An appellant seeking to rely on fresh evidence of mental impairment discovered after trial must adduce evidence that, had the condition been known, the trial would have been conducted differently — theoretical possibilities about different forensic decisions are insufficient. The mental impairment defence under s 28 Criminal Code 2002 (ACT) requires more than reduced ability to control conduct; the evidence must establish a real possibility that the accused 'could not control' the conduct. Expert evidence about freeze responses and delayed reporting by sexual assault victims is the type of evidence s 108C of the Evidence Act 2011 (ACT) was designed to enable, as it explains counterintuitive witness behaviour that might otherwise reflect adversely on credibility.
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