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French CJ

antecedents and the consequences of that history for its application were considered by this Court in Weiss v The Queen. What that history revealed was that, before the introduction of the proviso by s 4(1) of the 1907 UK Act, a miscarriage of justice under the pre-existing Exchequer rule "was any departure from trial according to law, regardless of the nature or importance of that departure" (emphasis in original). When miscarriage of justice is seen in that light the word "substantial" has a function.

Weiss is authority for the proposition that the question whether an appellant may have lost a fair chance of acquittal is one to be considered under the proviso. It is not a necessary condition of the conclusion that there has been a "miscarriage of justice" as that term is used in "the dragnet ground" in s 6(1). Observations about the necessity of such a condition have been made in earlier cases and must be seen in the light of the approach taken by the whole Court in Weiss.

The earlier case of TKWJ v The Queen concerned a decision by defence counsel not to adduce evidence as to the good character of an accused nor to seek an advance ruling as to the admission of adverse evidence in response. There was no defect in the instructions to the jury nor in the procedures followed at trial. As Hayne J pointed out, the question of "miscarriage of justice" in that case directed attention to the result of the trial. Counsel's decision was significant only if it affected the result of the trial. The case is not authority for the proposition that the loss of a chance of acquittal is a necessary condition of the existence of a miscarriage of justice.

Weiss involved the admission of irrelevant but prejudicial evidence. In that context the Court in Weiss defined the task of criminal appeal courts applying the proviso. The task so defined requires their consideration of the whole of the record to reach an independent conclusion on whether the appellant