Criminal Appeals Act 2004

For the purposes of section 46H, evidence is fresh in relation to the new charge if —

despite the exercise of reasonable diligence by those who investigated offence A, it was not and could not have been made available to the prosecutor in trial A; or

it was available to the prosecutor in trial A but was not and could not have been adduced in it.

For the purposes of section 46H, evidence is compelling in relation to the new charge if, in the context of the issues in dispute in trial A, it is highly probative of the new charge.

For the purposes of this section, it is irrelevant whether the evidence being considered by the Court of Appeal would have been admissible in trial A against the acquitted accused.