Where an accused person's intellectual disability is discovered after trial, and the Crown relied at trial on admissions made during police interactions, the absence of evidence of that disability may constitute a miscarriage of justice warranting a new trial. Evidence of intellectual disability is properly characterised as 'fresh evidence' where neither the accused's legal representatives nor the accused himself appreciated the significance of the disability. The court left open the question of whether the admissions would have been admissible under ss 85(2) and 90 of the Evidence Act 1995 (NSW) had the intellectual disability been known.
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