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French CJ

The term "miscarriage of justice" appears in a number of Commonwealth, State and Territory statutes, predominantly in relation to the disposition of criminal appeals. It is convenient to begin with its ordinary meaning before turning to relevant authorities.

In the second edition of the Oxford English Dictionary "miscarriage of justice" is defined as "a failure of a court to attain the ends of justice". Applied to a system of laws the ends of justice will incorporate normative requirements relating to the way in which laws are applied and dispositions made under them. The conviction of an innocent person would be recognised by all observers as a miscarriage of justice. But the concept goes beyond that, particularly in a criminal justice system that is committed to fair process. One general definition from a perspective external to the system is :

"A miscarriage occurs as follows: whenever suspects or defendants or convicts are treated by the State in breach of their rights, whether because of, first, deficient processes or, second, the laws which are applied to them or, third, because there is no factual justification for the applied treatment or punishment; fourth, whenever suspects or defendants or convicts are treated adversely by the State to a disproportionate extent in comparison with the need to protect the rights of others; fifth, whenever the rights of others are not effectively or proportionately protected or vindicated by State action against wrongdoers or, sixth, by State law itself."

To the extent that that definition incorporates perceived deficiencies in the law it runs wider than any definition that could be applied in a statutory setting. Within the statutory framework for criminal appeals under consideration in this case, the range of events, acts or omissions which can constitute a miscarriage of justice will depend upon the necessary conditions of "justice" in the criminal justice system. One class of necessary condition can be gathered under the general rubric of judicial process. A broader concept, which embraces but is not limited to the trial process, is that of "due process of law".