31 October 2025
In Naraidoo v WA Police [2024] WASC 429, Justice McGrath of the Supreme Court of Western Australia considered an appeal against a conviction for breaching a Family Violence Restraining Order. There were two grounds of appeal, both of which were allowed, resulting in the conviction being set aside.
This blog focuses on the second ground, which examined whether additional evidence attained after the trial concluded could be used on appeal to overturn the conviction.
Background Of The Case
Mr Naraidoo was found guilty in the Magistrates Court for breaching a Family Violence Restraining Order by coming within 10 meters of the protected persons property boundary. The Magistrate determined that Mr Naraidoo had driven down the protected persons driveway to be in line with a lamp post, and that the lamp post was within 10 meters of the external boundary.
After the trial concluded, new evidence from a licencing surveyor was obtained, showing that the lamp post was 14.4 meters away from the external boundary of the property. Mr Naraidoo therefore claimed that this new evidence, if obtained prior to trial, would have cast significant doubt on his guilt, and as a result there had been a miscarriage of justice.
The Rules – Fresh vs New Evidence
Section 39(1) of the Criminal Appeals Act (WA) provides that an appeal court must decide an appeal only on evidence which was before the lower court. However, section 40(1) of the Criminal Appeals Act (WA) allows an appeal court to admit evidence in limited situations.
There is a well-established distinction between fresh evidence and new evidence. Fresh evidence is evidence which did not exist at the date of the trial, or could not, with reasonable diligence, have been obtained or discovered for use at the trial. New evidence is evidence that could, with reasonable diligence, have been obtained or discovered for use at trial: Beamish v The Queen [2005] WASCA 62 [9].
The cases of Lawless v The Queen (1979) 142 CLR 659 and DPJB v Western Australia [2010] WASCA 12 [66] found that an appellate court will not allow an appeal against a conviction on the basis of new evidence, as distinct from fresh evidence, unless the new evidence establishes that the appellant is innocent or raises such doubt that that appeal court is satisfied the appellant should not have been convicted.
Further, Gallagher v The Queen (1986) 160 CLR 392 and Mickelberg v The Queen (1989) 167 CLR 259, found that an appellate court will not allow an appeal against a conviction on fresh evidence unless there is a “significant possibility” that, on the basis of all admissible evidence (being fresh evidence and the evidence given at trial), a jury acting reasonably, would have acquitted the applicant.
The Court’s Reasoning and Decision
Justice McGrath found that the surveyors evidence could, with reasonable diligence, have been obtained or discovered for use at trial, so could only be used if it established such doubt that the court was satisfied that Mr Naraidoo should not be convicted.
Considering that the Magistrate accepted that Mr Naraidoo did not proceed past the second lamp post, Justice McGrath decided the new evidence raised reasonable doubt as to whether the appellant breached the FVRO, in that he did not come within 10 meters of the external boundary of the residence.
Accordingly, the appeal was allowed and Mr Naraidoo’s conviction was overturned.
