In response to a question about the Derek Bromley case by reader Jerry Fitzsimmons, Flinders University legal academic Dr Bob Moles explains why fresh evidence at appeal can help overturn an unsafe conviction, but the Crown cannot use fresh evidence to bolster its case.
The Crown has but one chance to prove its case against a person accused of a crime. It presents that case at trial, and once the Crown closes its case at trial, that concludes the case for the prosecution. It cannot re-open the case at trial. On the appeal it cannot present any additional evidence to try to prove the guilt of the accused. That would offend against the double-jeopardy principle.
The purpose of an appeal is merely to review the case put forward by the prosecution at trial.
As part of the appeal, the appellant can put forward “fresh evidence” to show that the conduct of the trial was unfair – the verdict was unsafe. In considering such fresh evidence, the court will merely ask if that evidence had been put to the jury at the trial, is there a reasonable possibility that it might have influenced the jury in arriving at their verdict – if so it will overturn the verdict as unsafe. It does not make its own determination of the guilt or innocence of the accused.
Fresh evidence is simply evidence which the accused could not reasonably have known about at the time of the trial.
The Crown can of course adduce evidence at the appeal to rebut the evidence put forward by the appellant.
What the Crown cannot do is to present additional evidence (beyond that which was presented at the trial) in an attempt to bolster its case against the appellant.
The principles stated by the High Court say that the appeal court “cannot usurp the function of the jury” – it cannot determine any factual question which has not been put to the jury at trial. The High Court says that a conviction cannot be maintained on the basis of any evidence which has not been put to the jury.
As I noted in the research report on the Bromley appeal, see from page 27: http://netk.net.au/Bromley/Bromley35.pdf
“The jury is at trial, and remains throughout the appellate process, the constitutional tribunal for deciding the criminal guilt of the accused “. Kalbasi v WA High Court.
This is why we said in relation to the Bromley appeal that allowing the Crown to put before the appeal court evidence about Bromley’s prior conviction in an attempt to persuade the court not to allow Bromley’s appeal to proceed (for an unrelated offence) was a breach of this fundamental rule.
So, in summary, fresh evidence is that adduced by an appellant to show there was a reasonable likelihood that the trial was unfair.
The Crown is not allowed to adduce fresh evidence to show the guilt of the appellant on any appeal.