Where an accused's counsel makes deliberate forensic decisions at a joint trial — including not objecting to the co-accused's evidence and not applying for a separate trial — in order to gain a forensic advantage from the co-accused's defence, the accused cannot on appeal complain that the co-accused's conduct of the trial caused unfairness. The court will examine what would have occurred at a separate trial to assess whether any miscarriage of justice resulted. A sentencing judge's failure to account for pre-sentence custody when fixing the commencement date of a federal sentence is an arithmetical error correctable on appeal by backdating the sentence.
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