The principles governing incompetent representation as a ground for miscarriage of justice (Nudd v The Queen) apply equally to appeals against sentence as to appeals against conviction. Where counsel fails to adduce direct evidence of an offender's subjective circumstances — particularly an Aboriginal offender's disadvantaged background — and relies only on hearsay statements in psychological and pre-sentence reports despite judicial warnings about their limited weight, the sentencing process may miscarry. The Court of Criminal Appeal may remit the matter to the District Court for re-sentencing under s 12(2) of the Criminal Appeal Act 1912 (NSW) where further evidence needs to be tested.
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