|Hon. James O'Reilly|
The court unanimously ruled that the proffered new evidence should be admitted, and allowed the appeal, set aside Sub-Lieutenant Thibeault's conviction and ordered a new trial.Naturally, appellate courts are reluctant to introduce new evidence on appeal. All relevant and available evidence should normally be put before the trier of fact at trial to determine whether the Crown has met its burden of proving guilt beyond a reasonable doubt. However, there are exceptions. One is where the evidence was not tendered at trial because the accused’s defence counsel recommended against it, counsel’s advice was incompetent and, because the evidence could have raised a reasonable doubt about the accused’s guilt, the result was a miscarriage of justice.The general test for the admission of fresh evidence on appeal comprises four criteria, originally set out in R v Palmer,  1 SCR 759:1. 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;2. The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial;3. The evidence must be credible in the sense that it is reasonably capable of belief, and4. 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.