REGINA V. FEPULEAI, David

HODGSON JA: We have come to the view that the evidence should not be admitted, and I will give brief reasons to you. Those reasons may or may not be expanded in the final judgment in the case.

The respondent seeks to read the affidavits in this Crown Appeal, namely an affidavit by the respondent himself dated 29 May 2007, and an affidavit by a legal advisor annexing a medical report, being an affidavit dated 3 October 2007.

The difficulty with the application is that the matter dealt with in this evidence is something that occurred prior to the original sentencing process. It is a matter that the respondent discussed with legal advisors and instructed them not to rely on in the sentencing process. That circumstance raises a difficulty for the application, and assimilates this case somewhat to a decision of the Court of Criminal Appeal in R v Deng [2007] NSWCCA 216. There is a possible distinction from that case in that in Deng it appears that the material was not put forward at the sentencing process by reason of a tactical decision made by lawyers.

However, it does seem to me that the circumstance that the matter arose before sentence, and was discussed with legal advisors, does prevent this material satisfying the ordinary requirements for fresh evidence admissible on an appeal.

In my view, there may be occasions where evidence that does not satisfy those requirements may be admitted, if the requirements of justice strongly support the admission. However, I don't think the circumstances of this case would be sufficient to justify a conclusion that there are strong considerations that would override the normal requirements for fresh evidence. Much of the weight of the circumstances sought to be led, it appears, was taken into account by the sentencing judge when he took into account a medical condition of the respondent, and his vulnerability in custody. I would add that the particular circumstances alleged would be matters strongly disputed by the Crown in any event.

Taking all these matters into account my view is that a case is not made out for the admission of this evidence.

HISLOP J: I agree.

LATHAM J: I also agree.