Any departure from trial according to law constitutes a miscarriage of justice, but where defence counsel had an objectively rational forensic reason for not objecting, the miscarriage will not be substantial. The prosecution's duty to disclose prior convictions of witnesses is limited to convictions relevant to credit where, on a sensible appraisal, the witness's credit will be an issue. Prior inconsistent statements of a witness can only be proved by calling the maker of the statement after the witness has been recalled and asked about the statement under s 21 of the Evidence Act 1906 (WA). No Domican identification warning is required where the accused's presence at the scene is admitted by counsel. Whether the broad proposition that any departure, however trivial, constitutes a miscarriage of justice was left open by Owen JA and Jenkins J.
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