On a reference of the whole case by the Attorney General under s 140(1)(a) of the Sentencing Act 1995 (WA), the applicable test is whether there is a significant possibility that a jury acting reasonably would have acquitted the appellant in light of the admissible evidence now available. Fresh forensic evidence based on scientific advances not available at the time of trial is admissible as new evidence. Similar fact evidence of other offences committed by a third party in strikingly similar circumstances is admissible to prove that the third party, not the accused, committed the offence. The admissibility of third-party confessions by a deceased declarant as an exception to the hearsay rule remains unresolved in Australian law, though two of three judges admitted such evidence on the basis that the hearsay rule should not be applied inflexibly where the evidence possesses sufficient relevance, reliability and probative value.
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