the meaning of a teardrop tattoo. The fresh evidence is at a level
of cogency that not merely diminishes the weight of Totten’s evidence but serves to disqualify him from giving it.
 Although I would order a new trial rather than enter an
acquittal, to refuse to admit the fresh evidence because of a lack
of due diligence would risk a miscarriage of justice. And it would
risk a miscarriage of justice for a young man facing a life sentence with no eligibility for parole for 25 years. Because of the
serious consequences for Abbey, I think we should be reluctant
before allowing the lack of due diligence to override such cogent
 There is another reason not to give effect to the defence’s
lack of due diligence — and it is an important reason. Totten
was the Crown’s witness, a key witness for the Crown. Yet in
Gager, the Crown sought to impeach Totten’s credibility and the
reliability of his evidence on several matters that were relevant
to his opinion in this trial. And then on this appeal, the Crown
made no attempt to contest the deficiencies, inaccuracies and
even falsehoods in Totten’s trial testimony, as demonstrated by
the fresh evidence. In saying this, I intend no criticism whatsoever of Mr. Alvaro. He argued the Crown’s position well with his
usual candour and fairness. The same may be said for Mr. Harris’ and Mr. Pillay’s arguments on behalf of Abbey.
 But the Crown is not an ordinary litigant. Its role is not
to obtain a conviction, but to try to ensure a fair process and a
just result. The Crown has impeached Totten, its own key witness, albeit in another proceeding, and yet by its silence in this
proceeding must be taken not to have challenged the many
serious problems in Totten’s trial testimony shown by the fresh
evidence. In these circumstances, it seems to me to be fundamentally unfair and unjust for the Crown to rely on Abbey’s lack of
due diligence to defeat his fresh evidence application.
 I would allow Abbey’s application to admit his fresh evidence.
4. Did the trial judge err by failing to instruct the jury not
to consider Totten’s evidence on the timing of obtaining a
 Although I conclude that Abbey is entitled to succeed on
his appeal based on the fresh evidence, for the sake of completeness I will briefly address his argument on the jury charge.
 The trial judge’s charge to the jury was impeccable. Still,
Abbey contends the trial judge made one error. This contention
rests on a footnote in Doherty J.A.’s judgment in Abbey #1.
At para. 63 of his reasons, in discussing the scope of an expert’s