Fresh evidence is evidence that was in existence at the time of the trial but for some reason was not put before the court. The test for its admission on appeal was set out in Palmer v. The Queen, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759 at 775: (i) through due diligence the evidence could have been adduced at trial; (ii) the evidence is relevant to a decisive or potentially decisive issue at trial; (iii) the evidence is credible; and (iv) if believed, the evidence could have affected the result of the trial. As the evidence the father applied to admit on appeal was not in existence at the time of the trial, it was not fresh evidence.
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