of the Act gives the relevant State Minister the power, either on application or on his or her own initiative, to direct that pt 7 does not apply 'to any article'.
Nothing in s 104(1) limits the effect of s 105 or prejudices any defence available to a charge brought under pt 7 of the Act: s 104(2).
At no stage in the proceedings did the appellant seek to invoke any of the defences in s 104(1) of the Act. There is no evidence that the appellant sought or was the subject of a direction from either the Director or the Minister pursuant to s 105.

Proceedings before Deane DCJ

Prior to the trial, perhaps on or about 27 May 2011, the appellant gave the prosecution notice of his intention to adduce evidence from three academics - Dr Terry Leahy, Dr Steven Angelides and Dr Graham Willett - in support of a defence under s 58(a) of the Act. Specifically, the appellant contended that the proposed evidence was expert evidence which was relevant to whether the magazines had recognised literary or scientific merit. It has never been contended that the magazines had recognised artistic merit or were bona fide medical articles.
The prosecution objected to the proposed expert evidence in its entirety. As mentioned, on 11 July 2011, Deane DCJ upheld this objection. As a consequence, the appellant did not rely at trial upon a defence under s 58 of the Act. Ultimately, the only defence pursued by the appellant was that the magazines, when read as a whole, did not constitute child pornography, a contention the jury, by its verdict, rejected.

The evidence in question

Prior to the s 98 hearing, her Honour was provided with written reports from each of the proposed experts. None of the prospective witnesses was required for cross‑examination. It appears that each of the witnesses was familiar, in general terms, with Rockspider magazine, but none of them had viewed the particular magazines the subject of the charge. We will refer to the reports upon which her Honour's decision of 11 July 2011 was based as 'the first set of reports'. It is necessary to do this because later, at some point after 11 July 2011 but before the trial, each witness was given access to the magazines the subject of the charge. Following this, each of them prepared a further report. The opinion of each witness and the reasoning in support of that opinion, in substance, did not change. These reports will be referred to as 'the second set of reports'.
The appellant did not seek to rely upon the second set of reports to support a defence under s 58(a) of the Act. He applied to her Honour to adduce them at trial on the basis that the evidence would assist the jury to determine whether the material constituted child pornography. On 19 February 2013, her Honour dismissed this application: The State of Western Australia v Holland [2013] WADC 20. This decision has not been challenged by the appellant.
However, in this appeal, the appellant sought leave pursuant to s 40(1)(e) of the Criminal Appeals Act 2004 (WA) to adduce, as additional evidence, the second set of reports. We will deal with this application in due course.
For the moment, the focus of our analysis will be upon the first set of reports. Of these, the only one which is dated is Dr Leahy's report.

Report of Dr Terry Leahy - 17 March 2011 (White AB 27 ‑ 29)

As at the date of his report, Dr Leahy was a senior lecturer in sociology at the University of Newcastle in New South Wales. In 1990, he was awarded a PhD for his thesis, 'Negotiating Stigma: Approaches in Intergenerational Sex'. This involved research into 'positively experienced intergenerational sexual relationships'. During his study, he 'followed up academic research on the broader topic of paedophilia and intergenerational sex'. Since 1997, his areas of academic interest have changed, although he has maintained an academic interest and is aware of developments in recent years in these fields.
In his report, Dr Leahy explained that, following the sexual liberation movement in western societies in the 1960s and 1970s, other movements developed, including 'a movement of child sex liberation' and 'the paedophile movement'. He wrote that in the 1980s there was 'a strong and open movement of paedophiles, and people who supported [their] civil liberties … the liberty to put their case and have it debated'. He asserted that by the end of the 1980s, these movements had largely vanished.
According to Dr Leahy, 'the overt paedophile movement is a matter of interest for historians and social scientists studying the sexual liberation movements of the seventies and eighties'.
Dr Leahy wrote that, in the course of his research in the 1980s, he was aware of Rockspider magazine and had viewed some issues of it. He stated that Rockspider magazine was a publication 'that makes sense in the context of [the paedophile] movement in the early 80's'. He asserted that the magazine 'provide[s] an important insight into these movements in the 80's and therefore [is] an important resource for historical and social researchers'.

