Duhaime's Law Dictionary


Fresh Evidence Definition:

Evidence that existed at the time of the trial, but for various reasons could not be put before the court.

Related Terms: New Evidence, Appeal, Evidence, Interest Reipublicae Ut Sit Finis Litium, Res Noviter Veniens Ad Notitiam

A term used in the context of appeals to limit the acceptance of evidence not referred to during the hearing or trial of which the appeal is from.

Distinguished from new evidence.

Some jurisdictions deal with the issue of adducing fresh evidence on an appeal by statute such as these extracts from §23 of the Criminal Appeal Act 1968 of the United Kingdom:

"(T)he Court of Appeal may, if they think it necessary or expedient in the interests of justice ... receive any evidence which was not adduced in the proceedings from which the appeal lies....

"The Court shall, unless they are satisfied that the evidence, if received, would not afford any ground for allowing the appeal, exercise their power of receiving it if (a) it appears to them that the evidence is likely to be credible and would have been admissible in the proceedings from which the appeal lies on an issue which is the subject of the appeal; and (b) they are satisfied that it was not adduced in those proceedings but there is a reasonable explanation for the failure to adduce it."1

In Jens v Jens, Madam Justice Levine of the British Columbia Court of Appeal defined fresh evidence as follows:

"(F)resh evidence is evidence that existed at the time of the trial, but for various reasons could not be put before the court."

Holly Brinton, in her Civil Appeal Handbook defines fresh evidence as evidence that was:

"... previously undiscovered."

In Mulholland v. Mitchell, these words were published by the English Court of Appeal:

"(T)he question whether fresh evidence is admitted or not is to be decided by an exercise of discretion.... (T)he question is largely a matter of decree and there is no precise formula which gives a ready answer.

"In this case, I think that it can be fairly argued that the basis on which the case was decided at the trial was suddenly and materially falsified by a dramatic change of circumstances. An appeal or the whole question of damages is pending and it would be unsatisfactory for the court to deal with that appeal without taking into account the falsification, if such there be, of the basis of the trial judge's award....

"In the face of these changes, to allow the appeal to proceed on the basis of factors (accepted at the trial) which have been falsified to such an extent would hardly be creditable to the judicial process."

In Palmer v The Queen, Justice Laskin of the Supreme Court of Canada listed the following principles of law in the admissibility, on an appeal, of fresh evidence:

  • "The evidence should generally not be admit­ted if, by due diligence, it could have been adduced at trial provided that this general principle will not be applied as strictly in a criminal case as in civil cases....
  • "The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial.
  • "The evidence must be credible in the sense that it is reasonably capable of belief, and
  • "It must be such that if believed it could reasonably, when taken with the other evi­dence adduced at trial, be expected to have affected the result."

In the context of family law, though, note these words of Madam Justice Newbury of the the British Columbia Court of Appeal in Luney v Luney, referring directly to the principles laid down in Palmer v the Queen:

"The usual approach of this court to the introduction of fresh evidence is well-known. In the family law context, a slightly more elastic approach is often taken. The overriding consideration is ... the interests of justice."

Note these words of Madam Justice Southin of the British Columbia Court of Appeal in Bradbury v Insurance Corporation of British Columbia:

"In my opinion, the foundation of the reluctance of appellate courts to permit fresh evidence is founded in the maxim interest reipublicae ut sit finis litium. From that concept comes the requirement in all the fresh evidence cases that the person who seeks to adduce it must use all reasonable diligence to find all the evidence before the trial."

In Jens v Jens, the British Columbia Court of Appeal cited Bradbury v ICBC as follows:

"(T)he nature of an appeal is to examine the record and determine whether there has been an error of law or a palpable error of fact: it is not a continuation of a trial at a different stage. Thus, generally speaking, the need for certainty and finality leaves no room for the admission of fresh evidence on appeal."

In a 1902 case, Marino v Sproat, Justice Hunter wrote:

"... an application to admit further evidence which might have been adduced at the trial, should be supported by the affidavit of the applicant indicating the evidence desired to be used and setting forth when and how the applicant came to be aware of its existence, what efforts, if any, he made to have it adduced at the trial, and that he is advised and believes, that if it had been so adduced, the result would probably have been different."

REFERENCES:

  • Bradbury v. I.C.B.C., 42 B.C.L.R. (2d) 397 (1989). Cited with approval in Hamilton v Busch, 92 BCLR (2d) 198 (1994, BCCA)
  • Brinton, Holly, Civil Appeal Handbook (Vancouver: Continuing Legal Education Society, 2012), Part 6
  • Coulter (Guardian ad litem) v. Leduc, 2005 BCCA 199 (which relies on Palmer v Queen, op. cit.)
  • Jens v Jens, 2008 BCCA 392
  • Luney v Luney, 2007 BCCA 567
  • Marino v Sproat, 9 BCR 335 (BCCA, 1902)
  • Mulholland v. Mitchell, [1971] 1 All E.R. 307. Cited with approval in Knutson (Guardian ad litem of) v. Farr, 12 D.L.R. (4th) 658 (BCCA, 1984) and Leenstra v. Miller, 21 C.P.C. (3d) 252 (BCCA, 1993)
  • NOTE 1: Since changed to: "(a) whether the evidence appears to the Court to be capable of belief; (b) whether it appears to the Court that the evidence may afford any ground for allowing the appeal; (c) whether the evidence would have been admissible in the proceedings from which the appeal lies on an issue which is the subject of the appeal; and (d) whether there is a reasonable explanation for the failure to adduce the evidence in those proceedings."
  • Palmer v. The Queen, [1980] 1 SCR 759

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