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French CJ

was guilty beyond reasonable doubt of the offence on which the impugned verdict has been reached. There may be cases, nevertheless, in which there is a process failure of such significance that, whatever the apparent weight of the evidence against the accused person, it cannot be said that there has not been a substantial miscarriage of justice. That may be because the process failure has deprived the appeal court of the capacity to assess whether the appellant may have lost a fair chance of an acquittal. That proposition is supported by dicta in Simic v The Queen.

In Simic, the Court said, in relation to s 568(1) of the Crimes Act 1958 (Vic):

"It is true that an appellant who claims that the trial judge misstated the facts to the jury must, if his appeal is to succeed, show that there was a miscarriage of justice. But since an accused person has a fundamental right to a fair trial, conducted in accordance with law, the fact that the case has not been properly presented to the jury will in some circumstances be enough to show that a miscarriage has occurred."

In TKWJ, McHugh J said that this dictum suggested that in some cases a material irregularity would itself constitute a miscarriage of justice. The context of the dictum suggested that in such a class of case there was no question of applying the proviso. However, the Court in Simic had also held that the onus was on the appellant to show that the misdirection which had occurred amounted to a miscarriage of justice. McHugh J concluded :

"Thus, Simic holds that, in most cases of misdirection on facts, the appellant has the onus of establishing a misdirection, that it might have affected the verdict and that, if it had not been made, the jury might have acquitted the appellant. In some undefined categories of cases, however, the irregularity may be so material that of itself it constitutes a miscarriage of justice without the need to consider its effect on the verdict."

In Nudd the Court was concerned with a contention that incompetency of trial counsel had caused a miscarriage of justice. Gleeson CJ observed that "the concepts of justice, and miscarriage of justice, bear two aspects: outcome and