An appeal is a review of what the magistrate decided on the evidence the magistrate had. A party who left evidence out below, or found it afterwards, faces a rule against bringing it in, and a narrow exception.
The rule
Evidence other than the evidence and proceedings before the Court by which the conviction, order or adjudication was made shall not be received on the hearing of an appeal, except by consent of the parties or by order of the National Court.
Any fresh evidence introduced by a party shall be by leave of Court only and by affidavit evidence only. Cross-examination on the affidavit shall not be allowed except with leave of the Court.
Rule 5(5)(j) lists “the filing of fresh affidavit evidence, if any, by leave of the Court” among the matters dealt with at the directions hearing, so the application should be made then, not at the hearing of the appeal.
What the record is
On an appeal from an order of the Court, it shall be deemed (a) where the statement of defence was taken down in writing, that no other defence and points were relied on at the hearing; and (b) where the evidence was taken down and signed and the exhibits marked, that no evidence other than that so taken down was given and no exhibits other than those marked were put in evidence.
This is the civil counterpart of section 229. The written record forwarded by the Clerk under section 224 is conclusive of what happened. An appellant who says “I told the magistrate about the receipt but he did not write it down” is met by section 145(4): if it is not in the record, it was not given. The lesson for the hearing below is to make sure every point and every document is recorded and marked.
When the National Court will receive fresh evidence
The Act gives the National Court a discretion and no criteria. The Court applies the ordinary principles for fresh evidence on appeal: that the evidence could not with reasonable diligence have been obtained for the hearing below, that it would probably have an important influence on the result, and that it is apparently credible. Evidence that was available and simply not called will rarely be admitted, because the appellant had the chance and the respondent is entitled to finality. Evidence that goes to a procedural irregularity, such as an affidavit that the appellant was never served, is different: it goes to whether there was a hearing at all, and is routinely received, as in Philipae v Igaso (2011) N4366.
| Likely to be received | Unlikely to be received |
|---|---|
| Affidavit that the appellant was not served, or was ill on the hearing day | A witness the appellant chose not to call |
| Evidence that came into existence after the hearing and changes the picture | A document the appellant had but forgot to bring |
| Evidence bearing on the magistrate’s jurisdiction, such as the defendant’s true residence | Evidence merely contradicting a witness who was cross-examined below |
| Evidence both parties consent to | Evidence going only to the weight of the case below |
The alternative: remittal
Where the real complaint is that the evidence was never properly heard, because the hearing was ex parte, or was cut short, or a witness was wrongly excluded, the National Court’s usual response is not to hear the evidence itself but to remit the case for hearing or further hearing before the District Court, where the evidence can be tested in the ordinary way. The appellant then calls the new evidence at the rehearing. See the National Court’s powers.
If you were absent below
A party against whom an order was made in his absence has a better route than an appeal with fresh evidence: an application to the District Court under section 25, supported by an affidavit of the defence on the merits, which if successful leads to a rehearing at which all the evidence is heard. See setting aside an ex parte order.
The magistrate’s report is not fresh evidence
Where no reasons were given at the time, section 225 requires the magistrate to forward a written report of reasons. The report explains the decision; it cannot add facts that are not in the depositions, and the National Court will not treat it as evidence of what was said in court beyond the record. Order 18 rule 6(5)(c) requires it to be included in the appeal book.
Committal appeals
On the rare occasions when a committal reaches the National Court by appeal rather than review, the same rule applies: the question is whether the magistrate’s opinion on the evidence served under section 94 was one properly open, and new material goes to the trial judge, not to the appeal. See challenging a committal.
The District Courts Act is not on PacLII; it is available on vLex.
Before relying on anything here, read the current text of the District Courts Act (Chapter 40) and check for later amendments. The Act is not on PacLII; the figures and time limits quoted in this series come from the consolidation to No 8 of 2000, and the District Courts (Amendment) Act 2009 changes some of them once it is brought into operation. 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.