In this recent matter the court considered the correct test on an application to adduce new evidence on appeal from criminal conviction where that evidence is not fresh evidence. The appellant, convicted of three counts of defrauding her employer of more than $500,000, sought to adduce a clinical neuropsychologist report, arguing that a retrial was warranted on the basis that there was a miscarriage of justice since that evidence was not presented at trial. Relevantly, in doing so she conceded that the proposed evidence was new as distinct from fresh evidence.
Gotterson and Philippides JJA and Daubney J
22 May 2018
The thrust of the appellant’s argument on appeal was that since her case had been wholly dependent upon her testimony, evidence relevant to her credit was critical. She argued that the jury did not have the benefit of a neuropsychologist report, and so had formed an assessment of both her evidence and credit “without the information of the cognitive deficiency” and were also “not made aware of the effect of the transient ischemic attacks upon the appellant’s ability to effectively express her version of events to the jury”. .
Importantly, she conceded that the report was new evidence, and not fresh evidence: that is, it was evidence which was available to her or which she could reasonably have been expected to produce at the trial. She also conceded that the evidence at trial was sufficient to sustain the convictions. .
Nonetheless, relying upon R v HBR  QCA 193, , she sought a retrial to rectify the miscarriage of justice which she contended had occurred when the identified evidence was not led. . In that case, Mullins J stated that the court has a residual discretion to admit new or fresh evidence, where it can be shown that there was “a significant possibility that a jury hearing the new evidence would have reached a different verdict”. .
The court distinguished R v HBR  QCA 193 as being inconsistent with both the High Court authorities and Supreme Court decisions regarding the principles to be applied when considering an appeal against conviction on the ground that a miscarriage of justice occurred based on further evidence not given at trial. In its view, the statement of test in R v HBR  QCA 193 was “an erroneous statement of the residual jurisdiction to set aside a verdict irrespective of the type of further proposed evidence”. . It clarified that the proper inquiry as to whether there was a miscarriage of justice is whether the evidence not called at trial, when considered in conjunction with the evidence at trial, shows the accused to be innocent or raises a reasonable doubt as to guilt: see Ratten v The Queen (1974) 131 CLR 510, and Lawless v The Queen (1979) 142 CLR 659. .
Forming the view that the report, taken at its highest, could not have demonstrated that the verdicts of the jury were not reasonably open when considered with the evidence at trial, ultimately the court refused the application for leave to adduce the evidence and dismissed the appeal. .
A de Jersey