Where transcript pages containing discussions between the trial judge and counsel in the absence of the jury are inadvertently provided to the jury, and those discussions relate to the very issues the jury must determine, the irregularity is more likely to constitute a miscarriage of justice than cases involving generalised extraneous material. The court will apply the Marsland test: whether it can be satisfied the irregularity has not affected the verdict and the jury would have returned the same verdict absent the irregularity.
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