The failure by prosecuting authorities to disclose that a barrister acting as a police informer facilitated the identification of a drug shipment does not necessarily result in a substantial miscarriage of justice where the accused was not a client of the informer-barrister, the evidence would likely have been privileged and in any event would not have been excluded under the s 138 balancing exercise given the gravity of the offending, and a permanent stay would not have been warranted because the prosecution did not manipulate the court process. The distinction between fresh and new evidence remains relevant on a petition of mercy referral under s 327 of the Criminal Procedure Act 2009, and the higher threshold for new evidence (positive satisfaction of innocence or reasonable doubt as to guilt) applies where the accused made a forensic decision not to call available witnesses at trial.
The full text is available to signed-in members, including the 18 later cases that cite this judgment.
4 of the 18 citing cases carry a classified treatment. How each court treated it is available to signed-in members.