How to Win an Appeal Using New (Fresh) Evidence

One of the most common questions our appeal clients ask is whether new evidence can be presented to the court on appeal.  Often times, they ask this while explaining that their trial lawyer did not represent them well. This actually raises two related, but different questions: whether the appeal can be won using new or fresh evidence; and whether a new trial would be granted because of the trial lawyer’s performance.

This article examines how an appeal can be won by presented fresh evidence. Specifically, the article explains the following: the principle of new or fresh evidence on appeal; the legal test that must be met before the court will receive the fresh evidence; the types of fresh evidence that are admissible on appeal; the process for presenting fresh evidence; and the strategic factors that should be considered.

Leading new evidence on an appeal

Most appeals are argued based on the “record” that is created that trial.  That is, the evidence that the appeal court will consider is limited to the transcript of the trial proceedings and any exhibits that were filed at the trial. Sometimes, however, information that was not part of the evidence presented at the trial exists and an appellant may be interested in leading this evidence at the appeal hearing. This new evidence is called “fresh evidence.” And, it is possible to lead this evidence at an appeal hearing in limited circumstances. The best appeal lawyers understand what types of fresh evidence can help a client win their case and when it is strategically advantageous to lead this new evidence.

The test for the admissibility of fresh evidence

Section 683 of the Criminal Codegives the Court of Appeal jurisdiction to hear new evidence on an appeal. The test for the admissibility of fresh evidence was explained by the Supreme Court of Canada in R v Palmer(1980), 14 C.R. 22 (SCC). The overarching test is whether it is in the “interests of justice” to admit the new evidence. This is a discretionary decision on the part of the Court and is determined on a case-by-case basis, with consideration of the unique context and facts of an individual case. In assessing whether it is in the interests of justice to allow new evidence at the appeal hearing the Court will consider four factors:

1. Due diligence: Generally, evidence will not be admissible if, by due diligence, it could have been adduced at trial. This means that if the evidence was available and know to the appellant at the time of the trial, but for some reason not lead at the trial, then it should not be admitted on appeal. However, it is well recognized that due diligence is applied less strictly in criminal cases.
2. Relevant: The new evidence must be relevant. Relevant means that the fresh evidence is probative or assist with the determination of a fact at issue in the case. Evidence that Is not relevant to an issue in the case will not be admitted because it does not assist the court in assessing whether the appeal should be allowed.
3. Credible: This factor means that the new evidence must be reasonably capable of belief. If the new evidence is untrustworthy or unreliable it may not be admitted.
4. Impact the result: Finally, the fresh evidence, if believed must reasonably be able to affect the result. This means that when the fresh evidence is considered along with evidence in the case, if it was accepted by the judge or the jury the result of the trial may have been different. If the result of the trial would have been the same, even if the new evidence was admitted, then it would not be in the interest of justice for the appeal court to receive the evidence.

Types of evidence that can be admitted as fresh evidence

There is no limit on the particular type of evidence that can be introduced as fresh evidence. Forensic evidence, expert evidence, witness statements or real evidence, are all examples types of evidence that are admissible as fresh evidence, provided they meet the Palmertest.

Additionally, fresh evidence may be lead where an appellant raises the issue of ineffective assistance of counsel. Ineffective assistance of counsel is a special type of appeal, where an appellant alleges that their trial lawyer’s representation is inadequate. The admission of fresh evidence and the procedure to be followed when alleging ineffective assistance of counsel is governed by special rules set out by the court and is dealt with in a separate article on this website.

The process of adducing fresh evidence on appeal

In order to lead fresh evidence at the appeal hearing, the appellant must bring a motion to adduce fresh evidence. This requires at a minimum a notice of application explaining what the fresh evidence is and why it is in the interests of justice that it be received by the court. Because fresh evidence is only admissible in limited circumstances, a diligent appeal lawyers often find it useful to file a factum (i.e. written brief) explaining how the proposed fresh evidence meets the Palmercriteria. The fresh evidence itself is generally filed in the form of or along with an affidavit explaining the content and how it came to light. This new evidence must be filed with the court in a sealed envelope.

Because fresh evidence is new and was not tested during the trial proceedings, the Crown has the ability to cross-examine the person who swears the affidavit setting out the new evidence, in an attempt to undermine its admissibility (i.e. to show that the admission of the evidence is not in the interest of justice). Unlike trials, where cross-examination occurs in court, where an appeal Crown seeks to cross-examine the affiant on a fresh evidence application a special examination will be scheduled for the cross-examination. The cross-examination is transcribed and presented to the court of appeal in the form of a transcript. Additionally, in responding to the fresh evidence the Crown may also seek to lead their own evidence also for the purpose of showing that it is not in the interest of justice to admit the appellant’s fresh evidence.

When should fresh evidence be lead

As may be apparent, seeking to admit fresh evidence on an appeal may raise issues and challenges for the appellant. For instance, if the fresh evidence is something that comes from the appellant, he or she may have to subject themselves to cross-examination in relation to the fresh evidence. The best appeal lawyers will look at numerous factors to determine whether seeking to admit fresh evidence on appeal is the right decision in a particular case. These factors include, but are not limited to: the facts of the particular case, the strength of the grounds of appeal that do not relate to the fresh evidence, the importance of the fresh evidence to the case, the risks associated with cross-examination, etc.