Where an appeal succeeds on the basis of fresh evidence that the complainant has not been examined upon, ordering an acquittal rather than a retrial would usurp the function of the DPP. A retrial is ordinarily appropriate in such circumstances, particularly where cogent evidence supporting the Crown case remains. The introduction of a subsequent statutory defence (s 80AG, similar age defence) is a matter the DPP may take into account in exercising prosecutorial discretion on retrial.
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