Fresh evidence – appeal proceedings – refusal to admit evidence on appeal – no reasonable explanation advanced for failure to adduce such evidence at first instance – court not satisfied admitting such evidence would be in interests of justice
D was granted, by a single judge of the Court of Appeal, leave to appeal against conviction. Such leave was granted on the ground that, having regard to the Trial Judge’s finding that he “might not have understood clearly that [the evidence of a witness examined in proceedings in New Zealand] might be used [by the prosecution] for the trial proper” together with the unresolved issue of his alleged impecuniosity which stood in the way of his attending the proceedings in New Zealand or being represented thereat, the Trial Judge erred in admitting that witness’s deposition otherwise than for the limited purpose of producing his business records as exhibits. D sought from that single Judge of the Court of Appeal a ruling that he could adduce on appeal evidence of such lack of clear understanding and of such impecuniosity.
Held, ruling that he could not adduce any such on appeal, that:
- D could have adduced such evidence at first instance but chose not to do so in the face of a clear invitation by the Trial Judge to call evidence.
- He advanced no reasonable explanation for his failure to adduce such evidence and therefore failed to satisfy the conditions of s. 83V(2) of the Criminal Procedure Ordinance (Cap. 221).
- As for s. 83V(1) of the Ordinance, the Court was not satisfied that admitting such evidence on appeal would be in the interests of justice.