On an appeal against conviction under s 5(1) of the Criminal Appeal Act 1912 (NSW) where the ground is that a miscarriage of justice was occasioned by a trial judge's refusal to discharge the jury, the applicable principles are those in Crofts v The Queen, not those in House v The King. The statements to the contrary in Curran v R at [29], as endorsed in Hughes v R and Wilson v R, do not accurately state the law. Not every piece of prejudicial evidence constitutes an 'irregularity'; responsive and relevant evidence given in answer to a non-leading question is difficult to characterise as an irregularity merely because it is potentially prejudicial. The question of whether Crofts involves some conflation of the 'miscarriage of justice' and 'substantial miscarriage of justice' tests under s 6(1) was left open.
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