The reasoning in Weiss v The Queen on the criminal proviso applies to the civil 'substantial wrong or miscarriage' test under Supreme Court Rules Pt 51 r 23: the appellate court must itself decide whether a substantial miscarriage has actually occurred, rather than speculating about what the jury might have done. In defamation proceedings under s 7A, the nature and character of a publication (including whether it is 'junk mail' or a serious community newsletter) is relevant to whether imputations are conveyed and whether they are defamatory, consistently with Bennette v Cohen. However, the question of whether this submission properly goes to Question 1 (conveyance) or Question 2 (defamatory meaning) under the s 7A procedure remains unresolved.
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