Report of Dr Steven Angelides - undated (White AB 30 ‑ 33)

Dr Angelides was awarded a doctorate by the University of Melbourne. He has been engaged in research in the field of the history and sociology of sexuality for almost 20 years. His PhD research concerned the gay liberation movement and what he described as the child sexual liberation movement in the 1970s and 1980s. For the 'last 12 years' he has been conducting 'historical and sociological research specifically on paedophilia, intergenerational sex, and child sexuality'. Dr Angelides states that he has been awarded 'numerous research fellowships by peak university and research bodies'.
According to Dr Angelides, Rockspider magazine was produced in a 'social and historical context … vastly different than today's'. He explained that it was produced in a time of 'widespread revolutionary fervour among homosexual activists, sexual libertarians, young people, and feminists with regard to sexuality and to transforming what they believed were society's repressive sexual attitudes and laws'.
He described Rockspider magazine as 'an historical artefact of a very different historical moment' and as 'an important and invaluable resource for understanding our changing sexual cultures and attitudes'. As a result, he regards the magazine as having 'literary and scientific merit' and that it was 'for the public good, that Rockspider be available to be studied'.

Report of Dr Graham Willett - undated (White AB 34 ‑ 36)

Dr Willett was awarded a doctorate from the University of Melbourne in 1998. Since 2000, he has been employed by that university. As at 2011, he was a senior lecturer in Australian Studies, specialising in gay and lesbian history. Dr Willett has also been involved in the gay rights movement since 1979 and has since, from time to time, been involved in 'a number of gay activist organisations'. He is an active member of the Australian Lesbian and Gay Archives.
Dr Willett stated that from his own involvement in the gay rights movement he became aware 'of the importance of the issue of paedophilia in two different contexts'. First, through 'the issue of intergenerational sex' and, second, through 'paedophiles themselves … raising the issue within the broader context of the struggle for sexual freedom'.
Dr Willett went on to state that sources such as Rockspider magazine revealed 'rare and valuable insights into sexual feelings and sexual behaviours that are rarely heard'. He wrote that, as a historian, he greatly valued such material. He noted that 'many libraries and archives hold sexually explicit material in their research collections'. He expressed the view that:
However shocking some might find this material, it is of inestimable importance to historians, sociologists and all of those interested in understanding our society and its past in all its diversity.

Deane DCJ's reasons

Her Honour identified the issue to be determined as whether the proposed expert evidence was relevant to the question of whether the appellant could avail himself of a defence that the articles were of recognised literary or scientific merit under s 58(a) of the Act, if the articles were found to constitute child pornography. Her Honour analysed each report separately. She noted that although none of the authors had seen the articles the subject of the charge, they had not said that they would be assisted by seeing them.
The judge concluded that the reports were not relevant to the question of whether the magazines had recognised literary merit. This conclusion has not been challenged in this court and nothing more needs to be said about it.
As to the question of recognised scientific merit, her Honour observed that each report was to the same effect, that is, that the magazines were an important resource or historical artefact to researchers in the social sciences. However, this did not mean that they were articles of recognised scientific merit, as she understood that expression in the context of s 58(a) of the Act.
Her Honour considered that the word 'merit' in the phrase 'recognized scientific merit' was qualified by the word 'recognized'. She said 'recognized merit' referred to the article in question being publicly acknowledged 'within an identified community or body of study, in the sense that there is recognition within a particular field of study' (ts 185). Her Honour said:
As a matter of logic, it would therefore seem that individuals engaged in that particular field of study recognise or acknowledge that material has merit, although it does not necessarily follow that society as a whole recognises that merit (ts 185).
As to the word 'scientific' in s 58(a) of the Act, her Honour acknowledged, in substance, that the word was capable of being more widely construed as including the social as well as the natural sciences or more narrowly construed as referring only to the natural sciences. Her Honour preferred the narrow construction (ts 188).
It appears from her Honour's reasons that, however the word 'scientific' was construed, the proposed expert evidence was inadmissible because each witness in substance stated no more than that the articles were an important research resource and did not address the issue of whether the articles themselves had recognised scientific merit.

The parties' submissions in this appeal

Counsel for the appellant submitted that the phrase, 'recognized scientific merit', in s 58(a) of the Act should be construed broadly in favour of an accused. Specifically as to the word 'scientific', it should be construed in the broader sense as including social sciences such as history and sociology. Counsel contended that Drs Leahy, Angelides and Willett were all suitably qualified social scientists who could give relevant expert opinion evidence as to whether the Rockspider magazines were articles of recognised scientific merit. As to the magazines themselves, counsel did not argue that they were themselves works of science. She acknowledged that there was nothing academic about them. Her contention was that it was enough for the magazines to constitute an article of recognised scientific merit if they were recognised as being something 'which may be useful for subsequent scientific research' (ts 16). She submitted that, as the opinions of the proposed experts were all to this effect, their opinions were admissible and the judge erred in deciding to the contrary.

