Introducing Fresh Evidence in the Court of Appeal of NSW
Friday 11 September 2015 @ 11.16 a.m. | Legal Research
The Court of Criminal Appeal deals with errors of law as opposed to matters of fact. This means that the introduction of ‘fresh evidence’ is rare and will only be admitted by under certain circumstances.
Background to Fresh Evidence
Usually the evidence is required to be ‘necessary or expedient in the interests of justice’. The Victorian case of Clark v Stingel [2007] VSCA 292 (11 December 2007) clarified this principle and set out three circumstances where fresh evidence could be admitted:
- By the exercise the exercise of reasonable diligence such evidence could not have been discovered in time to be used in the original trial;
- It is reasonably clear that if the evidence has been available at the trial, and has been adduced, an opposite result would have been produced; and
- The evidence proposed to be adduced is reasonably credible.
Current Case Dealing with Fresh Evidence
This week (10 September 2015) in the New South Wales Court of Appeal, fresh evidence was admitted by the Defence Attorney without objection in the case of Joseph Brian Lowery v Insurance Australia Limited. The new evidence elucidated on matters outlined in the particulars and the defence argued that it ‘raised suspicion’ regarding fraudulent activity on the part of the appellant. The court criticised the defence on the basis that the new evidence did not credibly raise suspicion on behalf of the appellant and that its admission had unnecessarily extended the court process.
Admission of Fresh Evidence
This current case shows that evidence relating to trivial matters, or matters which do not serve to impact the outcome of the case, should not be introduced in the New South Wales Court of Appeal as fresh evidence. This goes against the principle of case management and the role of the court, which is to deal with matters of law and not fact.
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Sources:
Clark v Stingel [2007] VSCA 292 (11 December 2007)
