“Fresh” Evidence and the New Trial
| Author | Frank B. Baldwin |
| Published date | 01 January 1966 |
| Date | 01 January 1966 |
| DOI | http://doi.org/10.1111/j.1468-2230.1966.tb01104.x |
a2
THE
MODEItN
LAW REVIEW
VOL.
29
of
a
particular piece of land, and not the defendant personally. This
is not to say, however, that the decision is not to be welcomed, for
it may be regarded as
a
notable attempt to invigorate the common
law
aoctrine of restraint of trade by one who
has
been subject
to
the refreshing breezes that
so
often blow through the Restrictive
Practices Court.
In none of the cases was any attention given to the economic
issues involved and whether,
in
fact, the agreement operated to
the detriment of the public in the widest economic sense, for such
issves are totally irrelevant pder the common
law
doctrine
of
restraint of trade.
It
may be felt, with some justification, that
it
is anachronistic for the court to be able to ignore such vital issues
when considering agreements of such considerable economic impor-
tance. The Restrictive Practices Court
has
shown not only
how
essential
it
is
to consider the economic implications of
a
commercial
agreement, but also how many of such agreements are detrimental
to the public interest when considered in this light,1611*
PETER
G.
WHITEMAN.
"
FnEsH
"
EVIDENCE
AND
TEE
NEW TRIAL
IF
the report of the Donovan Committee is reflected in legislation
or
in
a
change of judicial practice, the 'successor of the Court of
Criminal Appeal may
soon
begin to hear
on
appeal
''
fresh
')
evi-
dence which was available but not presented at trial
and
to order
new trials
on
the basis of such evidence.' The Committee's recom-
mendation includes evidence which was deliberately withheld
through stupidity, negligence
or
error, provided that
it
is
''
rele-
vant and credible, and
if
a
reasonable explanation
is
given for the
failure to place
it
before the
jury
at the trial."
It
may also include
some cases of withholding for tactical reasons
or
because of the
10
The
Monopoliee Commiseion came to the general conclusion that euch agree-
monte did not operate against the public. interest, although certain aepecte
of
such agreements did, in
fact,
do
80.
Thie conclusion ie to
a
certain extent
both surprising and disa pointin and the moet radical recommendation
WDE
that
a
petrol eupplier dome de%veriee
of
petrol to company-owned etatione
exceeded
15
per cent.
of
hiis
total deheriee should not be allowed to acquire
any
further etatione,.
if
hie total deliveriee exceeded
10
million gallons.
One
of
the moet intoreeting parts
of
the report
ia
the extremely cogent
note
of
diaaent by Profeesor
T.
Berns,
which raises many point8 not convincingly
answered by the Report. For those people who expected a more vigoroue
Report, Professor
Barna
provide8 eome consolation
:
Bee
the Monopoliee
Commission
Re
ort
on
the Bupply
of
Petrol to Retailers in the United
Eingdom, July
f9GS.
17
The
Court
of
Appeal have upheld the judgment
of
Buckley
J.
in
Petrofina
(Tho
Times,
December
18,
lW),
?n
the round
(
et
Lord
Denning
M.R.),
$hat
as
such agreemente are withm
tho
&ardenfeE
doctrine, thy muet be
juetiiied
as
reaeonnble.
It
seeme
Petrofina
were entitled
to
protect their
competitive poeition but the reetraint imposed
wna
unremoneble in
(he
circumatancee.
1
Report
of
the Interdepartmental Committee
on
the Court
of
Criminal Appeal,
Cmnd.
27G5,
pp.
8091
(hereinafter cited
08
Donovan Committee Report).
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