Fresh evidence on a sentence appeal that relates only to the credibility of a witness called at a trial of issues is unlikely to meet the test for admission unless it is clear, unequivocal and of such a nature as to be likely to have affected the factual findings in some significant respect. A sentencing judge may properly take into account non-consent as an aggravating factor under s 321 of the Criminal Code (WA) without the prosecution being required to charge under the more serious s 326. The court noted, without deciding, that the Department of Corrective Services' practice of refusing programme participation to prisoners with pending appeals has the potential to work an unfairness.
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