What is the test for reopening a criminal case?
British Columbia, Canada
The following excerpt is from J.K.S. v. H.G.S., 2007 BCSC 1632 (CanLII):
Our court of appeal in Hodgkinson v. Hodgkinson, 2006 BCCA 158, 53 B.C.L.R. 4th 52, upheld Dillon J’s decision not to reopen because she was not satisfied on a balance of probabilities that a miscarriage of justice would probably occur and that the new evidence would probably have changed the result of the trial. The court of appeal in that case made no reference to the second part of the test, but it seems that the new evidence in that case did not exist at the time of trial, so due diligence was not an issue on the application.
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