Bowden (a pseudonym) v The Queen

(2017) 54 VR 135; [2017] VSCA 46

Victorian Court of Appeal

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Interrogate

Catchwords

1. Criminal Law
2. › Appeal
3. › Conviction appeal
4. › Fresh and new evidence
5. › Distinction between fresh evidence and new evidence
6. › Test for new evidence on appeal
7. › Whether new evidence raises reasonable doubt in mind of appellate court
8. › Whether substantial miscarriage of justice established
9. › Criminal Procedure Act 2009 (Vic), s 276(1)(c)
1. Criminal Law
2. › Appeal
3. › Conviction appeal
4. › Fresh and new evidence
5. › New evidence
6. › Evidence available at trial but not called
7. › Obligation of accused to adduce available evidence
8. › Adversarial nature of criminal trial
1. Criminal Law
2. › Appeal
3. › Sentence appeal
4. › Whether sentence manifestly excessive
5. › Sexual offences against children
6. › Indecent act with child under 16
7. › Sexual penetration of child under 16
8. › Incest
9. › Crimes Act 1958 (Vic), ss 44(2), 45(1), 47(1)

Quick Take

Where an appeal relies on new evidence (evidence available at trial but not called), the appellate court will set aside a conviction only if the new evidence shows innocence or raises a reasonable doubt in the court's own mind — the 'significant possibility' test applicable to fresh evidence does not apply. The question whether a successful new evidence ground should result in acquittal rather than retrial was raised but left open.