Where fresh evidence takes the form of a third-party confession to the crime for which the petitioner was convicted, the test is whether, taking into account all admissible evidence including evidence that is merely new, the confession is cogent and credible in the sense that a reasonable jury could accept it as true. If so, its unavailability at trial necessarily results in a substantial miscarriage of justice. Similar fact evidence of the third party's propensity to commit crimes of the same distinctive character is admissible and relevant to the assessment of the confession's credibility. The distinction between fresh and new evidence continues to apply, with the test applied by reference to what was known or discoverable at the time of the most recent appeal.
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