When applying the proviso to s.568(1) of the Crimes Act 1958 (Vic), the appellate court must independently assess the whole record and determine whether the accused was proved guilty beyond reasonable doubt, rather than asking what the jury would have done absent the error. Where wrongly admitted evidence is an unimportant side issue in the context of the whole trial, the proviso may be applied. The scope of a remitter under s.37 of the Judiciary Act 1903 (Cth) is limited to the issue remitted and does not permit the appellate court to revisit other grounds not the subject of the High Court appeal.
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