JAN ANTOLIK V R [2017] NZCA 576

JAN ANTOLIK V R [2017] NZCA 576 [8 December 2017]NOTE: DISTRICT COURT AND HIGH COURT ORDERS PROHIBITNGPUBLICATION OF THE NAME OF THE APPELLANT'S MOTHER ANDDETAILS OF HER TESTIMONY, AND THE NAMES OF THEAPPELLANT'S COMPANY AND BRANDS REMAIN IN FORCE.IN THE COURT OF APPEAL OF NEW ZEALANDCA302/2016[2017] NZCA 576BETWEEN JAN ANTOLIKAppellantAND THE QUEENRespondentHearing: 8 November 2017Court: Gilbert, Lang and Ellis JJCounsel: D P H Jones QC for AppellantJ C Pike QC and M L Wong for RespondentJudgment: 8 December 2017 at 12 pmReissued: 11 December 2017 at 10 amJUDGMENT OF THE COURTA The application to adduce further evidence is declined.B The appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Gilbert J)Introduction[1] Following a trial by jury in the District Court at Auckland Jan Antolik wasfound guilty of importing five kilograms of the class B controlled drug MDMA(commonly known as ecstasy). The MDMA was concealed in cartons of fruit juiceimported from the Czech Republic in a shipping container that arrived inNew Zealand in September 2014. Mr Antolik was convicted and sentenced byJudge Thomas to five years and nine months' imprisonment.1[2] Mr Antolik appeals against his conviction on the grounds that the jury'sverdict was unreasonable and a miscarriage of justice has occurred. He claims thatthe investigation carried out by Customs and Police was inadequate and led to latedisclosure and errors in the Crown evidence. Mr Antolik contends that this resultedin the onus of proof effectively being reversed. He argues that proper enquirieswould have revealed the reasonable possibility that someone put the drugs in thecontainer without his knowledge in order to frame him. Mr Antolik applies toadduce further evidence from a private investigator in the Czech Republic. Hecontends that this further evidence fills some of the gaps the Crown ought to haveaddressed in its own investigations and supports his claim that he was framed.[3] In order to understand Mr Antolik's criticisms and the potential significanceof the further evidence he wishes to introduce, it is necessary to review the relevantfacts in a little detail. We start by summarising the facts surrounding the drugimportation before setting out the circumstances relied on by Mr Antolik to supporthis contention that he was framed. This will set the context against which both theappeal and the application to adduce further evidence must be considered.The facts[4] Mr Antolik is 36 years of age. His real name is Karel Sroubek. He was bornin the Czech Republic and came to New Zealand under his assumed name ofJan Antolik when he was in his early twenties. The circumstances in whichMr Antolik changed his name and came to New Zealand are relevant to one of thepossible framing scenarios he advanced. However, it will be convenient to detailthose circumstances later.1 R v Antolik [2016] NZDC 10561.Distribution agreement with Maspex[5] In August 2008 Mr Antolik and his wife formed R Ltd.2 Mr Antolikexplained at the trial that he chose this name because it was the brand name of a fruitjuice manufactured by Maspex Czech (Maspex) in the Czech Republic. However,his company did not commence importing juice from Maspex until January 2010when it entered into a distribution agreement with that company.[6] This distribution agreement was terminated one year later, in January 2011.Mr Antolik explained that he terminated the agreement because Maspex wanted tochange the brand name of the juice to "Tymbark", the name of a village in Polandwhere Maspex has its head office. Mr Antolik said that this name was not suitablefor the English-speaking market he was supplying. He says that his company has notimported any further Maspex products since that time for that reason. Nevertheless,it appears that Maspex continued to market fruit juice under the R brand name afterthis date because the MDMA was found concealed in R-branded fruit juice cartons inSeptember 2014.Distribution agreement with Linea Nivnice[7] Mr Antolik's mother lives in the Czech Republic and acted as the Czechagent for Mr Antolik's company.3 She operates under the business name"AGS Studio". Following termination of the agreement with Maspex, she enteredinto an agreement on behalf of R Ltd with another juice supplier in theCzech Republic, Linea Nivnice (Linea), which supplies juice under the N brand.4She also contracted with Tetra Pak to supply the N-branded packaging to Lineawhich then filled the cartons with juice. The juice would then be packed in shippingcontainers for collection by a transport company. The transport and shipments toNew Zealand were arranged by CS Cargo, a major freight company inCentral Europe.2 The name of this company was suppressed by order of Judge Thomas in the District Court (R vAntolik, above n 1, at [24]) and this order was confirmed by Duffy J on appeal to the High Court(Solicitor-General v Antolik [2016] NZHC 2643 at [67]). This Court declined leave to appeal:A (CA605/2016) v R [2017] NZCA 49.3 Judge Thomas also suppressed the name and testimony of Mr Antolik's mother: R v Antolik,above n 1, at [11].4 The name of this brand is also suppressed: R v Antolik, above n 1, at [24].Store Rite Logistics[8] Following clearance by Customs, containers imported by R Ltd weretransported by Mainfreight International Ltd (Mainfreight) to the warehouse ofStore Rite Logistics Ltd (Store Rite) in East Tamaki, Auckland. Store Rite personnelwould remove the container seal with bolt cutters, open the container and unload theproduct. Any inspection required by the Ministry for Primary Industries would becarried out at this time. The product would then be distributed to customers,including supermarkets.Container shipment — September 2014[9] In July 2014 Mr Antolik's mother arranged with CS Cargo for a shippingcontainer loaded with juice to be sent from Linea's premises to R Ltd in Auckland.The container was loaded by Linea personnel. CS Cargo arranged for a truck tocollect the container and it left the Czech Republic on 28 July 2014. The containerarrived at the port of Tauranga on 17 September 2014.Vertex Property Investments Ltd[10] In February 2011, following the change from importing R-branded juice fromMaspex to N-branded juice from Linea, Mr Antolik incorporated N Trading Ltd.5 Hechanged the name of this company to Vertex Property Investments Ltd (Vertex) inJune 2014. He said he did this because he was investigating a new business ventureto import into New Zealand prefabricated walls for use in the construction of houses.These walls were manufactured in the Czech Republic. Mr Antolik said he opened abank account for this company and obtained GST registration for it in August 2014.Vertex signed an exclusive distribution agreement with the manufacturer,HK-Drestav, on 15 September 2014.[11] On 5 September 2014 Mr Antolik opened a separate post office box inShortland Street, Auckland for Vertex (he already had a post office box inShortland Street for R Ltd). Mr Antolik said he did this because he was expecting to5 The name of this company is also suppressed: R v Antolik, above n 1, at [24].receive samples of building materials for the prefabricated houses to determinewhether these products would be suitable for use in New Zealand. He said heprovided details of the new post office box to his mother so she could arrange forsamples to be sent there.Buffer machine arrives at Vertex's post office box with two shipping container sealshidden inside[12] On 15 September 2014 a package arrived from the Czech Republic at theInternational Mail Centre at Auckland International Airport. The consignor's namewas similar to, but not exactly the same as Mr Antolik's mother's name. The addressof the consignor was the same as that of his mother except that the unit number wasnot shown, only the street number. The contents of the package were described as"car accessories". The consignee was Vertex and the address was the post officebox Mr Antolik had recently opened.[13] Upon inspection by Customs staff at the airport, the package was found tocontain an electric car buffer machine. Concealed inside the motor cavity of thismachine were two shipping container seals comprising two bolts and two cylinderseach of a different type and with a different identification number. These are used toseal the doors of shipping containers and are designed so that once they are brokenthey cannot be reused. This enables Customs to detect whether a container has beentampered with or opened prior to clearance. A Customs officer at the airport made acut in each of the bolts so that they could be subsequently identified and took a noteof the numbers on the cylinders (one of these was CZ01118711). The buffermachine was then repackaged with the marked seals inside it and returned to themail system for delivery.[14] Mr Antolik was expecting a package to arrive. His mother had sent him thetrack and trace number for it. Mr Antolik said he expected the package to containsamples of building materials for his proposed new business. On Thursday18 September 2014 Mr Antolik collected the package from Vertex's post office box.He said he did not notice that the Customs declaration described the contents as"car accessories" and he was not expecting a buffer machine. He removed the buffermachine from the box after he got home. He said he heard a rattling noise indicatingthat something was loose inside it. He said he plugged the machine in but it did notwork. He said that he became "curious" and opened the machine up to see what wascausing the rattling. He found the two seals inside. He said he thought these mayhave "got in there by accident", "maybe in the factory". Although he "found itweird", he said he "didn't pay much attention". He put the buffer machine backtogether and left it in his garage. He initially said he put the seals into a drawer inhis office and "just forgot about it". However, Mr Antolik later retracted this andsaid that he threw the seals in the bin with the packaging. He claimed that he did notdraw any link between the seals and any shipping container at that time.Shipping container arrives in New Zealand[15] On 17 September 2014 the shipping container with the fruit juice consignedto Mr Antolik's company arrived at the port of Tauranga. The waybill showedMr Antolik's mother of AGS Studio in Prague as the shipper. R Ltd was shown asthe consignee. The container number on the waybill was correctly shown asMRKU7568932 but the seal number was incorrectly recorded as CZ01118711. Thismatched the number on one of the seals that was found hidden in the buffer machine.However, the seal number recorded on the waybill and on the seal found in the buffermachine did not quite match the seal on the container because both had an additional"1" (the seal number on the container was CZ0118711). This discrepancy betweenthe number on the waybill and the number on the seal of the container was noted bya Customs officer at Tauranga.[16] After the seals were found in the buffer machine, a Customs officer wasassigned to the task of ascertaining whether the seal numbers matched any containerarriving from the Czech Republic over a three-month period. On Friday19 September 2014 this Customs officer established that a container with a matchingseal number had recently arrived at the port of Tauranga. On checking at that portshe found that the container had already been dispatched to Metroport, a Customsbonded area at Onehunga, Auckland. She immediately directed two other Customsofficers to go to Metroport but on arrival they discovered that the container had justbeen collected by Mainfreight and was on its way to Store Rite's premises inEast Tamaki. Instructions were then given to the driver to take the container, whichhad not yet been opened, to a secure inspection facility at the Auckland wharf.[17] Just after 7.30 that evening, Customs officers opened the container and foundthat it contained pallets of juice cartons, all but 10 of which were branded "N".Seven of the other cartons were branded "R" and three were branded "H". TheR-branded cartons were stacked on the top layer nearest to the doors of the containerwith the H-branded cartons underneath. Twelve one-litre Tetra Pak juice "bottles"were packed into each of the seven R-branded cartons. Six of these cartons had asingle Tetra Pak bottle with a zip lock bag containing MDMA powder concealedinside.[18] Mr Antolik's evidence was that he received a telephone call from a person atMainfreight at about 5 pm that day advising him that the container had beenredirected to the Port of Auckland to be examined by Customs. He was told thatthere was an issue with the seal. Mr Antolik said that his biggest concern was that hewould not be able to make his scheduled delivery of juice to a supermarket client thefollowing Monday. He said he decided to retrieve the seals that had arrived insidethe buffer machine from his bin and check the numbers against the shippingdocuments he had saved on his computer. He said this was when he discovered thatthe number on one of the seals matched the seal number on the shipping documents.He said he found this "really strange and bizarre" and he decided to take the seals toCustoms the following day to "find out what's happening with the container".[19] Mr Antolik was under police surveillance on Saturday 20 September 2014when he drove to the main entrance and security checkpoint for thePort of Auckland. He got out of his car and was seen observing the securitycheckpoint for approximately three minutes. He then drove to the secondary portentrance before driving off. Mr Antolik was arrested later that day as he was drivingwith his wife in the vicinity of the Auckland airport near the Customs office. Policefound the two shipping container bolts in the pocket of Mr Antolik's trousers. Thecylinders were in Mr Antolik's jacket pocket on the back seat of the car. Police alsofound a "post-it" note on the front passenger seat recording the container numbermatching the shipping documents and the seal found in the buffer machine —CZ01118711.Crown case[20] The Crown's case was that Mr Antolik was knowingly involved in theimportation of the MDMA. The Crown contended that Mr Antolik's explanationabout the buffer machine with the seals hidden inside it was implausible. The Crownsuggested that the seals were sent by Mr Antolik's mother to enable him to open thecontainer, remove the drugs and reseal it without anyone knowing.Defence case[21] Mr Antolik and his mother gave evidence. Both denied having any knowinginvolvement in the importation of the MDMA or the buffer machine with the hiddenseals. They suggested that Mr Antolik must have been framed. Two unrelatedscenarios were suggested as providing the potential motivation for someone to seekrevenge against Mr Antolik by framing him as the importer of the MDMA.