Ben Kairu v The State (2005) SC782

• Jurisdiction: Papua New Guinea
• Date: 27 April 2005
• Citation: (2005) SC782
• Docket Number: SCRA 64 of 2002
• Court: Supreme Court
• Year: 2005

Full Title: SCRA 64 of 2002; Ben Kairu v The State (2005) SC782

Supreme Court: Jalina J, Kirriwom J, Kandakasi J

Judgment Delivered: 27 April 2005

1 APPEALS—Fresh evidence—Application to adduce—Relevant tests for fresh evidence—Evidence available at time of trial and could have been ascertained with the exercise of reasonable care—Purported fresh evidence expression of medical opinion upon earlier medical opinion—No explanation provided for failure—Purpose of alleged "fresh evidence" not part of issues before trial judge—Evidence not "fresh evidence" and not relevant on issues at the trial—Application dismissed.

2 Rawson Construction Ltd v Department of Works (2005) SC777, AGC (Pacific) Ltd v Sir Albert Kipalan (2000) N1944, Abiari v The State [1990] PNGLR 250, John Peng v The State [1982] PNGLR 331, James Pari v The State [1993] PNGLR 17, Koitaki Farms Ltd v Kemoko Kenge (2001) N2143 referred to

Facts

The Appellant applied for leave to adduce as "fresh evidence" medical opinions based on an earlier medical report by the doctor who conducted a post mortem on the deceased as to the cause of death of the deceased. The appellant came to the alleged "fresh evidence" during a conversation with another doctor well after his trial and conviction. The issue before the trial judge was identification and not necessarily the cause of death.

Held

1 The law in relation to applications for admission of fresh evidence are well settled. An applicant in an application to adduce "fresh evidence" must show that:

(a) The evidence in question was not available at the time of the trial and that it could not with the exercise of reasonable care and attention be ascertained, secured and adduced in evidence before the trial judge; and

(b) The justice of the case warrants an admission of the evidence in question.

James Pari v The State [1993] PNGLR 17 and Rawson Construction Ltd v Department of Works (2005) SC777 followed.

2 In this case, the applicant did not meet the required tests and the evidence sought to adduce are therefore not "fresh evidence" because:

(a) The evidence was available and or could have been ascertained, secured and adduced before the trial judge with the exercise of reasonable care and attention but the Appellants failed to do that;

(b) Given that the issue for trial was identification with no contest on the...