An appeal against conviction on the ground that the verdict was unreasonable or unsupported by the evidence is a question of fact, not a question of law alone, and therefore requires leave under s 5(1) of the Criminal Appeal Act 1912 (NSW). Where it is alleged there is no evidence of an element of an offence, that is a question of law alone; but where there is some evidence and the complaint is about its quality or weight, leave is required. The failure to call an unavailable witness does not constitute a miscarriage of justice, particularly where the witness had given contradictory accounts.
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