[22] The first arose out of an incident in September 2003 in which a man was shotdead in Mr Antolik's presence. Mr Antolik said the shooter had been a passenger inhis car after they had been socialising in a bar in central Prague. After stopping atthe passenger's request, Mr Antolik said the passenger struck a man over the headwith a beer bottle. This led to a fight during which the passenger shot the other man.Mr Antolik said he did not see the shooting because he was running back to his car atthe time this occurred. The passenger got back into the car and instructedMr Antolik to drive away, saying "I think I shot the guy". Mr Antolik observed thatthe passenger had a gun in his hand.[23] Mr Antolik claimed he was visited two days later by two Czech policemen.He said the policemen must have been bribed by the shooter because they pressuredhim to give a false account that he had seen the incident and could confirm that thegun had discharged accidentally. Mr Antolik claimed that when he declined to givesuch false evidence, he was threatened with being charged as an accessory to murder.He said the police told him that if he went into hiding, he would be declared afugitive from justice and could be shot on sight.[24] Fearing for his safety, Mr Antolik said he fled to New Zealand. He said hisfriend, Jan Antolik, had two passports and gave him one of these. He enteredNew Zealand using this false name and passport.[25] In late 2011 Mr Antolik was found guilty by a jury in the District Court atAuckland of four charges of supplying false or misleading information contrary tothe provisions of the Immigration Act 1987 and one charge of possessing a falsepassport contrary to s 31 of the Passports Act 1992. Judge Wade acceptedMr Antolik's explanation about the background circumstances described above anddischarged him without conviction on each of these charges.6[26] During the course of the trial for the present offending Mr Antolik's motherproduced a Czech newspaper article relating to this prosecution which included aphotograph of Mr Antolik and referred to his assumed and real names. This articlealso referred to the murderer who had been a passenger in Mr Antolik's car andstated that he had been sentenced to 10 years' imprisonment. Although Mr Antolik'smother was not able to say whether the murderer would have served his fullsentence, the implication was that he might have been motivated to seek revengeagainst Mr Antolik for failing to provide false evidence and the timing of his releasemay have coincided with the timing of the drug shipment. Further, the evidence wasthat although in 2014 five kilograms of MDMA would sell for over $350,000 inNew Zealand, it could be purchased in Europe for a small fraction of that price atthat time. The cost of framing Mr Antolik by this means would therefore have beenconsiderably less than $350,000.[27] The second scenario described in evidence as potentially providing amotivation to frame Mr Antolik arose out of his mother's purchase of a diamondfrom a merchant in the Czech Republic, TrustWorthy Investment CZ (TrustWorthy).Mr Antolik said his mother purchased this diamond on his behalf for an engagementring. The purchase agreement was between R Ltd and TrustWorthy and is dated6 R v Antolik DC Auckland CRI-2009-004-25486, 21 December 2011.20 March 2014. Mr Antolik's mother claimed that TrustWorthy supplied a diamondthat was substantially inferior to the one she had purchased. She said that when shesought return of her money she was referred to Michal Spurny, the principal ofTrustWorthy. She said that during a telephone conversation in May 2014, Mr Spurnythreatened her by saying words to the effect that she needed "to be careful with [her]decision making" and "that [she] and [her] son could end up in a jail". Mr Antolik'smother said she responded by saying that if anyone was going to end up in jail itwould be Mr Spurny and his associates. She engaged lawyers to write on her behalfand they made a formal complaint of fraud against TrustWorthy to theDistrict Attorney's office in Prague on 30 June 2014. The defence implied theseevents could also fit with the timing because the container left the Czech Republicby ship one month later, on 28 July 2014.