Papua New Guinea Law Reports - 1984
[1984] PNGLR 272
N486
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
PARAO TUNBORO
V
MOTOR VEHICLES INSURANCE (P.N.G.) TRUST
Waigani
McDermott J
24-25 September 1984
24 October 1984
EVIDENCE - Course of action - Reopening case - Fresh evidence - Discretion of court - Relevant considerations.
Held
An application by a plaintiff to reopen his case to admit “fresh evidence” is a matter for the court’s discretion as to which the following matters inter alia are relevant:
(1)      the effect of the fresh evidence on the state of the case when made;
John Peng v. The State [1982] P.N.G.L.R. 331 at 337; and Council of the City of Greater Wollongong v. Cowan (1955) 93 C.L.R. 435 at 444, applied.
(2)      that the fresh evidence would, if believed, probably affect the result;
(3)      that the fresh evidence could not with reasonable diligence have been adduced before;
(4)      that the fresh evidence is not merely confirmation of the plaintiff’s case;
(5)      that the fresh evidence was not omitted by inadvertence;
(6)      that the fresh evidence was not omitted by deliberate election; and
(7)      that it is in the interests of justice that the fresh evidence be admitted.
Barker v. Furlong [1891] 2 Ch. 172 at 184; Hughes v. Hill [1937] S.A.S.R. 285 at 287; and Betts v. Whittingslowe (No. 1) [1944] S.A.S.R. 163 at 165, considered and applied.
Discussion of principles relevant to calling “fresh evidence” and evidence in rebuttal.
Cases Cited
Baker v. Palm Bay Island Resort Pty Ltd (No. 1) [1970] Q.W.N. 25.
Barker v. Furlong [1891] 2 Ch. 172.
Betts v. Whittingslowe (No. 1) [1944] S.A.S.R. 163.
Council of the City of Greater Wollongong v. Cowan (1954) 93 C.L.R. 435.
Hughes v. Hill [1937] S.A.S.R. 285.
John Peng v. The State [1982] P.N.G.L.R. 331.
Margiotta v. Michielan and Michielan (1981) 26 S.A.S.R. 356.
Murray v. Figge (1974) 4 A.L.R. 612.
Shaw v. The Queen (1952) 85 C.L.R. 365.
Application to Reopen Case
In the course of the trial of an action for damages for personal injuries, the plaintiff sought at the close of the defendant’s case to reopen his case in order to take evidence of a possible witness.
Counsel
S. Titus, for the plaintiff/applicant.
G. J. Lay, for the defendant/respondent.
Cur. adv. vult.
24 October 1984
MCDERMOTT J: The trial of this action for damages for personal injuries commenced on 24 September 1984. In opening, counsel for the plaintiff indicated three witnesses would be called, the plaintiff (driver), a passenger and the plaintiff’s father to give evidence on another aspect. It was proposed to tender the medical report.
I subsequently heard evidence from the plaintiff both as to liability and damage, from the passenger in the rear of the vehicle, a young looking man who said in cross examination he was aged twelve years on the relevant date, 16 June 1980. He gave evidence relevant to liability. The plaintiff’s case continued as outlined and after rejection of the tender of a police accident report, the plaintiff’s case was closed.
I then heard evidence from the defendant and also from a front seat passenger in the vehicle driven by him. The court then adjourned. On resumption of the hearing next day, an application was made to adjourn for the purpose of reopening the plaintiff’s case in order to call Niues Wilnur, a front seat passenger in the plaintiff’s vehicle. There had been no prior mention of this possible witness. I was informed from the bar table that a statement had been taken from this man in March and it was only on 22 September, that counsel became aware that this man was in Kimbe and efforts to contact him over the previous five days were unsuccessful. It is clear to me counsel elected to proceed without this witness.
I sat as a tribunal of fact and law. At that stage, I had before me two conflicting and disparate accounts of a motor vehicle accident which happened more than four years previously. By the time this application was made, I was beginning to draw definite conclusions from the evidence.
The plaintiff, the driver of a Daihatsu two ton truck, picked up about eight passengers at the Rabarara club and travelled towards Bitavavar village. The defendant driver of a Toyota Hilux utility also carrying passengers was on the same road travelling in the opposite direction from Takabar to Tanaka. The vehicles collided or, as graphically displayed by the defendant, sideswiped each other in the early evening sometime between 7.00 p.m. and 9.00 p.m.
