Kuczynski v The Queen

This matter came before the High Court of Australia on an application for special leave to appeal by Richard John Kuczynski. The core of the dispute concerned the test applied by the lower court in assessing the impact of fresh evidence on a jury's verdict in a criminal trial.

The legal issues before the High Court involved determining the appropriate threshold for granting a new trial based on fresh evidence. Specifically, the court was required to consider whether the test applied by the trial judge, which focused on whether the fresh evidence was "likely" to have produced a different result, was correct, or if a less stringent test, such as a "significant possibility" of a different outcome, should be applied. The court also had to consider whether the trial judge's assessment of the fresh evidence usurped the function of the jury.

The applicant argued that the "likely" test was too severe and speculative, citing authorities such as *Gallagher* and *Mickelberg*. These cases suggested that an appellate court's function is limited to determining whether the evidence is reasonably capable of sustaining a verdict, and that a miscarriage of justice is demonstrated if there is a significant possibility that fresh evidence would have led to a different verdict. The applicant contended that the trial judge's reasoning, which suggested it was unlikely that certain fresh evidence would have altered the jury's verdict, demonstrated an improper second-guessing of the jury's role.

The High Court granted special leave to appeal.