[28] Mr Antolik's mother denied any involvement in sending the buffer machinewith the seals to her son. She acknowledged sending him the tracking details for thispackage but claimed those details were given to her over the telephone by a womanshe did not know and whose name she could not recall. She said this womantelephoned her and introduced herself as a broker or agent of Czech Trade, acompany that assists other Czech companies "to make business contacts". She saidthis woman asked her whether she exported to New Zealand and if so whether shewould be interested in exporting building products for houses. Mr Antolik's motherconfirmed her interest in this and gave the woman Vertex's post office box numberexpecting she would send brochures and samples of building materials to thataddress. She claimed that the only other time she spoke to this woman was when sherang back a few days later to give her the tracking details for the package which shepassed onto her son.[29] Mr Antolik's mother acknowledged that the sender's address on the packagewas her address although the unit number was missing. However, she said she doesnot know anyone with the same name as that shown on the package as the sender.Mr Antolik also confirmed that he does not know anyone by this name.[30] Mr Jones QC represented Mr Antolik at the trial as well as on this appeal. Inhis closing address to the jury, he submitted that the Crown case fell well short ofestablishing that Mr Antolik was knowingly involved in the importation of theMDMA. He described the Crown's investigations and evidence as inadequate andincomplete in many respects. He suggested that the Crown's explanation of thepurpose of the seals found hidden in the buffer machine made no sense becauseCustoms would not have allowed Mr Antolik to access his container before it wascleared. Mr Jones also reminded the jury that Mr Antolik's mother was notchallenged on her evidence about the threat made by Mr Spurny that she and her soncould find themselves in jail.Verdict[31] In unanimously finding Mr Antolik guilty, the jury must have been satisfiedthat the Crown's evidence was sufficient to prove the elements of the charge beyondreasonable doubt. The jury plainly rejected the evidence of Mr Antolik and hismother and must have been satisfied that the Crown had excluded the reasonablepossibility that someone else had planted the MDMA in the container withoutMr Antolik's knowledge in order to frame him.Application to adduce further evidence[32] Mr Antolik applies to adduce further evidence in support of his appeal, beingan affidavit from Vaclav Kratochvil, a private investigator in the Czech Republic.Mr Kratochvil was hired by R Ltd in May 2016, some three months after Mr Antolikwas convicted.Further evidence[33] Mr Kratochvil says in his affidavit that he was told by CS Cargo thatcontainer seals can be made to appear as though they have been locked when this isnot the case. He was told that this can easily be done by placing a piece of cardboardbetween the two main parts of the seal to prevent the seal from locking.Mr Kratochvil says that this was demonstrated to him. This technique enables acontainer that appears to be sealed to be opened. Mr Kratochvil says that if this wasdone to the container consigned to R Ltd, it would have been possible to manipulatethe seal and the cargo at any time after the container was loaded at Linea. He saysthat there are many petrol stations and parking places between Linea and theport terminal where this could have occurred without anyone noticing.Mr Kratochvil also states that security at the port terminal is "almost non-existent"and he was able to get in "without any problems". He says that the area is notsecured by a fence and there is no security service. Mr Kratochvil concludes that itis "very easy" to "manipulate cargo during its transport within the Czech Republic"and "there is no risk for anyone who chooses to do so".[34] Mr Kratochvil says that the shipping company, Maersk Line, confirmed thatthe seal on the container — ML CZ0118711 — is a legitimate Maersk seal but theseal number on the shipping documentation and on the seal found in the buffermachine — ML CZ01118711 — is not. His enquiries reveal that the seals are issuedby a dispatcher in a Maersk office to the contracted shipping company, in this caseCS Cargo. The seals are then given to the drivers who are responsible for lockingthem on the doors of the containers at the time of collection.[35] Mr Kratochvil says he managed to track down the driver who collected thisparticular container but the driver refused to comment. Mr Kratochvil says thedriver was employed as a contract driver by Maersk in the Zlin region in theCzech Republic which is where Linea is located. However, Mr Kratochvil says thedriver left his employment approximately two weeks after the container was shipped.