A post-sentence diagnosis of a degenerative medical condition (such as Alzheimer's disease) that was present but undiagnosed at the time of sentencing may qualify as fresh evidence capable of being received by the Court of Criminal Appeal, but the Court retains a discretion to refuse to receive it where the sentencing judge already gave substantial weight to the offender's ill-health and advanced age, and the additional diagnosis would not have warranted a different sentence. The question whether evidence that was available but not used at first instance can ever ground an appeal against sentence was left open.
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