Evidence from witnesses known to the accused but who were obstructive and uncooperative due to employer confidentiality policies may be treated as 'fresh evidence' on appeal in exceptional circumstances, particularly where the employer actively withheld exculpatory material and police also failed to pursue the witnesses. The freshness requirement is not a rule of law but a facet of the broader miscarriage of justice inquiry under s 689 of the Criminal Code (WA). Where witnesses were equally unavailable to both police and defence, it is unfair to penalise the defence alone for lack of diligence.
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