[36] Mr Kratochvil also states that a man by the name of Matous Kozumplik wasa member of the board of TrustWorthy at the time Mr Antolik's mother had herdiscussion with Mr Spurny. Mr Kratochvil says he has ascertained that prior tojoining TrustWorthy, Matous Kozumplik worked in a senior position in twocompanies founded in Zlin by a group of local entrepreneurs. He claims that theseentrepreneurs are "controversial businessmen" who were investigated by the policeabout the sale of fake diamonds. Mr Kratochvil suggests that there could be aconnection between Matous Kozumplik and a person by the name ofPavel Kozumplik, who is the owner of a transport company where the Maersk driveris said to have worked at some unspecified time in the past. Mr Kratochvil says that"Kozumplik" is not a very common name in the Czech Republic. He says that"further enquiry" revealed that Matous Kozumplik from TrustWorthy and the driverknew each other. Mr Kratochvil says that members of Matous Kozumplik's family"are highly influential in the Zlin region due to their involvement in the regionalpolitics and their close ties to the police and customs authority of the region".Legal principles[37] The test to be applied in considering whether to admit new evidence was setout by the Privy Council in Lundy v R:7The Board considers that the proper basis on which admission of freshevidence should be decided is by the application of a sequential series oftests. If the evidence is not credible, it should not be admitted. If it iscredible, the question then arises whether it is fresh in the sense that it isevidence which could not have been obtained for the trial with reasonablediligence. If the evidence is both credible and fresh, it should generally beadmitted unless the court is satisfied at that stage that, if admitted, it wouldhave no effect on the safety of the conviction. If the evidence is credible butnot fresh, the court should assess its strength and its potential impact on thesafety of the conviction. If it considers that there is a risk of a miscarriage ofjustice if the evidence is excluded, it should be admitted, notwithstandingthat the evidence is not fresh.[38] Ultimately, the question is whether the new evidence that has been presentedmight reasonably have led to an acquittal.8Analysis[39] We do not consider that the further evidence should be admitted. For thereasons that follow, we have concluded that it is neither fresh nor cogent. In ourassessment the further evidence would have made no material difference and couldnot reasonably have led to an acquittal.[40] Mr Antolik was charged in September 2014. The trial did not commenceuntil February 2016. No explanation has been given as to why Mr Kratochvil wasnot engaged until May 2016 or why, with reasonable diligence, his evidence couldnot have been obtained before the trial. The evidence is not fresh.7 Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273 at [120].8 At [150].[41] The Crown did not contend at the trial that it would have been impossible forthe cartons containing the drugs to have been placed in the container at any stagebetween the time it left Linea's premises in July and the time it arrived inNew Zealand in September 2014. The Crown did not seek to prove when, how orwho actually did this and it was not required to do so. Rather, the Crown's case wasthat at some stage prior to the container being opened at the Auckland port, thecartons containing the MDMA were placed there and that Mr Antolik was knowinglyinvolved in this. Therefore, even accepting Mr Kratochvil's evidence that it ispossible to use cardboard to prevent a seal from locking, this could not materiallyassist Mr Antolik's case.[42] Similarly, the Crown did not suggest at the trial that even if Mr Spurny fromTrustWorthy had been so minded, it would have been impossible for him to havearranged for the drugs to be placed in the container at some stage prior to its arrivalin New Zealand. For that reason, the new evidence suggesting a possible connectionbetween Pavel Kozumplik, the owner of the company that employed the driver atsome earlier unspecified time, and Matous Kozumplik, a director of TrustWorthy atthe time the diamond complaint was made, is not only tenuous and speculative, it isof little assistance.[43] In any case, the new evidence cannot help Mr Antolik overcome the principaldifficulties he faces. It appears that Mr Antolik's mother was only one of many whocomplained about the quality of diamonds supplied by TrustWorthy. It seemsunlikely that she would be singled out for retaliation. Nevertheless, if Mr Spurnywas motivated to seek revenge against Mr Antolik's mother for pursuing hercomplaint, it might be expected that she would have been targeted rather than herson who was on the other side of the world.