Photogrammetric evidence analysing CCTV footage to determine a person's height is not 'fresh evidence' for appeal purposes, as it has been available in Australian courts for many years and is readily ascertainable by electronic search. Cross-examination directed to a witness's reasons for choosing to affirm rather than take an oath will rarely if ever be proper cross-examination as to credit under the Evidence Act 2008 (Vic). Where the Crown case does not depend on identification from CCTV footage, evidence going only to the identity of a person in such footage is peripheral and the failure to call it does not constitute counsel incompetence.
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