Evidence known to an applicant at trial, or obtainable with reasonable diligence, does not qualify as 'fresh' for the purposes of a second appeal under s 326C of the Criminal Procedure Act 2009 (Vic), even where the applicant asserts mental health difficulties or pressure from counsel. Evidence from closed court hearings to which the applicant was denied access may qualify as 'fresh', but must still independently satisfy the 'compelling' requirement of being reliable, substantial, and highly probative or capable of substantially weakening the prosecution case.
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