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Fresh Evidence Appeal

It is rare for the Court of Criminal Appeal to admit fresh evidence in an appeal. However, it does have the flexibility to do so to prevent a miscarriage of justice. This power is conferred under Section 5F.4 of the Criminal Appeal Act 1912 (NSW). Fresh evidence is likely to be used in appeals against conviction and appeals against the severity of a sentence imposed. These are known as fresh evidence appeals.

What is Fresh Evidence?

The court will generally ask if the additional evidence is “fresh”. That is, evidence that the applicant was unaware of and couldn’t have gathered without reasonable effort and attention. Fresh evidence is not the same as new evidence which is evidence that was available prior to the original hearing but was not used in the hearing.

The Court of Criminal Appeal will not accept fresh evidence unless it affects the outcome of the case. An example is Bajouri v R [2016] where the victim was shown in Facebook images undertaking activities such as jet skiing 10 months after the alleged assault took place and 18 months before he gave his victim impact statement. Those images could not be considered fresh evidence because they did not raise questions about the contents of the victim impact statement.

Evidence of Facts After Sentencing

Facts that arise after sentencing cannot be considered by the Court of Criminal Appeal. For example, a convicted offender assisting authorities or the alleged victim after sentencing will not be considered. It is not considered an error that the sentencing judge didn’t take into account because it has arisen after the fact and could not have impacted the outcome at the time of sentencing.

Evidence Of Factual Circumstances That Existed At Sentencing

The Court of Criminal Appeal has discretion in relation to accepting evidence of circumstances that were known at sentencing but that were deemed insignificant. When deciding to allow additional evidence the court must exercise caution.

If the evidence was not produced to the legal representatives because the defendant didn’t understand the significance of the evidence, because the legal representation was incompetent or because it wasn’t believed that the evidence would affect the initial outcome, the court may allow the evidence to be adduced in the appeal.

Additional evidence was allowed in Cornwell v R. Before sentencing, Cromwell did not present the evidence of his Huntington’s disease. He didn’t want to be tested for the disease as he had seen the effect the disease had on his family members. Post-sentencing he underwent testing and confirmation that he was suffering the effects of Huntington’s disease was allowed because it would have made a custodial sentence more difficult for him.

If you require legal advice in relation to fresh evidence appeals or any other legal matter please contact Armstrong Legal or phone us on 1300 038 223.

Trudie Cameron

This article was written by Trudie Cameron

Trudie Cameron is the Practice Director of Criminal Law and is responsible for supervising and managing the New South Wales Criminal Law team in addition to her own caseload. She practices in both NSW and the ACT. Trudie is an accredited specialist in criminal law, practising exclusively in criminal and traffic law. Trudie defends clients charged with both state and...

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