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The appellant's ground of appeal maintains that after East had pleaded guilty counsel for the appellant could and should have moved the court to allow the appellant's case to be re-opened, so that he could call East as an additional witness under section 268(1) of the 1995 Act. Instead he had attempted to rely on evidence as to the police statement made by East which was inadmissible.
Counsel who represented the appellant at the trial received intimation of the ground of appeal, and provided a note dated 16 November 1998 which gave his comments upon it.
In Anderson v H. M. Advocate 1996 S.C.C.R. 114 the Lord Justice General (Hope), giving the Opinion of the court, stated at pages 131F-132A:
Earlier in its Opinion the court referred to the tension between the principles which give a wide discretion to counsel to conduct a defence as he thinks fit and the duty of a court of criminal appeal to correct a miscarriage of justice on the ground that the accused did not receive a fair trial.
In light of our consideration of the material in the affidavit we are not satisfied that there was any failure to put the appellant's defence before the jury. All that can be said is that the erroneous understanding of counsel may have led to his not leading evidence which merely added to evidence in support of the appellant's defence which was already before the jury. It was, moreover, evidence which was open to significant criticism as to its credibility.
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