In a circumstantial case, new evidence that undermines the specific scenario advanced by the prosecution at trial does not necessarily establish a miscarriage of justice if the remaining circumstantial evidence is sufficiently strong to support the conviction on an alternative basis. The test for miscarriage of justice based on new but not fresh evidence is more onerous than for fresh evidence: the court must be satisfied that innocence is shown or reasonable doubt established, rather than merely that there is a significant possibility of a different verdict. The dissent (Fitzgerald P) would have held that where the jury was asked to convict on a specific scenario that has been substantially eroded, the starting point must be that the jury convicted on that basis, and the appellant lost a chance of acquittal fairly open to him.
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