The case confirms that the test for miscarriage of justice based on alleged incompetence of counsel requires an objective demonstration that the appellant lost a chance of acquittal that was fairly open, and that a significant possibility must be shown that the acts complained of affected the outcome of the trial. The mere unavailability of senior counsel and the substitution of junior counsel with experience in a different area of law does not, without more, establish a miscarriage of justice. The Jones v Dunkel rule has no application where the failure to call a witness is satisfactorily explained, such as where the witness refused to provide a statement to police.
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