The principles that apply to an application to re-open a trial to adduce fresh evidence were summarized by Ehrcke J. in Zhu v. Li, 2007 BCSC 1467 [Zhu], leave to appeal ref’d 2008 BCCA 239. After a thorough review of the cases, he said at para. 20: 20 From the cases, I conclude that the following principles apply to an application to re-open a trial to adduce fresh evidence: 1. Prior to the entry of the formal order, a trial judge has a wide discretion to re-open the trial to hear new evidence. 2. This discretion should be exercised sparingly and with the greatest care so as to prevent fraud and abuse of the court's process. 3. The onus is on the applicant to show first that a miscarriage of justice would probably occur if the trial is not re-opened and second that the new evidence would probably change the result. 4. The credibility of the proposed fresh evidence is a relevant consideration in deciding whether its admission would probably change the result. 5. Although the question of whether the evidence could have been presented at trial by the exercise of due diligence is not necessarily determinative, it may be an important consideration in deciding whether a miscarriage of justice would probably occur if the trial is not re-opened.
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