The proviso to s 6(1) of the Criminal Appeal Act 1912 (NSW) will less readily be applied where the prosecution case depends heavily on the credibility of witnesses whose evidence the law recognises may be unreliable (such as accomplice witnesses who received substantial sentencing discounts or indemnities). A combination of trial errors — even where each individually might not warrant setting aside a conviction — may cumulatively constitute a substantial miscarriage of justice in such cases. The case also confirms that evidence relating to one count in a multi-count indictment is cross-admissible where the counts form part of a single joint criminal enterprise, without engaging tendency reasoning under s 97 of the Evidence Act 1995 (NSW). The majority and dissent disagreed on whether the specific errors in this case warranted application of the proviso, leaving the question of the cumulative effect of multiple errors in credibility-dependent cases as a matter of judgment for the appellate court.
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