Unreported Supreme Court Decisions
SC228
PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]
S.C.A. NO. 19 OF 1981
BETWEEN: JAMES NEAP
APPELLANT
AND: THE INDEPENDENT STATE OF PAPUA NEW GUINEA
RESPONDENT
Waigani
Pratt McDermott Gajewicz JJ
30 April 1982
3 May 1982
FRESH EVIDENCE ON APPEALS - principles re-iterated with special reference to circumstances and conditions of the country - evidence available at time of trial - failure in preparation and conduct of trial - fresh evidence refused.
Authorities
The Government of Papua New Guinea and Davis v. Barker (1977) P.N.G.L.R. 386
Raphael Warakau v. The State Unreported Supreme Court Judgment SC184 dated 3rd November 1980
Ladd v. Marshall (1954) 3 All E.R. 745
Brown v. Dean (1910) A.C. 373
Orr v. Holmes (1948) 76 C.L.R. 632
RULING ON APPLICATION TO RECEIVE FRESH EVIDENCE
PRATT J:  The Court has been asked to rule on the admissibility of fresh evidence on the hearing of this appeal. To assist the Court in coming to a decision it has been necessary for us to be apprised of the nature of the evidence sought to be tendered. The proposed evidence falls into two major areas. The first is evidence which will prima facie establish that the defendant’s driver, one Constable Maila, was affected by alcohol at the time of the accident and that he was subsequently convicted on his own plea of driving under the influence at the time. During the taking of the plea Constable Maila made a number of important admissions. The second is evidence from a police officer, Sub-Inspector Henry Kabug, who was on the scene very shortly after the accident occurred, that he observe certain debris on the plaintiff’s side of the road. This is completely contrary to the evidence of the defence.
Counsel for the appellant advises us that the state of sobriety of the defendant’s agents and the possibility that the defendant’s main witness might have been convicted for driving under the influence, was not suspected until counsel for the plaintiff called for the full police report at the conclusion of the examination of the “first” witness for the defence. I have placed the word first in inverted comas because it is essential to appreciate that the main defence witness, Constable Maila, had been called some months before and had given evidence on commission at Kundiawa before a different trial judge. This apparently arose because although the matter had been specially fixed for hearing the plaintiff was not able to proceed. Constable Maila had been transferred to Rabaul and returned to Kundiawa for the hearing. The sequence of events underlies the difficulties which parties face in mounting civil matters for trial at circuit towns and the Court is certainly not unmindful of such problems together with the pressure which these problems bring to bear on the mind of counsel when endeavouring to determine what is the best course to follow.
Prior to calling for the police report, counsel for the plaintiff had elicited from the first defence witness called at Mt. Hagen, the fact that Constable Maila had been charged with driving under the influence, but nothing further lay within that witness’s knowledge. It is perhaps not without significance that the plaintiff’s statement of claim alleged that the defendant’s driver was “driving whilst under the influence of alcohol”. What this information was based upon, whether it was a shrewd guess or otherwise, I do not know. This claim in the plaintiff’s statement was denied by the defence.
The principles of common law governing the reception of fresh evidence on appeal have been well covered in two more recent Supreme Court cases: The Government of Papua New Guinea and Davis v. Barker[clxx]1 and Raphael Warakau v. The State[clxxi]2. The former case also succinctly sets out the law at p.396 on the meaning of “appeal by way of rehearing”, (now s.6 of the Revised Supreme Court Act). Fundamentally, the approach to the problem of fresh evidence is set down by Lord Justice Denning in the case of Ladd v. Marshall[clxxii]3 referred to by His Honour the Deputy Chief Justice Mr Justice Prentice (as he then was) in Barker’s case. I quote from p.748 of the report of Lord Denning:
“In order to justify the reception of fresh evidence or a new trial, three conditions must be fulfilled: first, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial: second, the evidence must be such that, if given, it would probably have an important influence on the result of the case, although it need not be decisive: third, the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, although it need not be incontrovertable.”
