An inevitable guilty verdict on the properly admitted evidence is a necessary but not always sufficient condition for applying the proviso under s 6(1) of the Criminal Appeal Act 1912 (NSW). Where the failure to give a propensity direction was not a deliberate forensic decision, the proviso may still apply if the error was not a serious departure from the essential requirements of the law — particularly where much of the impugned evidence was admitted without objection, neither counsel sought the direction, and the defence itself relied on propensity reasoning against a co-accused. The Crown bears a heavy burden when relying on the proviso and should provide detailed assistance to the appellate court in explaining why a guilty verdict was inevitable.
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