Under s 276 of the Criminal Procedure Act 2009 (Vic), the test for substantial miscarriage of justice where evidence has been wrongly admitted is whether conviction was 'inevitable' — meaning the jury acting reasonably on the properly admissible evidence and applying the correct onus and standard of proof would have been bound to convict. This differs from the Weiss approach of the appellate court's own independent assessment of guilt beyond reasonable doubt. The test is not whether the inadmissible evidence may have had an effect on the jury, but what the situation would have been if the inadmissible evidence had not been before the jury.
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