[44] If Mr Spurny had selected Mr Antolik as the appropriate target for revenge, itseems extraordinary that he would have chosen this elaborate method which was notonly difficult, expensive and risky, it had only a modest chance of succeeding. Hewould need to determine that R Ltd was in the business of importing fruit juice, findout who supplied the juice and who was involved in packing and transporting it. Hewould also need to ascertain when the particular container was due to be packed,collected and shipped. He would have to incur the significant cost of purchasing thedrugs, which was far more than was paid for the diamond.9 He would then need tofind a way of concealing the drugs inside the juice cartons either before or after theywere loaded into the container. He would also have had to arrange for someone toimpersonate a broker from Czech Trade and telephone Mr Antolik's mother to findout where to send the buffer machine with the seals hidden inside. Having gone tothese lengths, he would have to leave it to chance that New Zealand Customs wouldexamine the package containing the buffer machine at Auckland Airport, find theseals hidden inside and then make the connection to the container arriving by sea atthe port of Tauranga in sufficient time to find the well-hidden drugs. As was pointedout to the jury, there was no evidence that anyone tipped off Customs in relation toeither the buffer machine shipment or the container shipment.[45] Mr Kratochvil's evidence also cannot help overcome the implausibility ofMr Antolik's evidence of his reaction when he received the buffer machine and whathe did thereafter. It strains credibility that Mr Antolik could have thought that theseals had been placed in the buffer machine by accident during assembly in thefactory and that he threw them in the bin without giving it a further thought. Thejury was entitled to reject Mr Antolik's evidence and that of his mother as simply notcredible.[46] For these reasons, even if the new evidence had been available at the trial, weare satisfied that it would not have made any material difference and could notreasonably have led to an acquittal. The application to adduce the further evidencemust accordingly be declined.Ground 1 — unreasonable verdict?[47] We are satisfied that there was ample evidence from which a properlydirected jury could conclude that Mr Antolik was knowingly involved in theimportation of the drugs.9 Mr Antolik's mother said she paid the equivalent of approximately NZD10,000 for the diamond.[48] It is not disputed that Mr Antolik and his mother arranged for the container tobe shipped to New Zealand and his company was the consignee.[49] The jury would have been entitled to reject as wholly implausibleMr Antolik's mother's account of the two telephone calls she claimed to havereceived out of the blue from a woman she did not know, whose name she could notrecall, and who happened to be interested in exporting building materials from theCzech Republic for use in the construction of houses in New Zealand. The jurywould have been entitled to infer that Mr Antolik's mother sent the buffer machinecontaining the seals to her son addressed to the post office box he had recentlyopened, the details of which he had just provided to her. This would explain how sheobtained the track and trace details for the package and why she sent them to her son.This would also explain why Mr Antolik dismantled the buffer machine, extractedthe seals and placed them in a desk drawer in his office instead of immediatelycontacting his mother to ask why she had sent him these items rather than thebrochures and samples of building materials he claimed to have been expecting.[50] The potentially incriminating contents of the buffer machine could explainwhy minor discrepancies in the sender's particulars may have been deliberatelyrecorded on this package. The discrepancy between the seal number on the containerand the number shown on the shipping documents may also have been deliberate soas to match the number on one of the seals hidden inside the buffer machine.[51] Mr Antolik's actions on the day he was arrested, having been advised thatthere was a problem with the seal on the container, also support the conclusion thathe knowingly participated in the importation of the drugs. This ground of appealfails.Ground 2 — miscarriage of justice?Late disclosure and mistakes in the Crown evidence[52] Mr Jones submits that the Crown ought to have enquired whether the seal onthe container was real or fake. He claims that this was critical evidence because itwould have demonstrated when the drugs could have been put into the container,who locked it and when this occurred. We disagree.