Fresh evidence presented on appeal in the form of untested hearsay documents, without sworn testimony or opportunity for cross-examination, will ordinarily be insufficient to satisfy the Ratten test for a verdict of acquittal, even where the documents are potentially exculpatory and the Crown concedes a miscarriage of justice. The appellate court will ordinarily order a new trial in such circumstances, applying the Gilham factors including the seriousness of the offences, the public interest in prosecution, and the desirability of jury determination of guilt.
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