The guiding principles from Weiss v The Queen, Gassy v The Queen and Cesan v The Queen regarding the substantial miscarriage of justice test apply to s 276(1)(b) of the Criminal Procedure Act 2009 (Vic), notwithstanding the shift in onus from the Crown (under the former proviso) to the appellant. On a Giretti count of trafficking in a commercial quantity, the trial judge must direct the jury that the intention to traffic a commercial quantity must have been present from the outset of the trafficking business; failure to do so will result in a substantial miscarriage of justice where the aggregate quantities do not greatly exceed the threshold and the timing of intention formation is critical.
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