The Court of Criminal Appeal may dismiss an appeal under s 5AA(4) of the Criminal Appeal Act 1912 (NSW) despite established error, where no substantial miscarriage of justice has actually occurred, applying the common law rule recognised in R v Conway. The absence of an express proviso in s 5AA(4) (unlike s 6(1)) does not preclude this power. Departures from EPA sampling protocols do not automatically render testing results inadmissible where expert evidence explains why the departures did not affect the reliability of the results.
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