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Abstract from

The Criminal Proviso: A Case for Reform?

Stephen J Odgers SC is a member of the New South Wales Bar and Adjunct Professor of Law, University of Sydney, Australia.

Where a court of appeal is satisfied that a miscarriage of justice occurred at a criminal trial, it can nevertheless dismiss the appeal if it thinks that no ‘substantial’ miscarriage of justice in fact occurred. This is referred to as ‘the proviso’ in criminal appeals. This article examines a number of conceptual and policy issues arising from the operation of the proviso and examines the decision in Weiss where the High Court reformulated the proper approach that trial judges should take to the application of the proviso. The author argues for reform of the current wording of the proviso and contrasts the position in other western countries.

(2008) 26 No 1 Law in Context 103


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