SC2848

PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

SCM NO. 34 OF 2025 (IECMS)

CHIEF INSPECTOR BERNARD NEPO as the Acting Commissioner for the Papa New Guinea Correctional Services
Appellant

v

DAVID SUAGU
First Respondent

and
INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Respondent

WAIGANI: HARTSHORN J, MURRAY J, ANDELMAN J
19 DECEMBER 2025
 
SUPREME COURT – practice and procedure - application to adduce fresh evidence

Cases cited

Abiari v. The State [1990] PNGLR 250 
Dr. Poka & Ors v State [2023] SC2372
James Pari v. The State [1993] PNGLR 173
John Peng v. The State [1982] PGSC 15; [1982] PNGLR 331
Paldir Community Services Development Ltd v Petkol Trading Ltd [2023] SC2425 
Rawson Construction Ltd v Department of Works [2005] PGSC 39; SC777 
William Chilen v The State (2011) SC1099 

Counsel
     
Mr P. Pato, for the appellant
Mr F. Lunge, for the first respondent
Mr L. Kolo, for the second respondent

1.	BY THE COURT: The appellant seeks leave for fresh evidence to be admitted on appeal pursuant to s 6(1)(a) of the Supreme Court Act Chapter No 37.
2.	The appeal is against the decision in OS (JR) No 40 of 2025: David Suagu V Chief Inspector Bernard Nepo as the Acting Commissioner for the Papa New Guinea Correctional Services & Independent State of Papua New Guinea delivered on 28 June 2025 (the National Court decision).
3.	The decision concerned Mr Suagu’s termination of employment. One of the issues raised by Mr Suagu before the trial judge was whether Mr Nepo had the authority to make the decision to terminate his employment on 10 March 2025. 
4.	The trial judge found that Mr Nepo did not have the power to make the decision to terminate Mr Suagu’s employment as he was not holding the position of the acting Commissioner of the Papua New Guinea Correctional Services pursuant to a lawfully executed document. 
5.	Mr Nepo has appealed against the National Court decision and seeks to rely on an affidavit of Bernard Nepo sworn on 21 October 2025 and filed on 22 October 2025 (Mr Nepo’s affidavit) which sets out:
a.	 a letter from the Public Service Commission dated 25 November 2024 recommending an extension of his appointment as Acting Commissioner;
b.	three National Gazettes extending his period of appointment as Acting Commissioner from 5 January 2025 to 4 October 2025; and
c.	A letter from the Portfolio Minister dated 30 September 2025 requesting an extension of his appointment as Acting Commissioner.
6.	The second respondent supports the appellant’s application. The first respondent opposes the application.
7.	The appellant and the first respondent submitted that Mr Nepo’s affidavit is fresh evidence and justice of the case warrants its admission because:
a.	 He did not have the National Gazette confirming his appointment prior to or at the trial;
b.	The evidence is relevant to the issue of whether or not he had power to make the decision to terminate Mr Suagu’s employment; 
c.	The evidence is credible as it was produced by a state agency; and
d.	The court would have come up to a different decision if the evidence was available before the court below.
8.	The second respondent submitted that Mr Nepo’s affidavit is not fresh evidence and justice of the case warrants that it not be admitted because:
a.	Mr Nepo failed to adduce any evidence that he made attempts to secure the National Gazette prior to the trial and that if he had, he would have secured a copy of the National Gazette;
b.	The evidence is not necessarily relevant as the National Gazette is retrospective as to the relevant period of time;
c.	The evidence is not credible as its not produced by the persons who created the document; 
d.	The court decided the case on other issues as well as the issue of authority of Mr Nepo; and
e.	The admission of the evidence would be prejudicial to Mr Suagu as he can not test the evidence.

