A forensic decision not to call a witness whose evidence was available at trial, made because of a risk the witness would not give the expected evidence, does not render that evidence 'fresh evidence' on appeal. Directions on joint criminal enterprise need not separately address each element of the offence where the evidence does not give rise to a realistic possibility that the accused was present for some elements but not others. Directions on lies as consciousness of guilt need not individually identify each lie where the Crown Prosecutor has recently done so and the lies comprehensively relate to the offence itself, though the majority and dissent disagreed on this point.
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