The proviso in s 30(4) of the Criminal Appeals Act 2004 (WA) can be applied even where the trial error relates to evidence bearing on the accused's credibility, provided the appellate court can be satisfied beyond reasonable doubt of guilt on the objective evidence in the trial record. The natural limitations of an appellate court in assessing credibility do not preclude application of the proviso where the prosecution case is based substantially on objective circumstantial evidence rather than turning on a contest of credibility. The power under s 40 of the Criminal Appeals Act to admit additional evidence on appeal is not limited to evidence relevant to a ground of appeal but extends to evidence relevant to any issue before the court, including the proviso question.
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