The preponderance of High Court authority favours the 'significant possibility' test over the 'likelihood' test for assessing fresh evidence on criminal appeal, though there is a real distinction between the two formulations. On a reference under s 672A of the Criminal Code (Qld), the usual rules governing reception of fresh evidence apply prima facie, but there is a residual discretion to receive evidence that fails those tests where refusal would lead to a miscarriage of justice.
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