obtained the teardrop tattoo to signify the killing of a rival gang
member. For the Crown, that evidence could not be improved on.
 Finally, in her closing address to the jury, the Crown
relied on Totten’s evidence. She argued:
All of those 71, who had been convicted of murder or manslaughter and had
a teardrop tattoo, said that the tattoo signified the killing . . . His [Totten’s]
opinion rested, in part, on the explanation given for the teardrop tattoo by
all 71 of the interviewed gang members who had both tattoos and had been
convicted of murder or homicide related offence. Their responses linking
their teardrop tattoos with the murders of rival gang members could not
have been motivated by a desire to avoid criminal liability or responsibility
because they had already been convicted.
 And, after excluding the other two possible meanings
of a teardrop tattoo, the Crown concluded this portion of her
closing address by stating that Abbey had obtained a teardrop
tattoo for only one reason: he believed he had killed a member of
the Galloway Boys.
 The absence of Totten’s evidence would therefore reasonably be expected to have affected the verdict at trial.
3. Does the defence’s failure to adduce the fresh evidence at
trial affect its admissibility on appeal?
 Once a party meets the first two criteria for the admissibility of fresh evidence on appeal — as Abbey has done — the
court must still consider the third criterion, the due diligence
criterion. The court asks whether an explanation has been
offered for the failure to address the evidence at trial and
whether any explanation offered affects the admissibility of the
evidence on appeal.
 The question is important because the “interests of justice” include not just Abbey’s interests but the public interest in
preserving and promoting the integrity of the trial process. Even
fresh evidence that could be expected to have affected the verdict
can be ruled inadmissible if no satisfactory explanation is given
for not leading it at trial. On the other hand, fresh evidence may
be so cogent that it should be admitted on appeal even without a
satisfactory explanation for not adducing it at trial: see Truscott
(Re), at paras. 101-102.
 Here, Abbey offers no explanation for the defence’s failure to adduce the fresh evidence at either trial. Instead, Abbey
submits simply the fresh evidence is so cogent that not to admit
it may result in a miscarriage of justice.
 The Crown acknowledges that the due diligence criterion
will yield where its “rigid application” may result in a miscarriage
of justice. Thus, the Crown accepts that were we to hold that the