The plaintiff says the Hilux was speeding with lights on high beam and was being driven on the incorrect (plaintiff’s) side of the road. The defendant says the opposite. If there was a police investigation, the evidence is not forthcoming now, indeed, it was indicated that there was no independent assessment of the collision. A number of significant differences have emerged not the least of which comes from my observation and assessment of the witnesses. I was not impressed by the plaintiff. From what he says, there is no suggestion of him being affected by alcohol. Not so the observation of his youthful passenger who not only says that the plaintiff drank five to seven beers at the club, but also says the passengers in the vehicle prior to the collision were drunk. The plaintiff says he had two bottles of beer in the morning then went home and slept. He did not go into the club in the evening. He does admit the others had been drinking.
I am asked to believe that the accident happened on a corner so quickly that the plaintiff could not say when he first noticed the on-coming vehicle. Yet again, his youthful passenger noticed lights, but not the vehicle “far away”. “First time I saw the car, I didn’t think the accident would happen. I thought the driver was normal.” Now this witness said all these things in chief. He was the plaintiff’s brother and lived in his house.
The defendant and his front seat passenger are both drivers of ten years experience. They gave a clear account of the accident without any significant differences in their descriptions. They saw the truck approximately 100ms away travelling fast, on high beam and on their side of the road. In describing the course and speed of their own vehicles, I consider them to be more reliable than the plaintiff. There is no relationship between these witnesses, Robin Kabuli being a pastor who just happened to get a lift with the defendant. But what did emerge was a good reason why they were not speeding — the loaded Hilux had come up a rise before the corner. There was no attempt by them to evade any questions put on the issue of speed.
I have had the benefit of exhibit A, a set of very clear photographs of the scene taken recently and on which the plaintiff and defendant have plotted the position of the accident. Exhibit A 3 shows the two very different positions. According to the plaintiff, the defendant cut the corner. According to the defendant, the plaintiff failed to take the corner and the accident happened well after the plaintiff tried to negotiate the corner. If the plaintiff was travelling fast and unable to take the corner, this is exactly where one would expect him to be.
On exhibit A 8, the plaintiff plotted where he was and where he first saw the oncoming lights. This does not appear to be consistent with cutting the corner. I realise photographs can be deceptive and whilst the positions may not be accurate, I can gauge the courses taken. Although tendered on behalf of the plaintiff, they do not appear to be all that helpful to him.
Before discussing the law on re-opening a plaintiff’s case, I indicate that Mr Lay advised he would not be calling any further evidence for the defendant. I then adjourned to consider the substantive application.
As far as calling “fresh evidence” on appeal in a criminal case is concerned, the court in John Peng v. The State [1982] P.N.G.L.R. 331 at 337 said:
“If a party can show, that the evidence is ‘fresh’ in the accepted judicial interpretation; that it is relevant, credible, admissible according to the rules of evidence and by it a reasonable man would be given cause to doubt, then a proper case exists where the court can exercise its discretion to admit it.”
In the civil context is Council of the City of Greater Wollongong v. Cowan (1955) 93 C.L.R. 435, an appeal which involved an application for new trial based on “fresh evidence”, Dixon C.J., with the concurrence of the whole court said at 444:
“If cases are put aside where a trial has miscarried through misdirection, misreception of evidence, wrongful rejection of evidence or other error and if cases of surprise, malpractice or fraud are put on one side, it is essential to give effect to the rule that the verdict, regularly obtained, must not be disturbed without some insistent demand of justice. The discovery of fresh evidence in such circumstances could rarely, if ever, be a ground for a new trial unless certain well-known conditions are fulfilled. It must be reasonably clear that if the evidence had been available at the first trial and had been adduced, an opposite result would have been produced or, if it is not reasonably clear that it would have been produced, it must have been so highly likely as to make it unreasonable to suppose the contrary. Again, reasonable diligence must have been exercised to procure the evidence which the defeated party failed to adduce at the first trial.”
Both appeals were concerned with the calling of “fresh evidence” after judgment. There is no significant difference in the principles discussed therein. In the present case for all intents and purposes, the “fresh evidence” is to be called at the end of the defendant’s case.
An important consideration flowing from these authorities and applicable to this application is the effect of the fresh evidence on what is already before me. I consider that it would be wrong to disregard the state of the case in considering this application. Apart from that, the other factors mentioned have all been considered relevant to this question. Counsel submit the application is one for my discretion. I will review the general approach taken in the exercise of the court’s discretion in this area.
The learned authors of Cross on Evidence (2nd Aust. ed., 1980) ally the right to reopen with the right to call rebutting evidence at par. 10.64:
“It follows that the power to allow further evidence to be called by a party after he has closed his case is exercised very sparingly. We have seen that evidence in rebuttal of that which a witness for a defendant says in cross examination to credit is occasionally allowed as a matter of right, but, in most cases, the reception of evidence in rebuttal is a matter of discretion.”
In Phipson on Evidence (13th ed., 1982), at 824 it is stated:
“Evidence in reply ... must as a general rule, be strictly confined to rebutting the defendant’s case, and must not merely confirm that of the plaintiff.”