On the question of the construction of s 58(a) of the Act, counsel for the respondent accepted that there were difficulties with a narrow construction of the word 'scientific'. Nonetheless, counsel submitted that the statutory language in s 58(a) focused attention on the article in question and whether it has recognised scientific merit. The respondent submitted that it was not to the point that the article was merely a resource for research or an historical artefact. She submitted that as the proposed expert evidence was to this effect, it was irrelevant and thus inadmissible.

The proper construction of s 58 of the Act - General observations

We have already set out the statutory framework in which s 58 of the Act appears as it applies to child pornography. The policy underpinning the section is clear and readily apparent.
It is an offence to possess, sell, publish or display child pornography. The production of child pornography involves and depicts the sexual abuse and exploitation of vulnerable children and causes incalculable harm: Hill v The State of Western Australia [2009] WASCA 4 [28]. Child pornography has the tendency to 'normalise' exploitative sexual activity involving children and may stimulate a susceptible recipient to engage in sexual activity involving real children: Ponniah v The Queen [2011] WASCA 105 [38]. The suite of offences relating to child pornography in s 60 of the Act (and now contained in ch XXV of the Criminal Code) was designed to protect children. However, balanced against the public policy we have just described, Parliament recognised that, in certain circumstances, possession of child pornography may be justified. Some of those circumstances are practical in their nature, for example, the circumstances set out in s 104(1) of the Act. Section 105 of the Act enables the Director or Minister to give a direction which, in substance, exempts a person from the application of pt 7 of the Act. Thus a person who, for legitimate purposes, wishes to possess material that may be considered to constitute child pornography is protected from prosecution or the risk of prosecution in relation to that material by satisfying the Director or Minister that their possession of that material is justified. The persons who may apply for an exemption and the circumstances in which an exemption may be made are not specified and are left to the judgment of the Director or Minister.
In contrast to s 105 of the Act, the defence in s 58 applies to a number of specified categories of articles, albeit broadly described. As the language of the section makes clear, the onus is upon the accused to establish the defence. The standard of proof is on the balance of probabilities.
Section 58 has two limbs, both of which must be satisfied. First, the article must have recognised literary, artistic or scientific merit or be a bona fide medical article. Second, publishing the article must be justified as being for the public good. Both limbs are objective in nature. In other words, the defence cannot be made out merely by the subjective belief of an accused as to either or both of the two limbs.

