R v VI

The appellant was convicted of two counts of indecent treatment of a child under 16. On appeal, the appellant sought to rely on affidavits from his trial counsel, solicitor, and three prosecution witnesses to introduce potentially exculpatory evidence that came to light after the jury retired. The central issues before the court were whether the proposed evidence constituted fresh evidence, whether it was capable of belief by a reasonable jury, and if it should be received. Additionally, the appellant argued that his trial counsel's failure to seek instructions or independently apply for a mistrial deprived him of a fair trial.

The court considered whether the new evidence could be classified as fresh evidence and if it met the threshold for belief by a reasonable jury. The court found that the evidence was indeed fresh and capable of belief, and thus should be received. Regarding the conduct of the trial counsel, the court examined whether the counsel's actions were reasonably explicable and whether they deprived the appellant of a fair trial. The court concluded that the trial counsel's conduct, or lack thereof, did not provide a reasonable forensic explanation and resulted in a miscarriage of justice. The absence of the fresh evidence at trial, when evaluated with the trial evidence, gave rise to a significant possibility that a reasonable jury would have acquitted the appellant.

The court granted the application to adduce further evidence, allowed the appeal, quashed the convictions, and ordered a re-trial. This comprehensive approach ensures that the appellant receives a fair opportunity to have his case re-examined in light of the newly introduced evidence.