Section 66 of the Evidence Act 2008 (Vic) applies to prior representations made by an accused person, not only to complainant statements; it is a general provision. However, the existence of admissible evidence that was not adduced at trial does not of itself establish a miscarriage of justice where trial counsel's decision not to adduce the evidence was a legitimate forensic choice, particularly where the prior statements contained significant discrepancies from the trial evidence that would have provided ammunition for cross-examination. The substantial miscarriage of justice test from Baini requires the appellate court to assess whether, absent the error, the jury acting reasonably could not properly have been left with a reasonable doubt.
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