Where a conviction is quashed following a s 79 referral and the Crown concedes it will not call a key witness at retrial, the Court may proceed directly to assess the sufficiency of the remaining evidence under s 8(1) without first considering fresh and new evidence, and may enter a verdict of acquittal if the remaining evidence is incapable of establishing guilt beyond reasonable doubt. The onus is on the Crown to establish that a retrial is the most appropriate remedy. The application of autrefois acquit may preclude the Crown from leading at retrial evidence of conduct constituting the essential elements of a charge on which the accused was acquitted.
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