Consideration

9.	The Supreme Court has flexibility to receive fresh evidence where the justice of the case warrants it as set out in s 6(1)(a) of the Supreme Court Act Chapter 37.
10.	Fresh evidence is relevant and material evidence that has come to light since the trial or evidence which could not, by reasonable means have come to the applicant’s knowledge earlier. Rawson Construction Ltd v Department of Works [2005] PGSC 39; SC777 Sawong, Kirriwom & Kandakasi JJ; William Chilen v The State (2011) SC1099 Injia CJ, Hartshorn J & Sawong J; John Peng v. The State [1982] PGSC 15; [1982] PNGLR 331 Kidu CJ, Pratt & McDermott JJ; Abiari v. The State [1990] PNGLR 250 Kapi DCJ, Amet J and Los J , James Pari v. The State [1993] PNGLR 173 Kapi DCJ, Ellis & Brown JJ; Dr. Poka & Ors v State [2023] SC2372 Collier, Miviri & Tusais JJ.
11.	In Peng v The State, the court referred to Johnson v. Johnson [1900] P. 19; 69 L.J.P. 13 that identified one of the issues to be, whether the person seeking to adduce fresh evidence ‘could not reasonably be expected to have produced [it] in the circumstances of the case’.
12.	In Paldir Community Services Development Ltd v Petkol Trading Ltd [2023] SC2425, Hartshorn J, Bona J & Liosi J identified in [4], that there were four main prerequisites for admitting fresh evidence, these being whether:
a.	 the evidence was not available at trial; 
b.	 the evidence is relevant to the issues; 
c.	the evidence is credible; and 
d.	the court would have come up with a different decision if this evidence was available at the court below.
13.	We consider that for the evidence to be admitted, the appellant must establish that:
a.	 the evidence sought to be adduced came to light only after the trial;
b.	could not have been with reasonable means obtained at the time of trial; and
c.	 it is in the interests of justice to admit the evidence.
14.	As to whether it is in the interests of justice to admit the evidence, it is the prerequisites set out in paragraph 12 (b) to (d) that are required to be considered.
15.	Turning to the first point in paragraph 13, there is no doubt that Mr Nepo did not have the National Gazettes before or during the hearing of the trial. We accept that Mr Nepo did not have any power to require the appointing authority, the National Executive Council to produce the National Gazette. Mr Nepo’s counsel conceded that Mr Nepo in fact did not know whether he was appointed in the role as Acting Commissioner at the time he determined to terminate the employment of Mr Suagu. He had no knowledge of the existence of the evidence he now seeks to be adduced before the Supreme Court. He submitted that at the relevant time he was performing in the role of acting Commissioner, and there was no suggestion that he was not the acting Commissioner and he made assumptions about his power and authority.
16.	Mr Nepo submitted that he came into possession of the National Gazettes following the filing of the Notice of Appeal in the Supreme Court.
17.	We accept the appellant’s evidence that the evidence to be adduced only came to light after the trial.
18.	Turning to the issue of whether Mr Nepo could have with reasonable means, obtained the evidence at the time of trial.  The onus is on him to satisfy the court that he could not have with reasonable means obtained the evidence at the time of trial 
19.	The National Gazette No G361 for the period 5 January 2025 to 4 April 2025 was printed on 9 April 2025. 
20.	Mr Nepo adduced no evidence as to what, if any steps he took prior to the trial to get hold of the National Gazette. 
21.	There is no evidence before the court that Mr Nepo employed reasonable diligence to secure the National Gazette prior to or during the hearing, which occurred nearly three months following the date on the National Gazette.
22.	There is no evidence that he made any attempts or inquiries to secure evidence of his ongoing appointment at the time of the trial. We are not satisfied that the evidence was not available at the trial.
23.	For the evidence to be led as ‘fresh evidence’, Mr Nepo was required to establish that the evidence could not have been obtained with reasonable means at the time of trial. He failed to do that. Therefore there is no utility to consider whether it is in the interests of justice in this case to admit the evidence.

Orders
24.	We make the following orders:
a.	The application filed on 23 October 2025 to rely on fresh evidence pursuant to s6(1)(a) of the Supreme Court Act Chapter 37 is dismissed.
b.	The appellant to pay the first respondent’s costs of the application as agreed or assessed. 

________________________________________________________________
Parker Legal: Lawyers for the Appellant
Ninerah Lawyers: Lawyers for the First Respondent
Jema Lawyers: Lawyers for the Second Respondent