Weiss v The Queen

HIGH COURT OF AUSTRALIAGLEESON CJ,GUMMOW, KIRBY, HAYNE, CALLINAN AND HEYDON JJBOHDAN WEISS   APPELLANTANDTHE QUEEN   RESPONDENTWeiss v The Queen[2005] HCA 8115 December 2005M50/2005ORDER1.Appeal allowed.2.Set aside the orders of the Court of Appeal of the Supreme Court of Victoria made on 5 May 2004.3.Remit the matter to the Court of Appeal of the Supreme Court of Victoria for its further consideration.On appeal from the Supreme Court of VictoriaRepresentation:P F Tehan QC with S T Russell and L C Carter for the appellant (instructed by Falcone and Adams)J D McArdle QC with C B Boyce for the respondent (instructed by Director of Public Prosecutions (Victoria)) Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.CATCHWORDSWeiss v The QueenCriminal Law – Appeal – Application of "proviso" that no substantial miscarriage of justice has actually occurred – Appellant convicted of murder – Evidence led at trial that should not have been adduced – Appellant appealed against conviction – Appeal court to review the whole case – Utility of reference to what a jury, the actual trial jury or a hypothetical reasonable jury, would have done.Words and phrases – "proviso", "substantial miscarriage of justice", "substantial miscarriage of justice has actually occurred".Crimes Act 1958 (Vic), s 568(1).GLEESON CJ, GUMMOW, KIRBY, HAYNE, CALLINAN AND HEYDON JJ. The important issue in this appeal concerns the operation of the proviso to s 568(1) of the Crimes Act 1958 (Vic) ("the Crimes Act") and how that provision is to...