Be careful – the perils of trying to repair gaps in evidence on appeal

Connecting the dots — the process of analysing, preparing, and then leading evidence at trial can be stressful, time-consuming, and costly. 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 the trial outcome is not what was desired, one explanation may be that there was a factual gap in the evidence.

What can you do on appeal to close that loop?

Two recent decisions (i.e. Wang v Hur [2024] QCA 126 and Kavanagh v Londy [2024] QCA 140) illustrate the resounding challenge a legal team faces when seeking to change or supplement the evidence led in support of a case, or repair the Court’s impression of a witness, on appeal.

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 must 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 can show that there are “special grounds” for doing so. 

To show that there are “special grounds”, parties generally must demonstrate three things.  This is the further evidence it proposes to lead:

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

The first of these elements can often provide a stumbling block.  There are various reasons 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 to run a case with the benefit of hindsight – rather, the case must be put squarely at the trial of the matter.

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 opinions 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 certain oral evidence given at trial.

The Court did not grant leave to lead the further evidence for two main reasons:   

One, 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.  On this point, the Court noted 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.”

Two, the 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

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

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:

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

As an 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 carefully reviewed the judgment, noting that such statements were not to be viewed in isolation.

The Court of Appeal observed that while aspects of this particular witness’s evidence were illogical, he had been steadfast and persistent in his account of events despite it being inconsistent with contemporaneous documents and accounts of other witnesses.

The Court of Appeal, therefore, concluded:

1. the decision handed down by the Court demonstrated that the Judge had clearly carefully considered the various aspects of his evidence and had included its impressions in the reasons for judgment. 
2. it was not for the Court of Appeal to second guess those findings, and the appeal was rejected.

Key takeaways

There are three key takeaways here. 

1. Get it right at trial: parties get one opportunity to lead evidence in support of their case. It can become easy to be persuaded that it’s too difficult to obtain certain evidence, or that it would not be commercial to obtain a statement from a particular person. Ensure that, in making such decisions, you consider what impact that may have on your case, including the flow-on effect on other witnesses.
2. Consider the case as a whole, not each witness in isolation: as the Kavanagh example shows, a Court may simply reject a witness's account on the basis that they are not credible. Consider whether multiple witnesses may support a case theory. 
3. Seek out good legal advice: when the decision to go to trial is made, consider how a case might be perceived on appeal if you are unsuccessful. In Wang, the importance of correct translation may not have been given sufficient weight by the plaintiff’s solicitors at trial, which influenced the way in which the case was put. Had contrary translation evidence been led, that point on appeal may have been preserved without the need to rely on the Court of Appeal agreeing to hear further evidence.

If you have a commercial dispute, get in touch with one of our experienced litigation and dispute resolution lawyers at Winterkorn Legal Group. You can contact us by phone on 1300 660 884.