The phrase is easy to misread in both directions. A rehearing is not a retrial, and it is not a narrow review for legal error either.
The provision
(1) An appeal to the Supreme Court shall be by way of rehearing on the evidence given in the court the decision of which is appealed against, subject to the right of the Supreme Court —
(a) to allow fresh evidence to be adduced where it is satisfied that the justice of the case warrants it; and
(b) to draw inferences of fact.
(2) 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.
“On the evidence given”
The rehearing is on the evidence given in the court the decision of which is appealed against — the material assembled in the appeal book under Order 7 Divisions 11 to 16 of the Supreme Court Rules 2012.
Witnesses are not recalled. Evidence is not re-taken. What the transcript records a witness as having said is, on appeal, what the witness said — which is why Order 7 Rules 37 to 39 require the transcript to be corrected and, on disagreement, referred to the Registrar or primary Judge.
Additional evidence requires an application under Order 7 Division 20. See new evidence on appeal.
Paragraph (b)
The express right to draw inferences of fact means the Supreme Court is not confined to asking whether the primary Judge’s conclusion was open. Where the question is what conclusion follows from primary facts that are not in dispute, the Court forms its own view.
That matters most in cases decided on documents and affidavits, where the appellate court is in as good a position as the trial judge.
Where a finding turns on the credibility of witnesses seen and heard at trial, the Supreme Court has no equivalent advantage, and a finding of that kind is not lightly disturbed.
That is also why section 14(1)(c) requires leave to appeal on a question of fact: the Act treats factual challenge as exceptional. See appealing a question of fact.
All the powers of a National Court Judge
Section 6(2) gives the Supreme Court, for the purposes of hearing and determining an appeal, all the powers, authority and jurisdiction of a Judge exercising the jurisdiction of the National Court.
So the Court can make any order the primary Judge could have made. Read with section 16(c) — power to give such judgment as ought to have been given in the first instance — that allows the Court to decide the case outright rather than sending it back.
Where it thinks it necessary or expedient in the interests of justice, the Court may order the production of any document, exhibit or other thing; order any persons who would have been compellable witnesses at the trial to attend and be examined, whether or not called at the trial; receive the evidence of a competent but not compellable witness; order a reference for inquiry and report by a referee where a question involves prolonged examination of documents or accounts or a scientific or local investigation; exercise any other powers exercisable by the National Court on appeals; and issue any warrants necessary for enforcing its orders or sentences.
Section 8(2): 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).
The orders available
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.
Note the words shall inquire into the matter. They are the statutory expression of the rehearing: the Court engages with the substance, not merely with the reasoning. See orders on appeal.
What this means for grounds of appeal
Although the Court decides the matter again, the appeal is confined to the grounds pleaded. Rule 10 forbids a bare allegation that a judgment is against the evidence or the weight of the evidence or wrong in law, and requires particularity.
So a rehearing is not an invitation to re-argue the case at large. It is an opportunity to establish, on identified grounds, that the judgment should not stand — and then to ask the Court to make the order that should have been made. See drafting grounds of appeal.
Review is not a rehearing
Section 6 applies to an appeal. An application for review under section 155(2)(b) of the Constitution is a different jurisdiction, exercised on different principles and far more narrowly.
The Court on review does not decide the matter again. It asks whether the judicial act under review can stand — and Application by Herman Joseph Leahy [2006] PGSC 21; SC855 requires, for each argument advanced, that it was raised in the National Court.
So a litigant with a right of appeal has access to a rehearing; a litigant who has lost that right and must proceed by review does not. That is one reason the 40-day limit in section 17 matters so much. See appeal or review.
Sources
- Supreme Court Act (Chapter 37) — ss 6, 8, 14, 16
- Supreme Court Rules 2012 — O 7 rr 10, 37–39, 43, 52–59
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.