Bokin v Dana [2005] PGSC 4; SC817 (7 December 2005)

SC817

PAPUA NEW GUINEA
[In the Supreme Court of Justice]

SCA 61 of 2001

JOHN BOKIN, PHILIP KUA, ANTON KUA, KIME HANBRUK, LEO ONGANE, PASTOR PIUS, PHILIP WENA, PETER GENDE, ANTON PARAN, PETRUS AWARD AND OTHER RESIDENTS OF TAMANDA VILLAGE, BULOLO, MOROBE PROVINCE
Appellants

AND

SERGEANT PAUL DANA
First Respondent

AND

JOHN WAKON, POLICE COMMISSIONER
Second Respondent

AND

INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Respondent

MT HAGEN: SEVUA, SAWONG & LAY, JJ.
2005: 30 June & 7 December

CIVIL LAW – Evidence - Fresh evidence.

APPEAL - Supreme Court Act s. 6 - Application to admit fresh evidence - Whether fresh and whether admissible - Whether would have influenced judgment below.

APPEAL - Supreme Court Act s. 8 – Evidence - Whether interests of justice require admission.

APPEAL - Taking over instructions from another lawyer - Duty to enquire after any relevant document.

Cases Cited.
John Peng v State [1982] PNGLR 331
Abiari v State [1990] PNGLR 250
Subramaniam v Public Prosecutor [1956] UKPC 21; [1956] 1 WLR 965
Paul Tohian & The State v Tau Liu, (1998), unreported, SC566

Facts

On an appeal from a decision of the National Court refusing an application for default judgement and granting a cross application to strike out the proceedings, the Appellants made an application to adduce fresh evidence in the appeal.

Held

The evidence sought to be adduced was not fresh, it was available with reasonable diligence before the hearing below. The appellants’ lawyers should have enquired with the former lawyers when they found the required evidence was not on file. The ‘fresh’ evidence was not admissible being hearsay, and if admitted would not have influenced the decision below. The evidence was not admissible pursuant to s. 6 or s. 8 Supreme Court Act.

Application refused.

Counsel
P.Dowa & P. Kak for the Appellants
K. Sino for the Respondents

7 December 2005

BY THE COURT: The appellants make application for leave to adduce fresh evidence on the appeal.

In the National Court, the appellants applied for default judgment against the respondents. The respondents cross applied for the proceedings to be dismissed for failing to comply with the requirements of s. 5 of the Claims by and Against the State Act. The appellants’ application failed, but the respondents’ application was successful and on 13 June 2001 the proceedings were struck out. The issue which was the essence of both decisions was that there was no evidence that the s. 5 notice had been personally served on an authorised officer in accordance with the requirements of that section.

The evidence now sought to be admitted is:

1. the affidavit of Maike Zimike sworn 16th November 2004 annexed to which are;
2. copy of a letter addressed to the Solicitor General dated 15th September 1997;

100. an inter office memorandum from Michaeline Anave of Warner Shand, Boroko office, to Paul Ousi of that firm’s Lae office, dated 30th September 1997 stamped "Received 6 Oct 1997";

4. an affidavit sworn by Paul Ousi on 11th July 2001in WS 640 of 1998 annexed to which is another photocopy of what appears to be the original or a duplicate of the original letter referred to at "(a)" above, which is endorsed in hand writing with the words:
   

"RECEIVED BY: KISOLEL KIAPIN

DEPARTMENT: ATT GENERAL

DATE : 25/9/97

TIME : 2:35 pm".

The applicant also relies on an affidavit of Peter Kak annexing an office copy of the letter referred to in "(d)" above.

Fresh evidence can be admitted under s. 6 of the Supreme Court Act if it is ‘fresh’ in the accepted judicial interpretation, and if it is relevant, credible, admissible according to the rules of evidence and by it a reasonable man would be given cause to doubt: John Peng v State [1982] PNGLR 331. Fresh evidence is evidence that has become available since the hearing or the trial, or has come to the knowledge of the party applying since the trial and which could not by reasonable means have come to his knowledge before that time. See: Abiari v. State [1990] PNGLR 250. Section 8 of the Supreme Court Act gives an independent discretion to the Court to admit evidence which is not fresh if it thinks necessary or expedient in the interests of justice to do so: Abiari v State (supra) per Kapi DCJ at 260 and Los J at 276.

