Queensland Consolidated Acts

CRIMINAL CODE 1899 - SECT 671AB

671AB Fresh and compelling evidence and new and compelling evidence—meanings

(1) This section applies for the purpose of deciding under this chapter division whether there is fresh and compelling evidence or new and compelling evidence.

(2) Evidence is
"fresh" if—

(a) the evidence was not adduced in the proceedings in the court of trial before which the appellant was convicted; and

(b) either—

(i) the evidence could not have been adduced in the proceedings in the court of trial with the exercise of reasonable diligence by the defence; or

(ii) the evidence could have been adduced in the proceedings in the court of trial with the exercise of reasonable diligence by the defence but was not because of the incompetence or negligence of a lawyer acting for the appellant in those proceedings.

(3) For subsection (2) (b) (i) , the defence is taken not to have failed to exercise reasonable diligence in relation to the evidence if—

(a) the prosecution failed to comply with the prosecution’s obligation mentioned in section 590AB (1) in relation to the evidence; and

(b) the defence did not discover the evidence only because of the failure to comply with that obligation.

(4) Evidence is
"new" if—

(a) the evidence was not adduced in the proceedings in the court of trial before which the appellant was convicted; and

(b) the evidence could have been adduced in the proceedings in the court of trial with the exercise of reasonable diligence by the defence.

(5) Under this chapter division, evidence that is both fresh evidence and new evidence is taken to only be fresh evidence.

(6) Evidence is
"compelling" if—

(a) the evidence is reliable; and

(b) the evidence is substantial; and

(c) the evidence—

(i) is highly probative in the context of the issues that were in dispute in the proceedings in the court of trial before which the appellant was convicted; or

(ii) would have substantially weakened the case for the prosecution in the proceedings in the court of trial.

(7) Evidence that would be admissible under this chapter division is not precluded from being fresh and compelling evidence or new and compelling evidence merely because it would have been inadmissible—

(a) in the proceedings in the court of trial before which the appellant was convicted; or

(b) in earlier proceedings in the Court for an appeal or subsequent appeal against the appellant’s conviction.

(8) In this section, the
"defence" is the appellant or a lawyer acting for the appellant in proceedings in the court of trial before which the appellant was convicted.