A prosecutor who opens the Crown case on the basis of a theory not supported by the evidence, and fails to resile from that theory when the evidence does not materialise, may cause a miscarriage of justice warranting the quashing of the conviction. The expression 'unsafe and unsatisfactory' may continue to be used as a ground of appeal in Federal Court criminal appeals from the ACT, provided the appellant identifies with precision the basis of the claimed miscarriage of justice. Where a conviction is quashed for irregularity but the evidence was sufficiently probative on an alternative basis to warrant conviction, a new trial rather than acquittal is the appropriate order.
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