Evidence not called at trial because of an informed forensic decision by the accused to accept counsel's reasonable advice cannot be regarded as fresh evidence on appeal. The Ratten v The Queen dual approach requires the appellate court first to decide whether it believes the further evidence and whether it is satisfied of innocence or doubt, and then separately to consider whether the evidence is fresh evidence. A direction that guilt must be the only rational conclusion is merely an amplification of proof beyond reasonable doubt and there is no overarching requirement to give it. Defences need not be left to the jury where there is no realistic possibility, as opposed to speculation, that the jury might reach a view on the facts leaving open an arguable case.
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