Orai-Raru v Stansfield [1963] PGSC 20; [1963] PNGLR 34 (8 August 1961)

Papua New Guinea Law Reports - 1963

[1963] PNGLR 34 - Orai-Raru v William Stansfield

[1963] PNGLR 34

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

ORAI-RARU

COMPLAINANT

AND

WILLIAM STANSFIELD

RESPONDENT

Port Moresby

Mann CJ

8 August 1961

On appeal to the Supreme Court.

ASSAULT - Appeal by complainant on dismissal of complaint before Magistrate - Effect of admission of evidence relevant to motive of defendant but claimed to be prejudicial to complainant - Social practice of native witnesses to recapitulate events before trial - Assessment of weight to be given such “rehearsed” evidence - Fresh evidence not previously discovered despite exercise of due diligence - Propriety of Supreme Court exercising on appeal both the power to admit fresh evidence and the power to arrive at its own conclusions - Sections 67F and 67G of Small Debts Ordinance 1912-1961.

A complaint of assault by the Respondent on the Appellant was dismissed by the Stipendiary Magistrate. At the hearing evidence was admitted as to the Appellant’s erratic driving of a motor vehicle immediately before the alleged assault took place. On appeal it was submitted that this evidence was inadmissable and influenced the Magistrate adversely to the Appellant and that not sufficient weight was accorded the evidence of the Appellant’s witnesses because the Magistrate believed their evidence was rehearsed. In addition a new trial was sought on the ground that fresh evidence had become available since the hearing.

Held:

N1>(1)      The evidence of erratic driving although wrongly admitted at the instance of the Respondent was not prejudicial to the Appellant the objection to its admissibility was taken too late.

N1>(2)      Unless dishonesty of purpose is shown the fact that native witnesses have dicussed amongst themselves, in accordance with native social practice, evidence to be given does not of itself necessarily detract from the weight of such evidence.

N1>(3)      The fact that under Sections 67F and 67G of the Small Debts Ordinance 1912-1961 power is given to the Supreme Court on appeal to admit fresh evidence and arrive at its own conclusion in the matter in question, does not imply that it is appropriate in all cases for Court to exercise those powers.

N1>(4)      The Appellant was entitled to a retrial of the matter on the ground that fresh evidence, which was not discovered before the trial despite the exercise of due diligence, was available.

Counsel:

R. S. O’Regan, for the Appellant.

Stan Cory, for the Respondent.

MANN CJ delivered the following judgment:

This was an appeal from a decision of the Court of Petty Sessions sitting at Port Moresby. The learned Magistrate dismissed the complaint after hearing evidence on both sides and coming to the conclusion on the balance of probabilities that the Defendant had not assaulted the Complainant, as alleged.

The first ground of appeal is that evidence was wrongly admitted. The evidence in question was to the effect that shortly prior to the alleged assault the Complainant had been driving a motor truck along the roadway in such a manner that he was holding up traffic over a considerable distance and obstructing the Defendant and at least one other driver.

Evidence to this effect was given in the first instance by the Defendant himself, and no objection was taken until the witness Barber was called. Much of the cross-examination of the Complainant was directed to the Complainant’s bad driving. The objection now raised is that evidence of this kind is not relevant and was likely to have influenced the learned Magistrate’s mind against the Complainant and to the prejudice of the Complainant’s case. I agree with the contentions of the Appellant to this extent, that in my view the evidence was not relevant as part of the Defendant’s case, for the issue between the parties was raised by the Defendant’s direct transverse of the Complainant’s allegation of assault; there was no issue raised involving any avoidance of the Complainant’s allegations. It is common ground that the Defendant was in the immediate presence of the Complainant at the time in question and had an opportunity to assault him. It would be, in my view, part of the res gestae to show how the parties reached that spot and to describe their position in relation to the vehicles, and so on. It would only be relevant to show that the Complainant had been driving badly if the Defendant raised a defence which involved justifying the assault by showing provocation, the need for self-defence, or the like. On the only issue that was raised in this case, the only effect that this evidence could have would be, in my opinion, to show that the Defendant had a motive for assaulting the Complainant and rendering the fact of the assault much more probable. It might well have been part of the Complainant’s case. It is clear from the evidence that the Defendant responded to the stimulus occasioned by the Complainant’s driving at least to the extent of stopping his car, stopping the Complainant and speaking angrily to him. The Defendant admits that he was angry, and the whole evidence strongly supports this.

