When seeking to appeal a client’s conviction on the basis of fresh evidence, it is important to consider whether the evidence is fresh or merely new as a higher bar applies to the admission of the latter.
The source of the Court of Appeal’s power to grant a new trial on the ground of fresh evidence is its power to set aside a conviction when a miscarriage of justice has occurred.1 That power is conferred on the Court by s276(1)(c) of the Criminal Procedure Act 2009 (Vic) (the Act).2 Section 276(1)(c) requires a “substantial miscarriage of justice”, however, the discussion of the relevant principles in the authorities below refers to a miscarriage of justice. This is because these cases were decided before the introduction of the requirement of a substantial miscarriage of justice by the Act in Victoria.3
Case law principles
The High Court has repeatedly emphasised the distinction between the production of fresh and new evidence on appeal. In Ratten v The Queen (Ratten)4 the High Court defined fresh evidence as evidence which is discovered after the verdict that could not have been reasonably available at trial, and new evidence as evidence which was available to the accused or which the accused could reasonably have been expected to produce at the trial. The High Court identified two different instances in which a miscarriage of justice may have occurred and explained the consequences, in those instances, of evidence being characterised as either fresh or new.
The first instance is where on the evidence before the Court, whether fresh or new, the appellant is shown to be innocent, or the Court concludes that it has a reasonable doubt as to the appellant’s guilt.5 In that instance, the verdict of guilty must be quashed and the appellant discharged.6 There will be no retrial.7 Where the Court is satisfied that a miscarriage of this kind has occurred, it will not matter whether the evidence is fresh or new.8 In coming to this conclusion, the Court must have regard to the fact that the jury has had the advantage of seeing and hearing the witnesses give their evidence.9
The second instance is where the appellant has not had a fair trial.10 The appellant will not have had a fair trial where the jury did not have before it evidence not available to the appellant at trial which, if accepted by the jury, was likely to lead to an acquittal.11 A trial will not become unfair because the appellant has not called evidence at trial which was available to them, or which they could reasonably have been expected to have become aware of and could have produced.12 It is in this second instance of miscarriage that the distinction between new and fresh evidence assumes material importance. As Barwick CJ pithily stated in Ratten:
“To sum up, if the new material, whether or not it is fresh evidence, convinces the court upon its own view of that material that there has been a miscarriage in the sense that a verdict of guilty could not be allowed to stand, the verdict will be quashed without more. But if the new material does not so convince the court, and the only basis put forward for a new trial is the production of new material, no miscarriage will be found if that new material is not fresh evidence. But if there is fresh evidence which in the court’s view is likely to be accepted by a jury, and which is so cogent in the opinion of the court that, being believed, it is likely to produce a different verdict, a new trial will be ordered as a remedy for the miscarriage which has occurred because of the absence at the trial of the fresh evidence”.13
In relation to this second instance of miscarriage, in Gallagher v The Queen (Gallagher)14 Gibbs CJ considered that there were three main considerations which should guide a Court of Appeal in deciding whether a miscarriage of justice has occurred.15
the conviction will not usually be set aside if the evidence could, with reasonable diligence, have been produced at the trial16
whether the evidence is credible, or at least capable of belief
whether the evidence, if believed, might reasonably have led the jury to return a different verdict.17
In Victoria Gibbs CJ’s statements in Gallagher have generally been accepted as properly defining the applicable principles.18 In R v Nguyen & Tran the Court of Appeal stated:
“An appellate court cannot set aside a verdict on a ‘fresh evidence’ ground unless it is satisfied that there has been a miscarriage of justice because the fresh evidence was not put before the jury at the trial. If this ground is made out, the verdict of guilty will be quashed and, depending on the evidence considered as a whole, the appellate court may direct a retrial or discharge the appellant. Ordinarily a court will not be satisfied that the ‘fresh evidence’ ground is made out unless:
the evidence was not available, or could not with reasonable diligence have become available at the trial
the evidence is relevant and otherwise inadmissible
the evidence is apparently credible (or at least capable of belief) and
there is a significant possibility (or maybe a likelihood) that the evidence, if believed, would have led the jury, acting reasonably, to acquit the applicant if the evidence had been before it at the trial. (If there is any practical difference between a test expressed in terms of ‘a significant possibility’ and a test expressed in terms of ‘a likelihood’, none has thus far been suggested; for it has been said that ‘likelihood’ is no more than a substantial – a ‘real and not remote’ – chance regardless of whether it is less or more than 50 per cent”.19
However, as the High Court stated in Ratten, great latitude must be extended to an appellant in determining what evidence, by reasonable diligence, could have been available at trial.20 The High Court further stated that it would probably only be in exceptional cases that evidence which was not actually available to an appellant would be denied the quality of fresh evidence.21 The High Court warned, however, that the appellant must bear the consequences of their decisions as to the calling and treatment of evidence at trial.22
The Court of Appeal in Nguyen & Tran23 did not highlight the distinction between fresh and new evidence, or the consequences of that distinction. In more recent cases, however, the Court of Appeal has emphasised that distinction. In Rich v The Queen (Rich)24 the Court of Appeal stated that a higher bar “applies to the admission of evidence which the accused could have called at the trial”25 and went on to say that:
“If admissible evidence persuades the court that there has been a miscarriage of justice because the appellant was innocent, or there is a reasonable doubt as to his or her guilt, it will quash the conviction and order entry of a verdict of acquittal or a new trial. That is the case whether the evidence is characterised as ‘fresh’ or only ‘new’”.
