R v O'SHEA

In *R v O'Shea*, the applicant sought permission to appeal against a sentence imposed by a lower court. The applicant also sought to adduce fresh evidence by way of affidavit, detailing alleged threats, violence, and adverse health impacts experienced while in custody following his sentencing. He further contended that mandatory participation in rehabilitation programs, such as the SBC program, despite psychiatric reports indicating he would not benefit, could negatively affect his parole prospects.

The central legal issue before the Court of Criminal Appeal was whether the applicant's affidavit constituted admissible fresh evidence that would likely influence the outcome of the appeal. This required the court to consider the established criteria for admitting fresh evidence on appeal, namely that the evidence could not have been obtained with reasonable diligence for use at trial, that it would probably have an important influence on the result, and that it must be apparently credible. The court also had to determine if the reception of such evidence would demonstrate a miscarriage of justice.

The court reasoned that the applicant's counsel had previously informed the sentencing judge of the applicant's history of violence and abuse in prison, and had argued for a suspended sentence on the grounds of the harshness of a custodial sentence. The sentencing judge was therefore aware of the potential hardship and the applicant's background. The court found that the matters raised in the applicant's affidavit were not new evidence, as the sentencing judge had already been apprised of the applicant's difficult circumstances and had taken them into account when deciding whether to suspend the sentence. Consequently, the court concluded that the affidavit did not contain evidence that could not have been obtained with reasonable diligence for the trial, nor did it demonstrate that the result of the case would have been different had the evidence been presented at trial.

The court refused to admit the affidavit and refused the application for permission to appeal.