Where a trial judge misdirects a jury on mistake of fact by applying s 24 of the Criminal Code 1899 (Qld) instead of s 9.1 of the Criminal Code Act 1995 (Cth) for a Commonwealth offence, the proviso in s 668E(1A) may apply if the appellate court is independently satisfied beyond reasonable doubt of the appellant's guilt. The Jones v Dunkel principle has limited but not zero application in criminal proceedings where the accused elects to give evidence and call witnesses but fails to call a witness who could provide critical corroboration. The question whether the fault element for non-disclosure under s 269 of the Bankruptcy Act 1966 (Cth) is intention or recklessness was left open.
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