When exercising the sentencing discretion afresh following identified error, an appellate court may in 'exceptional cases' make a different factual finding to that made by the sentencing judge, provided procedural fairness is extended to both parties. The Crown is not required to show House v The King error or Warren v Coombes error before the Court will make a different finding; the relevant test is simply whether the Court is satisfied beyond reasonable doubt of the fact in question. A disclosure to the jury that the accused is in custody does not ordinarily constitute a miscarriage of justice, given that custody is an ordinary aspect of the criminal justice process and an appropriate direction will generally cure any prejudice.
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