What is the test for admitting fresh evidence on appeal?

Ontario, Canada


The following excerpt is from R. v. Geil, 2012 ONCJ 740 (CanLII):

[25] In dealing with the issue of the admission of fresh evidence on appeal, the test for considering whether or not to admit such evidence is governed by the following principles. (See Regina v. Palmer, (1979) 1979 CanLII 8 (SCC), 50 C.C.C. (2d) 193 and Regina v. McMartin, (1965) 1964 CanLII 43 (SCC), 1 C.C.C. 142.) (1) It is not in the interests of justice that the appeal court receive evidence as a matter of course in the absence of specific direction in the governing statute authorizing that. (2) Whether the accused made an attempt to adduce the evidence at trial is an important consideration. (3) The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial. (4) The evidence must be credible in the sense that it reasonably is capable of belief. (5) 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.

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