Evidence that comes to the attention of defence lawyers after the jury retires but before verdict may be classified as 'fresh' rather than 'new' where the critical witness was not available and could not have been contacted with reasonable diligence. Trial counsel's failure to apply for a mistrial in such circumstances may be a reasonable forensic decision where the critical witness has not provided a signed statement. Where the prosecution case turns wholly on the complainant's reliability and fresh evidence raises the possibility that the complainant was uncertain whether the alleged offending was a dream, there is a significant possibility of acquittal warranting a re-trial.
The full text is available to signed-in members, including the 12 later cases that cite this judgment.
9 of the 12 citing cases carry a classified treatment. How each court treated it is available to signed-in members.