James Neap v The Independent State of Papua New Guinea

• Jurisdiction: Papua New Guinea
• Judge: Pratt J, McDermott J, Gajewicz J
• Judgment Date: 03 May 1982
• Court: Supreme Court
• Citation: (1982) SC228
• Year: 1982
• Judgement Number: SC228

Full Title: James Neap v The Independent State of Papua New Guinea

Supreme Court: Pratt J, McDermott J, Gajewicz J

Judgment Delivered: 3 May 1982

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 th 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 (1977) P.N.G.L.R. 386 at 3931 and Raphael Warakau v. The State Unreported Supreme Court Judgment SC184 dated 3rd November 19802. 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 (1954) 3 All E.R. 7453 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 (1910) A.C. 3734, 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...