“If the court is not persuaded of either of those matters, but the evidence is ‘fresh’ and there is a significant possibility that the failure to receive it could result in the maintenance of an unfair conviction, the verdict will be set aside because there would be a miscarriage of justice if it were permitted to stand . . .
“In considering whether there has been a miscarriage of justice the court will consider any admissible new or fresh evidence in the context of the whole of the evidence.”26
In Lucas Gentry (A Pseudonym) v The Queen the Court of Appeal quoted with approval its statements in Rich v The Queen and again emphasised the distinction between fresh and new evidence.27
Of course, the fundamental question is whether the Court perceives that a substantial miscarriage of justice has occurred.28 In a case where the Court is so satisfied, the appeal will be successful.
If the evidence sought to be relied upon on appeal is such that the Court would be satisfied that the appellant is innocent, or casts such doubt upon the appellant’s guilt that the verdict of guilty must be quashed, then the characterisation of the evidence as fresh or new is of no consequence.
If, however, the evidence is sought to be relied upon in support of the contention that an appellant did not receive a fair trial due to the absence of that evidence, then the characterisation of the evidence as fresh or new assumes considerable import. In this case a higher bar applies to the admission of new evidence. The Court will not be satisfied that such a ground of appeal has been made out unless the evidence is relevant and otherwise admissible, credible (or at least capable of belief) and was not available, or could not with reasonable diligence have become available, at trial. Finally, the Court must be satisfied that there is a significant possibility that the evidence, if believed and placed before the jury at trial, would have led the jury, acting reasonably, to acquit the appellant.
Katherine Farrell is a senior fellow at Melbourne Law School and associate to Justice Christopher Beale. She will commence the reader’s course at the Victorian Bar in March.
1. Craig v R (1933) 49 CLR 429, 439.
2. The High Court does not have the power to receive fresh evidence on appeal, see Mickelberg v The Queen (1989) 167 CLR 259.
3. See Rich v The Queen (2014) 43 VR 558, 571 footnote . Weng v The Queen (2013) 236 A Crim R 299, 311 .
4. (1974) 131 CLR 510.
5. Note 4 above, 516. In the case where no new or fresh evidence is produced this ground can be made out on the materials produced at trial.
6. Note 4 above, 518.
7. Note 6 above.
8. Note 6 above. For an example of this instance of a miscarriage of justice see Greensill v The Queen (2012) 37 VR 257.
9. M v The Queen (1994) 181 CLR 487, .
10. Note 4 above, 516.
11. Note 10 above.
12. Note 4 above, 517.
13. Note 4 above, 520.
14. Gallagher v The Queen (1986) 160 CLR 392.
15. Note 14 above, 395.
16. Note 14 above, 396.
17. Note 14 above, 396-7.
18. See for example R v Nguyen & Tran (1998) 4 VR 394, R v AHK  VSCA 220, Rich v The Queen (2014) 43 VR 558.
19. R v Nguyen & Tran (1998) 4 VR 394, 400-1 (citations omitted).
20. Note 4 above, at 517.
21. Note 20 above.
22. Note 20 above. For an example of an appeal where the requirement for reasonable diligence would have been waived see Weng v The Queen  VSCA 221.
23. And also in R v AHK  VSCA 220.
24. Rich v The Queen (2014) 43 VR 558.
25. Note 24 above, 570-1.
26. Note 24 above, 571-2.
27. Lucas Gentry (A Pseudonym) v The Queen  VSCA 54, .
28. Weng v The Queen 311, .