I think therefore that far from influencing the mind of the learned Magistrate against the Complainant, this evidence, even though wrongly admitted in one sense at the instance of the Defendant, is clearly incapable of supporting any finding or inference against the Complainant, and indeed if it were thought to carry weight, would go strongly against the Defendant’s case. It is clear that the defence was conducted substantially upon the footing that the Complainant’s conduct was open to criticism on this score, but this, to my mind, shows a complete misconception of the issue raised by the defence. The objection was taken much too late, and I think that in any case it could not have had any effect harmful to the Complainant. I think therefore that the first ground of appeal must fail.

The second ground of appeal was that the decision was against the evidence and the weight of evidence. Dealing with this aspect of the matter, it was submitted that the learned Magistrate in his reasons for decision shows that he did not attach sufficient weight to the evidence given for the Complainant and that his expressed ground for this shows that he was in error. I think that it would have been wrong to reject the evidence of the Complainant and his witnesses merely because it appeared that they had rehearsed their evidence between the 12th March and the 11th May. Mere rehearsal of evidence for legitimate reasons and in the absence of any reason for suspecting fraud is not a criticism going to the weight of the evidence. Familiar examples of rehearsal of evidence for legitimate reasons and especially for the sake of ensuring greater accuracy are to be found in the case of Police witnesses, and indeed in the daily practice of holding conferences in order to clarify the minds of the witnesses and avoid confusion and errors. Account must also be taken of the social practices of native people who, possessing no means of making a permanent record of events, have almost universally adopted the practice of repeating their stories over and over again until the essentials are firmly impressed in the minds of everybody. This, of course, leads to one of the greatest practical difficulties in assessing the evidence of native witnesses, and indeed deciding whether a witness was even present at the time and place to which he refers. But the point is that unless there is reason for supposing that practices such as this have been resorted to in the case in question for dishonest reasons, there is no justification for saying that the evidence of a native witness carries no weight because he has discussed his story with others. It is a very real difficulty which is encountered in nearly every case to determine in these circumstances the weight to be given to the evidence of each individual witness. I do not want to be taken as saying that a story told by two people necessarily carries any more weight than the same story told by one. This is a problem which cannot be readily resolved by applying any formula.

I am not at all sure that the learned Magistrate did reject from his mind the evidence of the Complainant’s witnesses simply because it appeared to him to have been rehearsed. Other reasons are given including, again a constant difficulty, the problem of the estimation of distances by native witnesses, and again the difficulty of saying how much a native, with his attention directed towards some distant event, could see and remember of the occurrence. These are all very real difficulties, and I think that I should take it that the learned Magistrate has addressed his mind to them because they are difficulties which he should bear in mind, and not simply as a ready-made reason for rejecting the evidence.

I think that I should read the reasons for decision as indicating that after taking all these matters into account and giving them proper attention, the learned Magistrate came to the conclusion, as he states in the last sentence, that on the balance of probabilities he should believe the Defendant. It must be borne in mind that the reasons stated were apparently given after the decision and that at the time of the hearing the learned Magistrate, having heard two European witnesses, including one independent witness, came to the conclusion that it was unnecessary to hear any more evidence on the part of the Defendant, and having intimated that, stopped the trial. The third witness for the Defendant, who was therefore not called, would be, on one view of what happened, the most important witness of all, but since he was to be called by the Defendant and was in Court ready to be called, no inference could be drawn which would be of any assistance to the Complainant. I think that the learned Magistrate, having heard the first two of the Defendant’s witnesses cross-examined without their evidence being apparently shaken, came to the conclusion that on a direct conflict of fact he should decide for the Defendant. As the matter then stood, I cannot see any reason for disagreeing with that view.

The third ground of appeal relates to fresh evidence which has become available since the original hearing. I am asked to give the Complainant the opportunity of calling Mr. Sandbach, a material witness whose evidence if believed, would establish that soon after the incident in dispute, the Defendant admitted that he had assaulted the Complainant and threatened to do so again.

It is true enough that one of the prime objectives of Court proceedings is to give finality to a situation involving a dispute of fact, and except in unusual circumstances a determination on a direct issue of fact, after hearing evidence on both sides, is final. In the present case, however, there is one direct issue, in relation to which neither party can be mistaken. Somebody is lying. It is not really a case where the facts are in dispute; the true facts are equally known to both parties, and if the Court’s decision is obtained by the fraud of one party, the decision may be set aside when the fraud is discovered.

In relation to the evidence now available, there is also one question raised. It is common ground that this evidence was not in fact known to the Complainant or his Practitioner at the time of the original hearing. It is common ground that this evidence is now available. In these simple circumstances the question resolves itself to one of where the responsibility lies. If this evidence could and should have been discovered by the exercise of due diligence on the part of the Practitioner, the Complainant’s remedy, assuming that his case is just, is against his Practitioner, and not against the Defendant. If, on the other hand, the evidence was such that it was not discovered in spite of the exercise of due diligence, or was such that it was not likely to be discovered by the exercise of due diligence by the Practitioner, the Complainant is entitled, on discovering that the evidence is in fact available, to have a new trial.

