“Having a second crack”: the perils of trying to repair gaps in evidence on appeal

The process of considering, preparing, and then leading evidence at trial can be stressful, time-consuming and costly exercise. Parties must balance things like the availability of documents and witnesses with personalities, and the rules of evidence with case strategies and commercial considerations.

If that the outcome is not what was desired, and it can be sheeted home to a factual gap in evidence, what can you do on appeal to close that loop?

The Court’s function on appeal

In Queensland, an appellant must show the Court of Appeal that the orders made in the Court below were the subject of a legal, factual or discretionary error. In coming to its decision, the Court of Appeal must conduct a real review of the evidence led in the Court below to determine whether it is satisfied there has been such an error. However, in considering whether there has been a factual error, the Court of Appeal is required to exercise restraint in interfering with findings of fact; in particular, where those findings were or may have been affected by the Court’s impression as to the credibility and/or reliability of witnesses.

Leading new evidence on appeal

Rule 766 of the Uniform Civil Procedure Rules 1999 (Qld) also limits the Court of Appeal’s ability to receive further evidence. A party is not, as a matter of course, permitted to lead further evidence on appeal except where they are able to show that there are “special grounds” for doing so. To show that there are “special grounds”, parties generally must demonstrate that the further evidence it proposes to lead:

• could not have been obtained with reasonable diligence for use at the trial / hearing;
• would probably have an important (though not necessarily decisive) influence on the result of the case; and
• is apparently credible (though not necessarily credible).

It is the first of these elements which can often provide a stumbling block. There are a variety of reasons as to why a party may choose not to lead evidence at trial including, for example, case strategy, cost or commerciality. In its interpretation of rule 766 of the Rules, the Court has made it clear that applying to lead further evidence on appeal is not a way in which to run a case with the benefit of hindsight – rather, the case must be put squarely at the trial of the matter.

By way of example, in Wang v Hur [2024] QCA 126, the matter at first instance concerned several Chinese witnesses who spoke only Mandarin, and many documents in Mandarin which were admitted into evidence with translations that had been agreed between the parties. The proposed translation had been provided to the plaintiff’s solicitors by the defendant’s solicitors; the plaintiff did not obtain any expert opinion on the translation but rather relied upon one of the plaintiff’s solicitor’s opinion as to the correctness of the translation. That solicitor spoke Mandarin fluently, and agreed that the translation was accurate.

After the plaintiff was unsuccessful at trial, she appealed seeking to lead further evidence as to the correct translation of certain documents and of the some of the oral evidence given at trial.

The Court declined leave to lead the further evidence for several reasons; importantly, the Court noted that it was clear that correct translation was an important aspect of the proceeding, and there was no cogent reason given as to why expert evidence on translation was not obtained, and relied upon, at trial. Of note was the fact that there was an extended period between the hearing of evidence and closing submissions, which provided ample opportunity to obtain and apply to lead further evidence during the course of the trial. The only explanation given by the plaintiff was that she changed solicitors who formed the view that led to obtaining an expert opinion.

In considering such matters, the Court observed that:

“…a finding of fact is not to be set aside because an appellate court thinks that the probabilities of the case are against – even strongly against – that finding of fact. The finding must stand unless it can be shown that the trial judge “has failed to use or has palpably misused [his or her] advantage” or has acted on evidence which was “inconsistent with facts incontrovertibly established by the evidence”, or which was “glaringly improbable”, or which was “contrary to compelling inferences.”

The Court also noted that interpretation and translation were carried out in the trial on an agreed basis. The plaintiff did not have to accept the defendant’s proposed translation, and it was open to her to advance her own translation of materials and evidence. Had she done so, and there was a dispute, the translators could have been called as witnesses and cross-examined on their translation, which would have provided the Court of Appeal with evidence to review in the course of determining the appeal. Given she chose not to do so, the Court held she was bound to the way in which she conducted the trial.

Reviewing a decision to accept a witness’s account

Where a finding at first instance is influenced by impressions gained from seeing and hearing the testimony given by various witnesses, a Court of Appeal is only justified in interfering with the Courts’ findings where those conclusions are:

• glaringly improbable or contrary to compelling inferences;
• inconsistent with facts that were incontrovertibly established by the evidence; or
• the subject of the trial judge failing to use, or misusing, their advantage in hearing the testimony first-hand.

In short, it is exceedingly difficult to overcome a trial judge’s findings as to whether testimony should be accepted or rejected on appeal.

By way of example, in Kavanagh v Londy [2024] QCA 140, the trial judge accepted a witness’ account only to the extent that it was supported by contemporaneous documents, noting that he was “prone to exaggeration and hyperbole” and had “lost objectivity”. On appeal, the appellant sought to focus on these statements asserting that no reasons were given as to why the trial judge came to that conclusion or why his evidence was rejected. The Court of Appeal conducted a careful review of the judgment, noting such statements were not to be viewed in isolation, and observed that:

• the witness had been steadfast and persistent in his account of events, despite it being inconsistent with contemporaneous documents and accounts of other witnesses;
• aspects of his evidence were illogical;
• it was clear that he had lost objectivity.

The Court of Appeal therefore noted that, given the Court from its reasons had clearly carefully considered the various aspects of his evidence, and had included its impressions in the reasons for judgment, it was not for the Court of Appeal to second guess those findings, and rejected the appeal.