Where an appeal is already on foot, an application for an extension of time to amend the notice of appeal will be refused only if the court can be satisfied the appeal is so devoid of merit that granting the extension would be futile. The court cannot reach that conclusion without examining all the evidence that was before the trial judge. Post-trial evidence (here, lung biopsy results) that was not available at trial due to medical advice against the procedure may found an arguable fresh evidence case.
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