Ali (a pseudonym) v The Queen

This matter concerned an application by the applicant, Ali (a pseudonym), to lead fresh evidence on an appeal against sentence. The applicant had been sentenced in the District Court for offences including unlawful sexual intercourse and indecent assault. The appeal court was asked to consider whether new psychiatric and psychological reports, suggesting the applicant had an undiagnosed autism spectrum disorder, should be admitted as fresh evidence.

The central legal issue before the court was the admissibility of the fresh evidence. Specifically, the court had to determine if the proposed evidence met the three well-recognised preconditions for admitting fresh evidence on appeal: that it could not have been obtained with reasonable diligence for use at the original sentencing hearing, that it would probably have had an important influence on the result, and that it was apparently credible. The court also considered the purpose of leading fresh evidence on an appeal against sentence, which is to introduce facts existing at the time of sentencing that were unknown to the judge, or to re-contextualise known facts.

The court reasoned that while the new reports suggested an autism spectrum disorder, this did not automatically render the original diagnosis of a paraphilic disorder, narcissistic personality style, and psychopathic traits incorrect. The court found that the applicant had not demonstrated that the autism spectrum disorder could not have been obtained with reasonable diligence prior to sentencing. Furthermore, the court concluded that even if the autism spectrum disorder diagnosis had been before the sentencing judge, it was not reasonably arguable that this evidence would have had an important influence on the sentence imposed, particularly given the significant degree of commonality between autism spectrum disorder and narcissistic personality traits, and the applicant's apparent risk of reoffending identified by the original psychiatrist.

Consequently, the court determined that the proposed fresh evidence did not satisfy the criteria for admissibility. As no point of principle was raised and no ground of appeal was reasonably arguable, permission to appeal was refused.