[53] The suggestion that the seal on the container may have been fake appears tohave been made by Mr Antolik for the first time during the course of his evidence atthe trial. The Crown had no reason to enquire into this possibility prior to thecommencement of the trial. To the extent that the authenticity of the seal might havebeen open to doubt, Mr Antolik was able to exploit this gap in the prosecutionevidence. We are unable to see how the Crown can be criticised for failing to makethese enquiries let alone how a miscarriage of justice could have resulted.[54] In any event, Mr Kratochvil's evidence is that the seal was an authenticMaersk seal. Further, he claims that by using a piece of cardboard an authentic sealcan easily be prevented from locking. Moreover, the Crown did not seek to provewhen the drugs were placed in the container or who placed them there. It followsthat it is immaterial whether the seal was real or fake and any enquiries the Crowncould have made about this would not have assisted Mr Antolik.[55] Mr Antolik next complains that the actual seal number on the container wasnot confirmed until part-way through the trial when photographs were produced. Upuntil then, the Crown was relying on notebook entries which accurately recorded theseal number. We are unable to see how the late provision of the photographicconfirmation of the accuracy of this evidence could have led to a miscarriage ofjustice.[56] Mr Antolik also complains that a Customs officer incorrectly noted thewebsite address for the "H" branded boxes in the container as ending in ".co.nz"whereas the photographs that were obtained during the trial showed that the websiteaddress ended in ".cz". This error was inconsequential. The jury was not left in anydoubt about the correct position and we are satisfied that the error did not prejudiceMr Antolik. If anything, it helped his case. Mr Jones placed heavy emphasis on theerrors and other alleged gaps in the prosecution evidence in support of hissubmission in his closing address to the jury that the prosecution was "superficial","inadequate and incomplete".[57] The next complaint arises out of the Crown's reliance on an instruction in aMainfreight "cartage advice" form which accompanied the container shipment. Thisdocument contained the following instruction in a section entitled "warehousingfacilities and loading/unloading constraints":PLEASE PHONE JAN BEFORE DELIVERY [Mr Antolik's cellphonenumber] AS HE NEEDS TO BE PRESENT AT UNPACK[58] Mr Antolik explained that he gave this instruction to Mainfreight at the timehe first engaged Store Rite's services in late 2013 but after the first two or threemonths he did not attend when containers were unpacked. Mr Jones says that theCrown abandoned reliance on this evidence as a result. We see nothing improper inthe Crown referring to this evidence. It is not unusual for some evidence to lose itspotency or to be discredited through cross-examination or by the introduction ofother evidence at trial. It seems that this is what occurred here because this part ofthe evidence assumed no importance by the end of the trial. It was not referred to byCrown counsel in his closing address nor was it referred to by the Judge in hissumming-up. In his closing Mr Jones highlighted the Crown's retreat from thisevidence as another illustration of the flaws in its case. We cannot see how amiscarriage of justice could have resulted from this.[59] Finally, Mr Antolik complains that a Customs officer initially gave incorrectevidence by producing photographs that did not relate to the subject container. Thiserror was acknowledged at the trial and corrected. Again, we see no risk of amiscarriage of justice resulting from this error.Reversal of the burden of proof[60] Mr Jones submits that the Crown has "sat on its hands" leaving the defencewith the burden of attempting to prove Mr Antolik's innocence. We do not acceptthis. Crown counsel repeatedly emphasised throughout the trial that the burdenremained at all times on the Crown to prove Mr Antolik's guilt to the requisitestandard and that he was entitled to the presumption of innocence. The Judge alsoemphasised these points in the standard and appropriate directions he gave in hisopening remarks and in his summing-up. The jury could not have been in any doubtthat the burden of proof rested with the Crown at all times and there was no onus onMr Antolik to prove his innocence.Conclusion[61] We conclude that both grounds of appeal must fail. The jury's verdict cannotbe said to be unreasonable and we are far from satisfied that there is any risk thatjustice has miscarried. There is no suggestion of any error in the Judge's directionsto the jury. That Mr Antolik was convicted following the jury's unanimous verdictsimply reflects that the Crown had a strong case and the jury was entitled toconclude that the defence theory was far-fetched.Result[62] The application to adduce further evidence is declined.[63] The appeal is dismissed.Solicitors:Barter & Co, Auckland for AppellantCrown Law Office, Wellington for Respondent