Evidence board of the Federal Court will recommend the Federal Government should consider the possibility of the Government having to use evidence in court in the wake of the Court of Appeal ruling on the Government ‘evidence of evolution’.

The Government is expected to respond to the report within a fortnight.

The High Court ruled last month that the Government had failed to prove its case in the trial of former National Health Minister Fiona Nash, who was charged over the alleged misuse of public money.

In a decision which was widely criticised, the High Court said the Government was “not entitled to the benefit of the doubt” about its case because of the fact it had not been presented with evidence to support its claims.

“The Government has not provided any evidence that could establish that any reasonable person would have expected that the trial would produce any result that is inconsistent with its position on this matter,” Justice Geoffrey Robertson wrote in his decision.

“The only thing the Government is entitled to rely on is the fact that it has not been shown that it could have had any effect whatever on the outcome of the trial.”

The ruling was seen by some as a vindication for the Government, which had appealed the decision in the Federal Circuit Court.

But others criticised the decision, saying it left the Government open to legal challenges.

Justice Roberts also rejected the argument that the High Courts decision should be taken as “a formal warning” to the Government not to use the evidence.

However, Justice Roberts acknowledged that the decision had been “not without controversy”.

“But in any event, the Court is bound by its decision, as it is the court of public opinion,” he said.

As the Government prepares to appeal the decision to the Federal Supreme Court, Justice Robertson wrote that the Court had to decide whether the evidence was sufficient to establish the Government could have benefited from it.

He said there was a need for “a detailed consideration of whether, in light of the public concern at the time, it is necessary to give further notice of the proposed hearing”.

The Federal Court heard in November that the State’s evidence about Nash’s alleged misuse had been considered in evidence by a panel of experts.

Nash has said the case was based on false information and the case against her was based upon “misleading and inaccurate” claims about her.

Despite the Court ruling, JusticeRoberts wrote that he was satisfied the evidence “does not prove beyond a reasonable doubt that the evidence inadmissible is inconsistent or misleading”.

He noted that the “government’s response to the case raises several questions” and added: “There are a number of other matters that will have to be considered as a result of this decision.

This will include the issue of whether the Government should rely on the information it has received in the case.

It also will include whether, and how, the Government will proceed with its claim to have the matter heard by the Court.