The test in Weiss v The Queen for applying the proviso under the former s 568(1) of the Crimes Act 1958 applies mutatis mutandis to the determination of substantial miscarriage of justice under ss 276(1)(b) and (c) of the Criminal Procedure Act 2009 (Vic); the new provision did not change the substantive test. An erroneous direction on belief in consent will not result in a substantial miscarriage of justice where belief in consent was never a live issue at trial and the sole question was whether the complainant was asleep or awake.
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