When assessing whether evidence is 'fresh' under s 353A(6)(a), defence counsel's reasonable diligence must be assessed in light of the entitlement to assume that the prosecution will comply with its disclosure obligations and will not lead false or misleading evidence. Misleading forensic evidence that dramatically misrepresents the significance of the absence of DNA evidence in a circumstantial case can constitute a substantial miscarriage of justice where conviction was not inevitable. The fact that an applicant has served the non-parole period of their sentence is a relevant but not decisive factor in the discretion between acquittal and new trial.
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