Fresh evidence

Today’s decision in R. v. Johnson, 2009 ONCA 668, relying on R. v. Palmer, [1980] 1 S.C.R. 759, at p. 775, sets out the test for adducing fresh evidence, namely that:

 

 

(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.

 

(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) [The evidence] 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. [Citations omitted.]

 

[30]         Here, because of its equivocal nature, the proposed evidence could not reasonably be expected to have affected the result, in our view.  Moreover, although due diligence is less of a factor for consideration in criminal cases, the type of fresh evidence proposed could very easily have been – and should have been – tendered at trial had it been felt to be germane at the time.