3.4 When you can use new evidence

Last Reviewed: June 2023 Reviewed by: Court of Appeal Staff

In exceptional circumstances, the appeal court will allow you to introduce, by affidavit, new evidence on matters that weren’t heard at trial. However, before the appeal court will hear that evidence, you must persuade the court of all the following points regarding your new evidence:

  • The evidence could not have been called at trial.
  • The evidence is relevant because it relates to an issue that was a deciding factor.
  • The evidence is reliable.
  • The evidence could reasonably be expected to have affected the outcome (when taken with the other evidence presented at the trial).

It’s hard to satisfy all of these conditions, so applications to introduce new evidence are rarely successful. 

Read the Rules

Rule 59 provides information about how to apply to introduce new evidence.

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