Where the Director of Public Prosecutions agrees before the sentencing judge that it is unnecessary to resolve a material factual dispute, and the defence may have been influenced by that concession in deciding not to call evidence, the court of appeal will be slow to grant leave to the Director to reopen those factual findings on appeal. The sentencing judge is not bound by agreed facts or prosecution concessions and must sentence on the basis of the material before the court, including verified depositions; where defence submissions contradict depositions, the offender bears the onus of giving sworn evidence to displace them. However, the prosecution's conduct at first instance remains a powerful factor against the grant of leave to appeal.
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