Multiple inconsistent misdirections on the mental element of an offence, at least two of which are unfavourable to the accused and appear in written directions given to the jury, will constitute a miscarriage of justice and preclude application of the proviso where the court cannot be satisfied the jury understood the mental element required for conviction. The miscarriage of justice inquiry and the proviso inquiry under s 6(1) of the Criminal Appeal Act 1912 (NSW) remain separate and discrete inquiries after Hofer v The Queen. Where an aggregate sentence includes a quashed count and the remaining counts are related to the quashed count requiring retrial, remittal for re-sentencing is appropriate.
The full text is available to signed-in members, including the 5 later cases that cite this judgment.
2 of the 5 citing cases carry a classified treatment. How each court treated it is available to signed-in members.