When exercising the discretion under s 568(2) of the Crimes Act 1958 (Vic) to direct acquittal or retrial after quashing a conviction, the appellate court is not confined to the admissible evidence actually led at trial. Evidence that was unknown to and unknowable by the prosecution at the time of trial — such as voluntary statements subsequently made by the accused — may be taken into account at the first stage of the Fowler analysis in determining whether there is evidence sufficiently cogent to justify a conviction. The Fowler prohibition on giving the prosecution 'an opportunity to supplement a defective case' does not apply where the new evidence could not have been obtained for the original trial.
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