Area of Law – Sentencing

An Article about Appeal because of new evidence

Appeal From County Court to Court of Appeal on Basis of Fresh Evidence
People often approach us on the basis that they have been found guilty and that there is new evidence that would affect that finding of guilt.

People want to know if that can be the basis of an appeal and in what circumstances. The short answer is that new evidence can be the basis of an appeal if it is compelling enough. The Courts are concerned about avoiding miscarriages of justice and so are willing to listen to this sort of evidence.

The fresh evidence can not be something minor and is clearly something that you should be discussing with lawyers straight away if you think it applies in your case.
Some of the case law on this point follows:

General proposition
Particularly on point are the statements of Winneke, P. that the fundamental question is whether a miscarriage of justice has occurred and that an appellate court will always receive fresh evidence if it can be clearly shown that the failure to receive it might have the result that an unjust conviction is permitted to stand, in which case the appeal must be allowed. To that passage may be added the opinions expressed by the English Court of Appeal in the civil case of Meek v. Fleming to the effect that, even if the criteria for the admission on appeal of fresh evidence are not satisfied, the evidence may nevertheless be admitted if that is necessary in order to prevent a miscarriage of justice. As the cases collected in Director of Public Prosecutions v. Burgess show, that approach has been adopted in many criminal cases.

R v Kucma [2005] VSCA 58 (23 March 2005)

(this was where evidence given of mental state and diagnosis subsequently changed)

The test as stated by Mason and Deane, JJ. in Gallagher v. The Queen namely, that the Court will intervene where there is “a significant possibility that the jury, acting reasonably, would have acquitted the applicant of the charge if the new evidence had been before it in the trial.”

R v Kucma [2005] VSCA 58 (23 March 2005)


Date: 09/01/2009