Where the Crown's failure to interview a witness before re-examination leads to the inadvertent eliciting of an off-tape admission that is inadmissible under s 464H(1) of the Crimes Act 1958 (Vic), the prosecutor's lack of preparation does not constitute 'exceptional circumstances' under s 464H(2) justifying reception of the evidence. In a credibility case where the outcome depends on the jury's assessment of conflicting accounts, the proviso to s 568(1) will not apply because the appellate court cannot be satisfied of guilt beyond reasonable doubt given the natural limitations of proceeding on the record. Where a miscarriage of justice was caused by avoidable Crown error, previous trials have also miscarried, and sentences have been substantially served, verdicts of acquittal rather than a retrial may be entered.
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