Is the evidence, the subject of this application fresh? The affidavit of Paul Ousi was made after the ruling appealed from, but the annexures to it were made some years before hand. Those annexures were in the possession of the former lawyers for the appellants. In our view they were discoverable with reasonable diligence. A lawyer faced with an application to dismiss proceedings for failing to comply with s. 5 of the Claims by and Against the State Act should check that he has evidence to prove compliance with each element of the section. If he finds he has not, and the matter was previously conducted by another firm then he would make enquiries with that firm, before, not after, the hearing of the application. The appellants were aware of the existence of the letter referred to above as annexure "d". It was referred to and annexed to the affidavit of Maike Zimike sworn 21st May 2001 and filed in support of the Appellants application for default judgement. Evidence that the letter had been personally served on one of the authorised persons was an essential condition precedent to the cause of action for default judgement. When preparing that application was the occasion when reasonable diligence should have been exercised to obtain proof of personal service.

Are the documents admissible? For a document to be admissible as to the truth of the facts stated in that document the general rule is that the author of the document must give sworn evidence to that effect. There are a number of exceptions, such as business records produced in accordance with s61 of the Evidence Act. Where the author does not depose to the truth of the contents of the document the documents are only admissible as evidence of their existence, and not as to the truth of their contents.

In this case all that can be said is that Paul Ousi received a memorandum dated 30th September 1997 in which the author alleges she served "the Solicitor General’s office". There is nothing in the memorandum to confirm personal service on an authorised person. The memo also says "Attached please find receipted letter...". If this is intended to be a reference to annexure "(d") referred to above, which is not clear, the letter is not "receipted" in the ordinary sense that the recipient has acknowledged receipt by signing it. This is also contrary to the assertion made at paragraph 6 of the affidavit of Maike Zimike sworn 21 May 2001 that the notice letter was "counter signed by the Personal Secretary of the Solicitor General, Mrs. Kisolel Kiapin". The letter has been endorsed as noted above, but the endorsement is not signed. We do not know who endorsed the letter. It may have been the recipient, it may have been the deliverer, or it may have been a third person. The text of Mr. Ousi’s affidavit takes the matter no further. He was in Lae. He has a belief, based on the documents annexed to his affidavit, but he has no first hand knowledge of the fact to be proven, namely, was the letter served personally on an authorised person within the meaning of s. 5 of the Claims by and Against the State Act?

In our view, the new evidence does not support a finding that the notice letter was personally served. The memorandum from ...and the endorsement on annexure "d" are hearsay in so far as the truth of their contents is concerned. They cannot be received as evidence of the truth of the assertions made in them: Subramaniam v Public Prosecutor [1956] UKPC 21; [1956] 1 WLR 965, 970.

Would the evidence, if available at the hearing have influenced the judgment or have caused a reasonable man to doubt? Whilst it might have been the basis for granting an adjournment to allow the appellants to obtain sworn admissible evidence, it has of itself no weight against the defendants’ sworn evidence that s. 5 was not complied with. The critical evidence, the endorsement on annexure ‘d’ is not admissible because it is hearsay for the purpose of proving the fact of personal service.

A further difficulty with the evidence is that s. 5 of the Claims by and Against the State Act requires notice of intention to make a claim to be served within 6 months of the cause of action arising. The purported notice letter is dated 15th September 1997 and the Statement of Claim is endorsed with a claim arising on 23rd October 1996. So that the letter is dated substantially more than 6 months after the cause of action arose, according to the Statement of Claim. The Appellants say, and it is confirmed by the judgment below, that the appellants had applied orally to amend that date pleaded in the Statement of Claim to show the claim arose within 6 months of 15th September 1997. That application was refused by the National Court because it would have served no purpose when there was no evidence of personal service on an authorised officer of the notice letter. There is clearly no error in that ruling. Unless the appellants had established in the Court below that they had fulfilled the condition precedent to the issue of the writ - Paul Tohian & The State v Tau Liu; SC566. There was no point in considering any amendment to the proceedings, which were void from the beginning.

In the circumstances, we do not think that the interests of justice would be served by the admission of this further evidence because we do not consider that it is admissible as probative of the fact sought to be established, namely that the notice letter was personally served on a person authorised by s. 5. Nor do we consider that, if admitted, the evidence would raise a doubt as to the correctness of the decision from which the appeal arises.

The appellants’ interests would have been better served by obtaining sworn evidence from Michaeline Anave or one of the persons authorised to accept service on behalf of the State, to the effect that personal service had been affected.

Accordingly we consider that the application has no merit and is refused with costs.
We therefore make the following orders -

1. Application to adduce new evidence is refused;
2. The appellants shall pay the respondents costs of the application.
   

Lawyers for the Applicant : Dowa Lawyers
Lawyers for the Respondent : Kunai Lawyers