An analysis of the Common Form legislation and the use for new and fresh evidence

  • Joseph Crowley

Student thesis: Doctoral Thesis


This thesis is an exploration of the development, interpretation and implementation of the new and fresh evidence rules in criminal appeals in Australia. The core legislative provision allowing for such appeals in Australia is called the common form. The common form was enacted uniformly in every State in Australia in the early twentieth century and has remained almost unchanged for over a century.

This thesis examines the introduction of that legislation and its effect on the reception of new and fresh evidence in criminal appeals. The jurisprudence on the reception of such evidence was developed in conjunction with jurisprudence on the common form legislation.

In England and Wales, it has been identified that the jurisprudence regarding new and fresh evidence is a symptom of wider problems with the interpretation of the common form. Specifically, England and Wales have had two inquiry’s to address appellate courts’ reluctance in overturning convictions: the Donovan Committee in 1968 and Runciman Commission in 1995. These inquiries made
recommendations for legislative change to encourage courts to be more relaxed in their reception of new and fresh evidence. Despite this, British appellate courts still have problems determining appeals on factual error.

This thesis considers the findings of the two British inquiries, and compares those findings with the Australian jurisprudence. In so doing, this thesis seeks to demonstrate that Australian courts (like the British courts) take a restrictive approach to new and fresh evidence. In Australia, unlike England and Wales, however, there has been no overarching inquiry into these issues. Moreover, no State has sought to introduce legislation to address these or wider issues that exist with the statutory regime for criminal appeals. This thesis opines that change to the rules for the reception of new and fresh evidence is necessary because of the difficulties Australian appellate courts experience in determining
appeals on factual error.

The thesis compares the Australian experience with that of British and concludes with some recommendations for legislative change in Australia.
Date of Award9 Feb 2022
Original languageEnglish
SupervisorTerry Goldsworthy (Supervisor) & David Field (Supervisor)

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