Johnston v Electrical Workers Registration Board

[2022] NZHC 3155

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE

CRI-2022-443-55

[2022] NZHC 3155

UNDER

the Criminal Procedure Act 2011

IN THE MATTER OF

an appeal against sentence

BETWEEN

IAN LESLIE JOHNSTON

Appellant

AND

ELECTRICAL WORKERS REGISTRATION BOARD

Respondent

Hearing:

29 November 2022

Counsel:

M J Utting for the Appellant

D P Neild and A G McCluskey

Judgment:

29 November 2022

ORAL JUDGMENT OF CHURCHMAN J

[1]        Part of the appeal in this case involves an application by the appellant for the admission on appeal of further evidence that was not before the District Court at the time of sentencing.

[2]        In support of the application, Mr Utting accepts that the information sought to be submitted could potentially have been found earlier but he raises the issue of who the obligation to put the information before the Court fell on. He suggests that the obligation was on the prosecution – in this case the Electrical Workers Registration Board.

[3]        Mr Neild in opposition to the application points out that the information is not fresh. He also submits that the victim impact statement which detailed issues to do

JOHNSTON v ELECTRICAL WORKERS REGISTRATION BOARD [2022] NZHC 3155 [29 November 2022]

with reparation raised by the victim was provided to the appellant some time prior to the sentencing. Therefore the claims made by the victim in terms of the reparation application would have been known and would have been able to be checked.

[4]        The law in relation to applications to submit further evidence on appeal is settled. Such applications are rarely granted: they must meet the test of the evidence firstly being fresh, secondly not having had been obtainable with reasonable diligence at the time of the hearing below and thirdly they must be relevant in the sense that they must potentially have an impact on the outcome.

[5]        In this case I am not satisfied that the information could be described as being fresh. Neither could it meet description of not having been obtainable. Thirdly, having reviewed the evidence I am unconvinced that it would have had any particular influence on the outcome of the sentencing.

[6]On that basis, I decline the application to admit further evidence on this appeal.

Churchman J

Solicitors:

Thomson, O’Neil & Co, Eltham, for Appellant Crown Solicitor, Wellington, for Respondent