[1980-1994] Van LR 270
IN THE COURT OF APPEAL OF
THE REPUBLIC OF VANUATU
Appeal Case No. 5 of 1985
 
BETWEEN:
PETER STRUIK and GARY ELSASS
Appellants
AND:
PUBLIC PROSECUTOR
Respondent
Coram: Williams and Cazendres JJ
Counsel: Mr D Hudson for appellants
 
JUDGMENT
[EVIDENCE - PRACTICE AND PROCEDURE - application to adjourn; applications to admit fresh evidence]
This is the Appellants' application to adjourn the hearing of their appeal to allow time for the production of fresh evidence.
I do not want to dwell on the facts in too great detail otherwise I could appear to be overlapping the actual appeal.
The Appellants are pilots who were convicted for landing an aircraft in Vanuatu without the permission of the Minister for Civil Aviation, contrary to Regulation 23 (2) of the Civil Aviation (Regulations) Order 22/84.
The aircraft landed on 20th June 1985.
It is laid down by Ministerial Order that permission to land should be requested 72 hours before the proposed landing date.
It is not disputed that that requirement was not complied with. However, about 24 hours before take-off from Sydney there had been a telex and a phone call requesting such permission. It appears that in Vanuatu that is not necessarily sufficient time for the Minister to be contacted and make a decision. Of course, there are many factors to be considered in the granting of such permission. Particulars of cargo or crew or passengers may be required before such permission is given. That is pure conjecture on my part. The record gives no indication of such considerations.
By the time the plane took off from Sydney there had been no Ministerial permission granted, and the accused were fully aware of that. What they did contend however, was that following a phone call to Vanuatu Control Tower, the reply from Vanuatu Control was that Ministerial permission would probably be granted. The Appellants stated that as they flew towards Vanuatu the Control Tower intimated that permission to enter was a formality which probably would present no hurdle.
The evidence for the Prosecution is not quite the same. The Control Tower operators state that they did not say or imply that Ministerial permission was unlikely to be refused and that the accused may as well continue their approach.
This dispute in evidence may be of significance if the offence is not an absolute offence. I note that Mr Hudson's memorandum of appeal contains a ground to the effect that the accused did not intend to commit an offence.
He now states that there are copies of the Control Tower tapes which record the conversations between the plane and the tower. He says that those tapes could disclose the content of the statements made by the Control Tower personnel and could reveal whether or not the accused's version is correct and whether or not they were led to believe that Ministerial permission would be granted.
Why were the tapes not requested at the time of the trial? Mr Hudson says that the plane was grounded and the passengers detained pending completion of the trial which commenced on 24th June 1985. He says that he asked for the tapes and was told they were not available.
The record does not reveal that any application was made to the Court for the tapes, although the Appellants were anxious for a speedy trial to save expense, an Order from the Court may have resulted in their production and transcription without much delay.
Apart from the Tower tapes, the plane had its black box. The accused knew they had the black box. They could have taken a recording from its tapes and tendered it. I am not aware of the technicalities attendant upon such an operation but we hear frequently of references to black box recordings.
Notwithstanding the alleged importance of those tapes the accused have allowed them to be erased. Now, several months after the trial, they ask for an adjournment to consider the content of the tapes copied from the Tower tapes. The originals have also been destroyed.
Had they had the black box transcribed in Australia and found recorded conversations supporting their evidence they could have applied at this hearing to adduce them as fresh evidence and the request would have been granted. Of course, that would not have necessitated the adjournment which is now sought.
It is not known what is in the Tower tapes. Mr Hudson only surmises that they may be of value. He does not know if there is any fresh evidence to adduce but he hopes there will be and that it will favour them and not the Prosecution.
There are no precedents on this aspect in Vanuatu to which we have been referred. Appellants and Respondent have referred to English authorities based on recent statutes. However, one cannot say that there is no law in Vanuatu governing the admission of fresh evidence at an appeal. It is provided for in Section 210 of the Criminal Procedure Code. The English authorities quoted to us do not tell us how to approach this application.
It appears to us that when Section 210 states that the Court of Appeal may receive fresh evidence that is what it means. It does not say that an appeal should be adjourned when the Appellant says he hopes to find fresh evidence by examining tapes which could have been examined months ago.
Authority to receive fresh evidence at a hearing cannot, in our view be interpreted as meaning authority to adjourn to search for fresh evidence in an area which was known to the Appellants at the time of the hearing at first instance and who did not attempt to resort to it during that hearing.
In fact, Mr Hudson reveals that the Appellants destroyed or allowed to be destroyed a similar source of evidence which was under their own control, namely the black box. The plane was at hand during their trial which means that the black box was at hand. There was never an allusion to it although the defence knew of its existence, had it under their control and were refuting the accuracy of Control Tower messages which would have been recorded in their own black-box tapes. If we are to set down any governing principles then we would be inclined to say that an application to call fresh evidence should:
	(i) Indicate the source of the evidence.
	 
	(ii) The nature of the evidence to be adduced, (not merely a hope that some person known to have been at the scene may, if he were called, give evidence supporting the Applicants). If it was known by the Applicants during the trial that the proposed witness was at the scene, the application should be rejected on the basis that the Appellants had elected not to call him at the trial.
	 
	(iii) It must be fresh evidence. That is to say evidence of which the Appellants were not aware during their trial. If they knew a possible source of evidence during the trial but did not pursue it, we doubt if it could be reasonably defined as "fresh" evidence for the purposes of appeal especially if no effort had been made after the trial to ascertain the possible evidentiary value of it.
	 
	(iv) We do not say that adjournments should not be granted to pursue some source of evidence if the source has only just become known. Cases have to be dealt with on their merits and strictly rigid rules could defeat justice.
 
We bear in mind that if vital evidence unknown and not anticipated comes to light after conviction and subsequent dismissal of the appeal, there is an inherent power within Government to take legal opinion and to consider the evidence or appoint a body or direct the Court to review the case in the light of new evidence. Of course it would be presented and tested by cross examination and adjudication.
The application to adjourn is refused.
Dated this 3rd day of March 1986.
L. CAZENDRES
J. WILLIAMS
[Editorial Note: This decision is referred to in Dovan v Public Prosecutor; C.A. 1/88 and Public Prosecutor v Talemaibau; S/C (CR) 23/87]