(Although no corrigenda exists and the above statement has been quoted on a number of occasions since 1954, I think the words “or a new trial” should read “for a new trial”.) This statement is simply an amplification of principle set forth by the House of Lords at p.375 of Brown v. Dean[clxxiii]4, where Lord Loreburn agrees that if there is “nothing in the nature of surprise, fraud or conspiracy” and nothing “to show that the information alleged could not with reasonable diligence have been obtained at the first trial”, then such fresh evidence will not be admitted. It is clear from the judgment in Ladd v. Marshall (supra (3)) that all the criteria must be met and not one or two only. The reason underlying the principle is simply that encouragement must not be given to the proliferation of litigation - the old doctrine “it concerns the State that law suits should not be protracted”. During his judgment in Barker (supra (1)), Mr Justice Prentice stated that the principle he was enunciating was “not inconsistent with a constitutional law and is neither inapplicable nor inappropriate to the circumstances of Papua New Guinea at the present time”. The same was found to be true by the Supreme Court in Warakau’s case (supra (2)) - refer p.5. Undoubtedly the Court had in mind, inter alia, the provisions of s.158(2) of the Constitution which states:
“In interpreting the law the courts shall give paramount consideration to the dispensation of justice.”
Such “dispensation” of course must contemplate the whole system, its past and its future and justice for all and not merely for one. Clearly also, it is justice towards both parties to a dispute who proceed on the basis of the established law and not judicial vagaries. It might well be said with some considerable force that this section merely states what has been an ideal of the common law judges for many years.
Learned counsel for the appellant has drawn our attention to special problems which arise in Papua New Guinea where civil cases are dealt with on circuit and where even before trial certain administrative problems can make the task of a legal adviser most difficult. As I have said, we appreciate these problems only too well but they cannot be used as a reason for lowering professional standards of competence and application. Nor can I conceive, would the courts ever countenance lower standards to the extent that they were thereby accepted as something peculiar or appropriate to the circumstances of Papua New Guinea. In the present case it is clear to my mind that the second and third grounds of Lord Denning’s test would be met, but I am totally unconvinced that the first requirement is fulfilled. No interrogatories were administered by the plaintiff to the defendant, though the plaintiff did reply to the defendant’s interrogatories. No discovery was instituted. No subpoena on police records was served. No adjournment was asked for during the trial when it is said that first knowledge of the charge against Constable Maila came to light. All the information which is now being sought to be adduced as fresh evidence was in existence and there for the asking before the time of taking of evidence on commission and the trial. In all the circumstances, any compliance by this Court with the appellant’s request might well be construed as an invitation to the profession generally to slacken their efforts to mount a properly prepared case at the original hearing. I would not wish to encourage such a view because it was thought that a losing party could rely on obtaining a rehearing from the Supreme Court. Even worse, it could well encourage an unscrupulous practitioner to deliberately refrain from producing certain evidence until after the trial was completed and his opponent’s case fully explored. I am not suggesting any such motive exists in the present matter but I am conscious of the fact that were we to comply with the request, it may encourage the emergence of persons far less honourable than present counsel.
In all the circumstances I refuse leave to admit the fresh evidence on the hearing of this appeal.
MCDERMOTT J:  This appeal arises out of a verdict by the trial judge in favour of the defendant. It was a motor vehicle accident claim following a collision between the plaintiff/appellant’s vehicle and one owned by the defendant and driven by its servant. The appeal is against findings of fact and on grounds of law.
The course of the trial was unusual. It was set down for hearing, so the appellant’s counsel says, at a special civil sittings. The plaintiff was not ready to proceed. As the main defence witness had been brought to Kundiawa and the trial was set down for Mt. Hagen, it was decided to take his evidence on commission there before a judge who subsequently was not the trial judge. The plaintiff, unlike the defendant, was represented by different counsel at the commission and at the trial. The appeal book indicates the following dates. The accident was on the 8th April 1978, the writ issued on the 4th March 1980, the statement of claim the 25th June 1980, defence 2nd July 1980, evidence on commission 25th September 1980 and trial on 16th June 1981.
I make the following observations from the appeal book. Paragraph 6(d) of the particulars of negligence alleges the defendant’s driver was driving whilst under the influence of alcohol. This was denied and a counter allegation of so driving by the plaintiff alleged. No questions relating to this were put to the defendant’s driver. This is significant. The plaintiff did not interrogate. Whilst this is not an absolute pre-requisite, prudence should have dictated this action. It is apparent from the pleadings and patently clear after the evidence on commission that both of the parties blamed the other for the collision. At this stage the plaintiff’s case was not strong. It required all the assistance that enquiries could reveal. Exhibit “D” (Accident Report) was tendered in cross-examination through Constable Pius Kapase, the first defence witness at the trial. This report, previously unseen by the plaintiff’s solicitor or counsel, revealed that the defendant’s driver may have been drunk and was to be so charged. It states the station breach report number as 1009 of 1978 and 92 of 1978. At a later stage of the case the defence, through three witnesses, said the plaintiff was drunk at the time of the collision and the cause of it. His case was in difficulty. This new information of the report and surrounding oral evidence then came to light.
