The difference between the Crown case relied on at a first trial and the case to be relied on at a retrial must be substantial if the difference is to stand as a bar to an order for retrial, but the assessment of whether a retrial should be ordered must also weigh the cumulative effect of the weakened Crown case, the history of prosecutorial decisions, the oppressive nature of a third trial, and the passage of time. New expert scientific evidence that contradicts central elements of the Crown case theory and is in closer conformity with the accused's exculpatory account is capable of establishing a miscarriage of justice even where the verdict was not unreasonable on the evidence before the jury.
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