certain grounds. 56 These factors may include, but are not limited to grounds such as exceptional circumstances which have resulted in miscarriage of justice; or discovery of new and important matter or evidence which after the exercise of due diligence, was not within the applicant‟s knowledge or could not be produced by him or her at the time when the decision was made. 186. Now, turning to the issue whether the application of the doctrine of functus AC HP R officio by the Court of Appeal and its refusal to re-open the trial of Kobedi, was in the circumstance so fatal as to negate the right to fair trial in this case, the African Commission will formulate the issue for determination under this head as follows: does the refusal to order a retrial per se vitiate the holding of a fair trial in violation of Article 7 of the African Charter? 187. To arrive at its decision not to re-open the case in the light of the fresh evidence adduced by Counsel for Kodedi, the Court of Appeal had this to say: “On the second aspect on which the appellant seeks to lead medical evidence, the opinion of the medical experts that the deceased‟s wounds were caused by a high velocity bullet and not a 9mn pistol as used by the appellant is based on their assessments of the medical records of the post-mortem findings. They did not see the wounds. The evidence given at the trial by the pathologist called by the State is also his opinion again based on the same records, the doctor who conducted the post- mortem examination having died before the trial. The assessment of the trial doctor and the Appellant‟s specialists differs and while it may be the position that the specialists are more experienced than the trial doctor, their opinions are untested. It cannot be said that after due cross-examination their opinions would necessarily prevail and there is no doubt that this would affect the result of the trial. Their opinion remains what it is: mainly their opinion. It must be weighed against the direct evidence of the eye witnesses at the trial, which evidence was 56 See for example Article 133 of the Ghanaian Constitution, 1992 51