What is the legal test for re-opening a defence case?
British Columbia, Canada
The following excerpt is from Regina v. Ziegler, 2008 BCPC 31 (CanLII):
In the Working Manual of Criminal Law, edited by Madam Justices Bennett and Sinclair Prowse at p. 264.3, they have the following to say with respect to re-opening a defence case: The test for re-opening the defence case prior to conviction is set out in R. v. Hayward. Once a trial judge has convicted the accused, the test for re-opening is more rigorous to protect the integrity of the process and the interest in finality of proceedings. The test found in Palmer v. The Queen (1979), 1979 CanLII 8 (SCC), 50 C.C.C. (2d) 193 (S.C.C.) for admitting fresh evidence on appeal is a helpful guideline to trial judges. Additionally the trial judge should consider whether the application to re-open is an attempt to reverse a tactical decision made at trial. If the trial judge finds that the test for re-opening has been met the next issue is whether to carry on with the trial or to declare a mistrial.
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