A criminal appellate court retains a residual discretion to set aside a conviction and order a re-trial based on new evidence (not fresh evidence) where to refuse to do so would result in a miscarriage of justice. The interpretation in R v Hodges that this discretion was limited to cases requiring acquittal is rejected. The test is whether there is a significant possibility that a jury acting reasonably would have acquitted had the evidence been before it. The Ratten/Lawless principle that an accused bears the consequences of not calling available evidence applies only to deliberate choices by the accused or counsel, not to failures attributable to the solicitor's failure to brief counsel with available material.
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