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 process" . He described the emphasis upon those two aspects as fundamental and familiar and continued :

"Some irregularities 'may' involve no miscarriage of justice if the appellate court forms a certain opinion about the strength of the case against the appellant. The corollary of that proposition is that a defect in process may be of such a nature that its effect cannot be overcome by pointing to the strength of the prosecution case. It is impossible to state exhaustively, or to define categorically, the circumstances in which such a defect will occur."

One such circumstance would arise where, as a result of the failure of process, the appellate court is deprived of the capacity justly to assess the strength of the case against the appellant. Gleeson CJ said :

"There may be other circumstances in which a departure from the requirements of a fair trial according to law is such that an appellate court will identify what occurred as a miscarriage of justice, without undertaking an assessment of the strength of the prosecution case. If there has been a failure to observe the conditions which are essential to a satisfactory trial and, as a result, it appears unjust or unsafe to allow a conviction to stand, then the appeal will be allowed."

Gummow and Hayne JJ saw "miscarriage of justice" in the common form of criminal appeal statute as encompassing a very wide variety of departures from the proper conduct of a trial. Their Honours said :

"Alleging that trial counsel was incompetent does not reveal what is said to be the miscarriage of justice. That requires consideration of what did or did not occur at the trial, of whether there was a material irregularity in the trial, and whether there was a significant possibility that the acts or omissions of which complaint is made affected the outcome of the trial." (footnotes omitted)