Under s 159(6)(a)(ii) of the Criminal Procedure Act 1921 (SA), the statutory test of fresh evidence for second or subsequent appeals requires strict application as a jurisdictional precondition, and reasonable diligence ordinarily encompasses the actions of both the applicant and his or her legal representatives. The latitude principle from Ratten v The Queen applies to the assessment of reasonable diligence but cannot bypass the statutory freshness requirement. An applicant who was personally aware of the significance of evidence and could have obtained it with ease cannot transform it into 'fresh' evidence by blaming lawyers for the failure to obtain it. However, the majority left open that there may be circumstances — such as active misleading by lawyers — where it would not be appropriate to attribute a lawyer's failures to the applicant.
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