Tsang v Francis

The case of Tsang v Francis involved an appeal against a conviction for breaching a restraining order by approaching a protected person. The defendant, Tsang, was convicted in the County Court of Victoria and sought to appeal to the Court of Appeal on the grounds of fresh evidence. Tsang argued that the new evidence, which included witness statements and a video, would have led to a different outcome if it had been available at the original trial, potentially resulting in a miscarriage of justice.

The legal issues before the court were whether the fresh evidence presented by Tsang should be accepted and whether the acceptance of this evidence would result in a miscarriage of justice. The court had to determine the admissibility of the new evidence and assess whether the original verdict was unsafe and unsatisfactory given the new material. The primary focus was on whether the new evidence was credible, material, and could have affected the outcome of the original trial.

The Court of Appeal considered the criteria for accepting fresh evidence, including the unavailability of the evidence at the original trial and its potential to materially affect the outcome. The court held that the fresh evidence did not meet the threshold for acceptance as it did not establish a real possibility that the verdict was unsafe and unsatisfactory. The court found that the evidence was not compelling enough to warrant a new trial and concluded that there was no miscarriage of justice. The appeal was dismissed, and the original conviction was upheld.