What is the test for an application to adduce fresh evidence on an appeal?

British Columbia, Canada


The following excerpt is from Regina v. Ziegler, 2008 BCPC 31 (CanLII):

The principles governing an application to adduce fresh evidence on an appeal are well-known. They were summarized succinctly by McIntyre J. in Palmer and Palmer v. The Queen, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759 at p. 775: (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.

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