Ordering a new trial undoes the entire hearing below. The Court has three less drastic options, and an appellant should be ready to explain why none of them is adequate.
Section 16(e)
On the hearing of an appeal, the Supreme Court shall inquire into the matter and may — (a) adjourn the hearing from time to time; (b) affirm, reverse or modify the judgment; (c) give such judgment as ought to have been given in the first instance; (d) remit the case in whole or in part for further hearing; or (e) order a new trial.
Modify — the judgment stands, adjusted. Reverse and substitute — the Court decides the case itself. Remit in part — one issue goes back. Remit in whole — the matter is reheard on the existing footing. New trial — everything starts again.
Section 6(2) is what makes the second option so often available: for the purposes of hearing and determining an appeal, the Supreme Court has all the powers, authority and jurisdiction of a Judge exercising the jurisdiction of the National Court.
Where a new trial is the right order
A denial of natural justice. A party not heard, or heard on a case they were not told they had to meet. The constitutional right is in section 59 of the Constitution — the minimum requirement being to act fairly and, in principle, to be seen to act fairly.
Evidence wrongly admitted or excluded, where the error goes to the whole case rather than one issue.
Findings affected throughout by a misdirection, so that nothing in the judgment can safely be preserved.
Apparent bias, or a Judge who should not have sat. Section 2 of the Act: a Judge shall not sit as a member of the Supreme Court if he has previously adjudicated on the merits of the case, and the same principle applies below.
Where the error affects only one issue, the Court will remit that issue under section 16(d) rather than order everything to be done again.
Where the primary facts are not in dispute and only the conclusion is wrong, the Court will decide the case itself. Section 6(1)(b) gives it the express right to draw inferences of fact.
Where the complaint is that a finding was against the weight of the evidence, that is a question of fact requiring leave under section 14(1)(c) — and even if made out, it usually leads to substitution rather than a retrial.
Section 16(d) or (e)?
| Remitter — s 16(d) | New trial — s 16(e) | |
|---|---|---|
| Scope | In whole or in part | The whole hearing again |
| Existing findings | Preserved except as remitted | Set aside |
| Evidence | Usually the existing evidence, with more | Taken again |
| Typical use | Damages reassessed; one issue determined | Trial miscarried; findings unsafe throughout |
| Cost | Contained | Substantial |
Order 7 Rule 9(d) requires the notice of appeal to state what judgment the appellant seeks in lieu of that appealed from. An appellant who asks only for a new trial, where a partial remitter would meet the case, is asking for more than the error warrants — and may get nothing.
Plead in the alternative: judgment for the appellant, alternatively remitter on an identified issue, alternatively a new trial.
Retrials after a successful appeal
In a criminal appeal, quashing a conviction does not automatically produce an acquittal. The Court may order a retrial, and Order 11 Rule 8 allows the court or a Judge, in pending proceedings, to make such orders as are considered necessary for the custody or release on bail or otherwise of a person in custody, the custody, preservation and production of exhibits or other property, the suspension or payment of any fine, and the suspension or variation of any order relating to restitution of property.
Section 8(2) also protects an appellant: the Supreme Court shall not increase a sentence in a criminal proceeding by reason of, or in consideration of, any evidence given under Subsection (1).
See criminal appeals and the proviso.
Ask for the terms as well as the order
Before whom. Whether the retrial is before a different Judge. Where the ground of appeal was apparent bias or a denial of natural justice, that should be spelled out rather than assumed.
On what. Whether the whole proceeding is retried or only identified issues — section 16(d) allows a remitter in whole or in part, and the two powers are often used together.
On what evidence. Whether the existing evidence stands as evidence at the retrial, or whether it is taken again.
Costs. The costs of the first trial, of the appeal, and of the retrial are three separate questions. Order 12 Rule 6 allows the Court, on an appeal, to make an order as to the costs of a proceeding before any other court.
What a new trial means
A new trial means the case is heard again from the beginning, with the delay, cost and evidentiary difficulty that follows — witnesses whose memories have faded, documents that are harder to find, and the costs of two trials and an appeal.
Before asking for one, ask whether the client can fund it, whether the evidence will still be available, and whether the outcome is likely to be different. Where it is not, the honest advice may be that the appeal is not worth bringing.
Sources
- Supreme Court Act (Chapter 37) — ss 2, 6, 8, 14, 16
- Supreme Court Rules 2012 — O 7 r 9; O 11 r 8
- Constitution of the Independent State of Papua New Guinea — s 59
Before relying on anything here, read the current text of the Supreme Court Rules 2012 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.