James Neap v The Independent State of Papua New Guinea

• Jurisdiction: Papua New Guinea
• Court: Supreme Court
• Citation: (1982) SC228
• Date: 03 May 1982
• Year: 1982

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

1 Criminal law—evidence—fresh evidence on appeal—principles reiterated 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

2 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.

The Government of Papua New Guinea and Davis v Barker [1977] PNGLR 386, Raphael Warakau v The State (1980) SC184, Ladd v Marshall [1954] 3 All ER 745, Brown v Dean [1910] AC 373 and Orr v Holmes (1948) 76 CLR 632 referred to

Ruling on application to receive fresh evidence.

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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...