The main defence witness was not recalled and no such application made. No adjournment was sought to investigate the new information. The gist of the plaintiff’s attack on the report, or so it appears to me, is to establish that the accident report was one of recent fabrication. The trial proceeded to its conclusion. Application in this appeal is now made to adduce new evidence.
In argument the appellant said that it was sought to introduce evidence arising out of the discovery, subsequent to the trial, that the police witness Gordon Maila had been prosecuted and convicted on his own plea of driving under the influence at the time. A further result of the discovery of the prosecution is that another police witness, Henry Kabug, claims to have arrived at the scene of the accident shortly after and claims to be able to say where the police vehicle was located and be able to assess the condition of Mr Maila. Counsel for the appellant, in outlining the evidence, which is to be tendered in affidavit form, indicated that it would have had a profound effect on the outcome of the trial. During argument it appeared to me that counsel for the appellant is seeking to redress by way of appeal the short-comings in evidence or the mistake in tactics in the presentation of the case before the trial judge. Is this Court in a position then to give this remedy by allowing the admission of new evidence with the inevitable result that there will have to be a new trial?
The principles relating to the reception of fresh evidence are well established and wholly applicable to this country: see The Government of Papua New Guinea and Davis v. Barker (supra The relevant cases have been cited by counsel in support of (1)). the application. As the then Mr Justice Dixon said in Orr v. Holmes [clxxiv]5:
“If a trial has been regularly conducted and the party against whom the verdict has passed cannot complain that evidence has been wrongly received or rejected or that there has been a misdirection or that he has not been fully heard or has been taken by surprise or that the result is not warranted by the evidence, the successful party is not to be deprived of the verdict he has obtained except to fulfil an imperative demand of justice. The discovery of fresh evidence makes no such demand upon justice unless it is almost certain that, if the evidence had been available and had been adduced, an opposite result would have been reached and unless no reasonable diligence upon the part of the defeated party would have enabled him to procure the evidence.”
The later view of the then Lord Justice Denning in Ladd v. Marshall (supra (3)) and approved in this Court is similar.
The only issue I see is whether the plaintiff’s legal advisers have been reasonably diligent. I have already made observations of the presentation of the plaintiff’s case before the trial judge. It is now urged here that in the special circumstances of this country there was reasonable diligence in the circumstances. I cannot accept this submission.
1.       Whilst I accept that the plaintiff’s counsel may not have been aware that a comprehensive accident report could have been in existence and known to the defendant whilst at the same time the plaintiff received only a bare bones report, this as far as I know is a regular police practice though in this country the bones are barer than elsewhere. However the fact is that the full report was tendered in the defence case. I cannot envisage a situation whereby a surprised plaintiff would not have been given an opportunity for further investigation, particularly in view of the standing of his case at that time and in the circumstances of this country. Needless to say, the document could have been discovered and if its contents were not then revealed a subpoena duces tecum could have been issued for the trial.
2.       No action was taken at the trial to investigate the possibility, when revealed, that the defendant’s driver may have been drunk.
3.       It is apparent that after the trial the evidence sought to be adduced now was found with reasonable diligence. I consider a three month wait to get information from the Mt. Hagen Court House reasonable in this country. It is obvious that an adjournment could have produced some, if not all, of the evidence. No adjournment was sought.
4.       No attempt was made to rely upon the plaintiff’s allegation that the defendant’s driver was drunk. I am not prepared to accept this particular of negligence as a general catch-all provision which is often conveniently used for the purpose of pleading. This is a very specific allegation which was not raised at the trial for whatever reason.
5.       The facts in the cited cases are not greatly different from those before this Court - in some their significance of greater import than in others.
I can see no reason that because of alleged special circumstances in this country, the application of the well-established principle should in any way be differently applied in this case. With respect to counsel’s submission that he seeks to introduce evidence arising out of discovery subsequent to the trial, I see it as evidence discovered during the course of the trial but not then availed of by further investigation. This failure must be laid at the plaintiff’s door.
GAJEWICZ J:  I agree with my learned brother judges that application should be refused and I do not wish to add anything to what they have said.
Solicitor for the Appellant: A. Amet, Public Solicitor
Counsel: P. O’Brien
Solicitor for the Respondent: B. Emos, State Solicitor
Counsel: A. Mullumby

[clxx](1977) P.N.G.L.R. 386 at 393
[clxxi]Unreported Supreme Court Judgment SC184 dated 3rd November 1980
[clxxii](1954) 3 All E.R. 745
[clxxiii](1910) A.C. 373
[clxxiv](1948) 76 C.L.R. 632 at 640