Admission of Fresh Evidence: Crown’s Failure to Disclose (the “Dixon Test”)
There are two ways in which fresh evidence may become admissible on appeal: (1) Dixon Test: On the basis of non-disclosure giving rise to a breach of the right to make full answer and defence. This is governed by the test first set out in Dixon, (the “ Dixon test”); or (2) Palmer Test: On the basis that the cogency of the evidence is such that it warrants admission and the interests of justice require that it be received. This is governed by the test first set out in R. v. Palmer , [1980] 1 S.C.R. 759 (the " Palmer test ").. The Dixon Test T here are two components to the Dixon test. 1. Did the Crown breach its duty to disclose? If the court concludes that, at the relevant time, the Crown failed in its disclosure obligations, then Dixon requires that the court go on to consider the following: 2. Was there a “reasonable possibility” that the non-disclosure: (a) impacted the outcome of...