On a second or subsequent appeal under s 326D of the Criminal Procedure Act 2009 (Vic), 'substantial miscarriage of justice' is not limited to the [name withheld]/[name withheld] test of whether fresh evidence raises a significant possibility of acquittal. It also encompasses cases where fresh evidence establishes procedural irregularity depriving the accused of a fair trial, applying the [name withheld] framework. Non-disclosure of material evidence bearing on the reliability of prosecution evidence on a central issue may constitute a serious departure from the prescribed processes for trial going to the root of the proceedings. Where convictions are quashed on a second appeal, the strength of the remaining Crown case and the public interest in prosecution of serious offences are relevant to whether a retrial or acquittal should be ordered.
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