What is the legal test for the introduction of fresh evidence in an appeal?
Ontario, Canada
The following excerpt is from R. v. Carter-Teixeira, 2019 ONCJ 838 (CanLII):
The test for the introduction of fresh evidence in appeals governs applications to re-open trials after a verdict has been reached: (1) The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this general principle will not be applied as strictly in a criminal case as in civil cases: see McMartin v. The Queen, 1964 CanLII 43 (SCC), [1964] S.C.R. 484. (2) The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial. (3) The evidence must be credible in the sense that it is reasonably capable of belief, and (4) It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.[3]
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