unsupported by the six studies he claimed he relied on. Thus, the
fresh evidence is sufficiently cogent that if the trial judge had the
benefit of it Totten would not have been qualified as an expert on
the meaning of a teardrop tattoo and the jury would not have
heard his evidence. The absence of Totten’s evidence could reasonably be expected to have affected the verdict. The defence’s
failure to adduce this evidence at trial should not bar its admissibility on appeal. The interests of justice warrant its admission to
prevent a miscarriage of justice. Abbey asks that we overturn his
conviction and enter an acquittal, or at least order a new trial.
[ 8] For the most part, the Crown does not challenge the fresh
evidence. But the Crown submits that the fresh evidence would
not have the effect of disqualifying Totten as an expert witness. At
most, it might affect the weight a jury would give to his evidence.
Most important, the fresh evidence should not give this court any
concern about the reliability of Abbey’s conviction or the possibility of a miscarriage of justice. The defence made a tactical decision
not to adduce this evidence at trial and should not be entitled to
revisit that decision on appeal. The Crown asks that Abbey’s
application to introduce fresh evidence and his appeal be dismissed.
[ 9] Although this appeal turns almost entirely on Abbey’s fresh
evidence application, Abbey also submits that the trial judge
made one error in his charge to the jury: he failed to instruct the
jury not to consider Totten’s evidence on the timing of obtaining
a teardrop tattoo. The issues on this appeal may therefore be
stated as follows:
( 1) Is the fresh evidence sufficiently cogent to have disqualified
Totten from giving expert evidence about the meaning of a
( 2) Would the absence of Totten’s evidence reasonably be
expected to have affected the verdict?
( 3) Does the defence’s failure to adduce the fresh evidence at
trial affect its admissibility on appeal?
( 4) Did the trial judge err by failing to instruct the jury not to
consider Totten’s evidence on the timing of obtaining a teardrop tattoo?
( 5) What is the appropriate remedy?
[ 10] I would answer yes to the questions posed in issues
1 and 2, and no to the questions posed in issues 3 and 4. In
essence, I have concluded that the fresh evidence shows Totten’s
opinion evidence on the meaning of a teardrop tattoo to be too