Page:Cesan v The Queen.pdf/34

French CJ

Kirby J, enunciating an individual rights-based approach, stated, inter alia, that provision of such rights is not necessarily confined to cases where their deprivation results in adverse consequences that might not otherwise have occurred. In this context he referred to the judgment of the Ontario Court of Appeal in R v Joanisse where Doherty JA said:

"A reliable verdict may still be the product of a miscarriage of justice if the process through which that verdict was reached was unfair." (citations omitted)

Callinan and Heydon JJ agreed that the appeal should be dismissed notwithstanding counsel's incompetence on the basis that the appellant was not deprived of a chance of acquittal.

The case of incompetence of counsel which was considered in Nudd does not fall within the same category of defect of process as a failure of the judicial function. Nevertheless the approach taken in that case can be generalised to the identification of miscarriages of justice flowing from failure of process and to the application of the proviso.

There is support for the proposition that a failure of the judicial process may be so fundamental as to result in a trial which is incurably flawed. In Katsuno v The Queen Gaudron, Gummow and Callinan JJ referred to Maher v The Queen and Johns (Roger) v The Queen which they said "[a]t one level" concerned failures to comply with mandatory legislative provisions governing the constitution and authority of the jury. Their Honours went on, however, to say :