The test for miscarriage of justice in joint trial cases remains as stated in Webb v The Queen: whether the accused has lost a chance which was fairly open to him of being acquitted. This test applies on a post-conviction appeal irrespective of whether the discretion to order separate trials was properly exercised. The High Court's reformulation of the proviso test in Weiss v The Queen has not altered the Webb test for joint trial miscarriage. Where inadmissible evidence is tendered against a co-accused, the strength of the remaining Crown case and the adequacy of judicial directions are critical factors in determining whether there was a real risk the jury would impermissibly use the evidence.
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