A breach of s 617 of the Criminal Code 1899 (Qld) requiring the trial to take place in the presence of the accused does not automatically constitute a fundamental error precluding the application of the proviso to s 668E. The extent of the breach and its implications for the fairness of the trial must be assessed to determine whether it goes to the root of the proceedings. A minor and momentary breach, particularly where defence counsel acceded to the procedure, may be cured by the proviso where no substantial miscarriage of justice actually occurred.
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