Disposition

The essential question for determination is whether, on the proper construction of s 58 of the Act, the written reports of the three academics on which the appellant sought to rely were relevant to a defence under s 58(a) of the Act, because the opinions expressed on those reports were probative, as a matter of logic, of the recognised scientific merit of the magazines.
The determination of this question involves the proper construction of s 58(a) of the Act and a consideration of the substance of the proposed evidence.
The words 'recognized … scientific merit' in s 58(a) of the Act must be construed in the context of s 58 and in the context of the Act as a whole and, in particular, pt 7 of the Act.
Section 58(b) of the Act may be contrasted with s 58(a). Section 58(b) concerns any medical article, providing it is bona fide in the sense of a genuine medical article. The word 'medical' in this context has its ordinary meaning of 'of or relating to the science or practice of medicine' (Macquarie Online Dictionary). The word 'article' itself is defined to include, amongst other things, a publication or a film.
Section 58(a) of the Act deals with other, specified, non‑medical articles. The articles which are the subject of s 58(a) concern the fields of 'literary', 'artistic' and 'scientific' endeavour. The field of scientific endeavour is the only field of endeavour relevant to this case.
The word 'scientific' is susceptible to varying meanings. 'Science' is defined in the Macquarie Dictionary (4^th ed) and in the Macquarie Online Dictionary as:
1(a).the systematic study of the nature and behaviour of the material and physical universe, based on observation, experiment and measurement, often leading to the formulation of laws to describe the results of such procedures in general terms …
2.a particular branch of this.
3.systemised knowledge in general.
…
The first of these definitions would cover the natural sciences such as physics, chemistry, geology and biology. It would also cover the human sciences, such as medicine, physiology, human biology and psychology, although the field of medicine is, of course, also specifically addressed in s 58(b). The third limb of the definition would include 'social sciences' such as economics, sociology, anthropology and political science, although given the spectrum of fields commonly described as 'scientific', the precise categorisation of any particular field may be contestable.
Viewed in the context of the Act as a whole, there is nothing in the language of s 58 of the Act which would suggest that the ambit of the defence should extend only to the fields of natural or human science, but not to the fields of social science. In particular, there is nothing in the language of the section which would suggest that articles in the fields of physiology, human biology and psychology should come within the section, but articles in the fields of sociology or anthropology should fall outside the section. Thus, contrary to the judge's tentative view, the interpretation of the word 'scientific' in s 58(a) does not require a choice of the natural sciences or human sciences over the social sciences. The word is capable of embracing disciplines in all branches of science. Beyond these general observations it is unnecessary and undesirable to attempt to provide an all‑encompassing definition of the word 'scientific' where it appears in s 58(a) of the Act.
Further, in s 58, the phrase, 'recognized scientific merit' in s 58(a), relates to the 'article concerned', ie, the article which describes or depicts child pornography. The focus of the phrase is upon the characteristics of the article itself, and whether the article itself has recognised merit.
We now turn to the words, 'recognized' and 'merit'. As her Honour pointed out, the former qualifies the latter. It is not enough that an article have literary, artistic or scientific merit. Any such merit must be recognised. In the context of an objective evaluation of an article which necessarily involves an assessment of its nature, the recognised merit of the article refers to whether a respectable body of the relevant literary, artistic or scientific community recognises the intrinsic quality of the article.
We will assume, in the appellant's favour, the expertise and bona fides of each of Drs Leahy, Angelides and Willett in some relevant branch of social science, such as sociology. We will also assume, again in the appellant's favour, that a study of the paedophile 'movement' (as Dr Leahy put it) in the 1970s and 1980s is a matter of legitimate sociological inquiry.
We note that Dr Angelides stated in his report that in his opinion Rockspider magazine had literary and scientific merit. However, he did so in the context of referring to the magazine as an historical artefact and as a resource for understanding 'changing sexual cultures and attitudes'.
There is a fundamental difference between the subject of a scientific study or analysis and the product of a scientific study or analysis which has been recognised to have merit. Section 58 of the Act is concerned only with the latter, and does not include the former.
The fundamental and insurmountable difficulty which confronts the appellant is that, as we have explained, s 58 requires the article the subject of the charge to itself have recognised scientific merit. None of the proposed expert testimony, properly construed, addresses this requirement. Indeed, as we have already pointed out, the appellant's counsel accepted that there was nothing scientific or academic about the editions of Rockspider the subject of the charge. It follows that the prospective evidence, at its highest, went only to the question of whether the magazines could be the subject of scientific study. None of the evidence, properly construed, addresses the question of whether the magazines were the product of scientific study or analysis and have been recognised by a relevant scientific community as having merit. The evidence was rightly excluded for this reason.
Issues addressed in the prospective evidence as to whether Rockspider magazine (that is the publication in general) was:
(a)a resource for research; or
(b)an historical artefact; or
(c)something worth preserving in an archive or library
could not rationally affect, either directly or indirectly, the issues to be decided by a jury in respect of a defence under s 58 of the Act.
Although not raised in this appeal, it may be that issues of that kind might be addressed by an application for an exemption under s 105 of the Act.
For these reasons, the proposed expert testimony was irrelevant and was properly excluded by her Honour, even though her construction of the word 'scientific' was too narrow.
Subject to the application to adduce additional evidence in the appeal, the ground of appeal has not been made out.

The application to adduce additional evidence

As we have said, the appellant has applied to adduce as evidence in this appeal the second set of reports, being reports written by each of Drs Leahy, Angelides and Willett after they viewed the editions of Rockspider magazine which were the subject of the charge. The second set of reports (White AB 10 ‑ 26) are more expansive than the first set of reports. Their evident purpose is to address in greater detail matters which were said to be connected to the issue of whether the magazines the subject of the charge constituted child pornography. They add nothing of substance to any issue with respect to s 58 of the Act and are, accordingly, irrelevant. In these circumstances, the application to adduce additional evidence must be dismissed. In the light of what we have said earlier, so too must the appeal.

Orders

We would make the following orders:
1.The application to adduce additional evidence is dismissed.
2.The appeal is dismissed.