Fresh Evidence Through A Private Investigator

Whether It Can Sway The Court To Extend The Time To File An Appeal

Introduction

Fresh evidence on appeal, as it suggests, implies new evidence that was not brought before the trial court. Consequently, the applicant seeks to use it at the appeal court. Appeals are generally decided based on the records from the court below and the arguments of counsel, not new trial. It is however possible to seek the leave of the court to raise new evidence provided the applicant meets the conditions for the court to grant the application. Where it is granted, such evidence will be subjected to the crucible of cross examination.  

Raising application for fresh evidence

To raise an application for fresh evidence successfully, the applicant must evince the following based on the decision in Palmer v Queen1:

1. that the evidence could not, by the exercise of due diligence, have been available for the trial;
2. the evidence is relevant or potentially a decisive issue.
3. the evidence is credible, that is, it is reasonably capable of belief; and
4. the evidence is such that, if believed, it could have affected the result at trial. 

The source of the evidence being a private investigator is not so much of an importance as satisfying these conditions.  

The above summation is however the ideal situation where the appeal is already proper before the court. Where an applicant is yet to file an appeal because the statutory time to do so has elapsed, they must first file an application for an extension of time to allow him to file the appeal. They may however rely on the fact of the new evidence to boost the chances of his application.

This is because, notwithstanding the fresh evidence, an application for an extension of time has its conditions to be satisfied before the court can grant it. A criminal appeal in Alberta is generally expected to be filed within one month after the decision and where leave is required, it is expected to be filed within the time stated in the enactment for commencing the appeal2.

Requirements to secure an extension of time – whether fresh evidence through a private investigator is a factor

There is no absoluteness in the rule to be applied when deciding whether to grant an extension or not. It is usually treated on case-by-case basis. Depending on the circumstances, a court may consider additional factors. These factors can include the extent of the delay – whether reasonable or unreasonable giving the explanation provided, whether a guilty plea resulted in a benefit for an applicant, and whether there is a real doubt an applicant committed the offence for which he or she pled guilty.

How much weight should be given to the different factors will vary from case to case. Once the factors are weighed and considered, the issue for a court to decide is whether the justice of a case requires that an extension be granted or not.  

In R v Harness3, the Alberta Court of Appeal admitted it has residual discretion to grant an extension even where some or none of the criteria for extension of time have been met, and that, in exercising that discretion, the overriding consideration is what the interests of justice require4. Some of the factors to be considered by the court include whether the applicant has demonstrated a bona fide intention to appeal within the appeal period, a reasonable excuse for the delay, prejudice arising from the delay, and the merits of the proposed appeal. Ultimately, the discretion must be exercised according to what the interests of justice require. R v Roberge5  

Regarding the interest of justice, the court is mindful of the vested interest of the judgment creditor which crystalizes the moment the statutory time to appeal elapses. The court would not tamper with that interest unless weighty reasons are provided to justify the interference.

Basically, the burden on the applicant is to bring before the court valid reasons for the delay. It has been held that mistake or misunderstanding of the rules do not constitute genuine reason to tamper with that interest6. Similarly, illness, absence from jurisdiction, ignorance has also not swayed the court to grant an extension.

Whether fresh evidence may sway the court to grant an extension of time will depend largely on when the private investigator was hired, found the information, and decided to appeal – whether they were diligent or proactive about it and essentially what the justice of the matter requires. It therefore sounds a good reasoning to put in one’s appeal before the expiration of time and where, inadvertently, out of time, take steps immediately to remedy it.  

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