Instances of the exercise of the discretion in the plaintiff’s favour are cited as follows:
(1)      To answer a defendant’s evidence in support of an issue the proof of which lay upon him;
(2)      To answer a defence which became apparent during cross examination of his own witnesses;
(3)      When a plaintiff has been misled or taken by surprise;
(4)      For the judge’s own satisfaction; and
(5)      Where the interests of justice require it.
The use of my discretion in this case is incidental to judicial control of the cause, the ultimate object of which is to reach a decision according to the truth and justice of it. The discretion has to be exercised with care. Mr Lay provided many examples, as set out in an article entitled “A note as to the Rules relating to the Admission of further evidence” (1942) 15 A.L.J. 338 at 341:
“Accepted grounds to influence a favourable exercise are: where a party has been taken by surprise: Crewe v. Crewe (1800) (3 Hag. Ecc.123); Bigsby v. Dickinson ((1876) 4 Ch. D. 24) or has been misled: Barker v. Furlong ((1891) 2 Ch. 172); Rogers v. Manley (supra) or to give a true picture of a story only partly elicited in cross examination: R. v. O’Donoughue ((1917) V.L.R. 449); or to clear up an ambiguity in a witness’s evidence (M’Neilie v. H.M. Advocate (1929) S.C. (J.) 50). To cure a defect in proof due to inadvertence is probably a good ground: R. v. White (2 Cox C.C. 192); McNamara’s case ((1842) Ir. Cir. R. 525); Hargreaves v. Hilliam (58 J.P. 655); Duffin v. Markham (88 L.J.K.B. 581); R. v. Warren (14 Cr. App. Rep. 4); M’Neilie v. H.M. Advocate (supra); R. v. Gregoire ((1927) 47 Can. Crim. Cas. 288).”
And there are other examples as well; to allow admission of documents which came into a defendant’s possession and which were not in the plaintiff’s affidavit of documents: Baker v. Palm Island Resort Pty Ltd (No. 1) [1970] Q.W.N. 25; to allow evidence of a medical condition not clearly manifest at the time of trial, Margiotta v. Michielan and Michielan (1981) 26 S.A.S.R. 356; and the inadvertence of counsel: Murray v. Figge (1974) 4 A.L.R. 612.
It is to this last matter that I now turn my attention — the conduct of the case. In Barker v. Furlong [1891] 2 Ch. 172, Romer J. observed at 184:
“... it appeared to me that the plaintiff’s counsel had, in the exercise of his judgment, preferred to close his case without calling the defendant on the chance that the defendant would appear in the box to support his own case, when he could be cross examined without the risk attending the calling of him as one of the plaintiff’s witnesses; and it appears to me that in a case like this, in granting the plaintiff’s application after the defendant’s case had been argued and closed and a reply begun, I should be making a precedent which would, if established, lead to an improper amount of laxity in the conduct of a plaintiff’s case.”
In Hughes v. Hill [1937] S.A.S.R. 285, Cleland J. said at 287:
“... but here there was no element of surprise or inadvertence or ignorance of the existence of the evidence in question, but on the other hand the plaintiff’s counsel had deliberately, and with full knowledge elected not to tender the evidence as part of the plaintiff’s case ... I think, under these circumstances, justice requires that I should decide that the plaintiff is bound by the conduct adopted by her counsel. To decide otherwise would form an evil and dangerous precedent.”
And finally, the observation of Napier C.J. in Betts v. Whittingslowe (No. 1) 1944] S.A.S.R. 163 at 165:
“I should not have been prepared to reopen the trial merely for the purpose of allowing the plaintiff to fortify the evidence adduced in the first instance, by calling witnesses who might easily have been made available if due diligence had been shown.”
I consider each of these observations relevant to this application.
Mr Titus submits that I follow a different approach — that I look to see if the defendant will be unfairly prejudiced and cites by analogy Shaw v. The Queen (1952) 85 C.L.R. 365 at 384. That was a criminal case, but it is obvious that the proper exercise of my discretion involves wider considerations.
I have come to the conclusion that the application to reopen the plaintiff’s case to admit fresh evidence fails to meet the following tests:
(1)      that it would, if believed, probably affect the result;
(2)      that it could not with reasonable diligence have been adduced before;
(3)      that it is not merely confirmation of the plaintiff’s case;
(4)      that it was not omitted by inadvertence;
(5)      that it was not omitted by deliberate election;
(6)      that it is in the interests of justice to admit it.
To grant the application would be to chart a new course in litigation and I am not prepared to do that.
Application dismissed.
Lawyers for the plaintiff/applicant: Warner Shand Wilson & Associates.
Lawyers for the defendant/respondent: Young & Williams.