Criminal Litigation

Where an appellant seeks to rely on fresh evidence by calling a witness who was not called at trial as a result of the advice or decision of the  defendant’s counsel and it is alleged that the advice or decision was mistaken, the Court of Appeal will not admit the evidence unless there is a lurking doubt that injustice was caused by flagrantly incompetent advocacy. It would seldom, if ever, be a reasonable explanation for not calling a witness that the risk of calling him was considered to be too great and counsel had advised that he should not be called.