Evidence of this character, in the circumstances of this case, might well prove to be decisive.

Was the Practitioner’s failure to become aware of this evidence due to lack of proper diligence, and if he were lacking in this respect, would due diligence have enabled him to discover it? It is clear that the Complainant himself knew nothing of the incident in question, and was in no position to acquire the information.

It is unfortunate that Mr. Sandbach only made one unsuccessful attempt to bring this point to the notice of the Practitioner, who appeared to him not to have heard what was said. The Practitioner knew that Mr. Sandbach had been at the scene of the alleged assault shortly after it had allegedly occurred, and that therefore he was a material witness, if needed, to give evidence that the Complainant was in fact at that time suffering from what appeared to be a recently inflicted injury. Mr. Sandbach was not called for this purpose as a witness, and this particular question is not involved in the Appeal. The precise point is whether it should have occurred in these circumstances to the Practitioner to ask Mr. Sandbach whether he had subsequently had any conversations with the Defendant on the subject. Looking at the matter after the event, one can well see that such an inquiry would have been wise, but I am unable to take the view that the Practitioner was deficient in diligence in not making such an inquiry. Such an admission might have been made by the Defendant to any number of people, including any of his friends or acquaintances, and it would not normally occur to a person to ask whether an admission had been made unless some circumstance existed to make it appear likely that relevant conversations had taken place. I think therefore that no blame can be attached in the present case because the inquiry was not made. Mr. Sandbach himself was under no obligation to pursue the matter any further. It is unfortunate that nothing further was said, but in the circumstances I think that the particular evidence was such as not to suggest itself to either the Complainant or his Practitioner, and that therefore the Complainant is entitled to have the matter reopened.

I have been invited in the exercise of the powers conferred by the Small Debts (Papua) Ordinance 1912-1961 to dispose of this question of fact myself upon the hearing of this Appeal. Undoubtedly under Section 67f of the Ordinance as amended this Court has an implied power to admit fresh evidence, and under Section 67g has power to arrive at its own conclusion in the matter and make such order as it thinks fit upon the merits of the case.

The fact that these powers exist does not establish that it is proper for them always to be used in any particular case. It would I think be wrong for me to hear evidence now from Mr. Sandbach and then decide what weight should be given to this evidence as compared with evidence given orally before the learned Magistrate on a previous occasion. If Mr. Sandbach should prove to be an impressive witness whose evidence should be taken as carrying substantial weight, it would be quite impossible for me to decide whether it should carry more or less weight than evidence which the learned Magistrate heard and was prepared to accept on the balance of probabilities, having heard that evidence but not the evidence of Mr. Sandbach. In a case like this the whole of the evidence must be heard again by the one tribunal.

The Defendant is accused of making a cowardly and unjustifiable attack upon the Complainant in a situation in which he could be confident, particularly in view of his previous association with the man, that the Complainant would not attempt to hit him back nor defend himself. The allegation is one which in the interests of justice must be very closely and carefully investigated on both sides, so that the Court’s decision can be given with as much confidence as is possible in circumstances of this kind.

It has been put to me that the learned Magistrate’s mind might be thought to be influenced by the previous hearing and that the matter should either be re-heard in the Supreme Court or be sent back for hearing before another Magistrate. The present Ordinance does not appear to me to contemplate that re-hearing should be had in the Supreme Court and without determining that such a course would not be open to the parties in an appropriate case, I do not think that such a course is necessary. I accede to the view that the case should be re-heard before another Magistrate only to this extent, that having regard to the issues and the course which the dispute has taken up to the present time, it might better appear at the conclusion of the re-hearing that justice has been done if the Magistrate who re-hears the case approaches it with an entirely fresh mind; therefore I think that it is desirable that the case should be re-heard by another Magistrate and that the entire case should be re-heard before him.

I have endeavoured to refrain from saying anything which might be interpreted as an indication that I have taken any view as to the facts of this case. I have at the present time no impression whether the allegations of the Complainant are true or false and I do not want anything which I have said to be taken as affording the slightest indication of what view the Magistrate should reach upon the re-hearing of this case.

ORDER

Decision and Order appealed from quashed and set aside.

Order that the case be remitted to the Court of Petty Sessions at Port Moresby for re-hearing, and direct that it be re-heard before another Magistrate.

Costs of original hearing and taxed costs of this Appeal to abide the event upon the re-hearing.

C.J.

10 a.m. 4.8.1961

Solicitor for the Appellant: W. A. Lalor, Public Solicitor.

Solicitor for the Respondent: Stan Cory.