Miscarriage of Justice for any other reason (Other Error)
Residual category - if for any other reason there has been a miscarriage of justice. A miscarriage of justice may occur where the court is not satisfied that a conviction is just (i.e. the consequence is unjust) OR where the process has departed from the essential requirements of a fair trial (i.e. the procedure is unjust) see Nudd [2006] HCA 9.
Examples:
- Judge's summing up on facts unbalanced or unfair
- Incompetence of defence counsel: the issue is the result of the irregularities, not the reason for them (the previously discussed flagrant incompetence test now defunct) (Nudd [2006] HCA 9 - found in this case that counsel was incompetent (as they failed to understand the elements of the offence, failed to obtain appropriate instructions fom the client, failed to object to inadmissible and highly prejudicial material going into evidence) but there was no miscarriage of justice). Assertions of incompetence may also be raised where counsel failed to request a voir dire (R v Carter [2002] QCA 431) or where they failed to challenge a witness by cross-examination (R v Sheppard [2005] QCA 235). Tactical decisions that are open will usually not amount to incompetence if there is a rational explanation for them (see R v Paddon [1995] 2 Qd R 387).
- Justice otherwise not seen to be done (Szabo [2000] QCA 194)
- New evidence has come to light
- Unfairness occasioned due to prejudicial publicity/delay/self-representation
- Prejudice due to inappropriate joinder of charges/accused
Examples:
- Judge's summing up on facts unbalanced or unfair
- Incompetence of defence counsel: the issue is the result of the irregularities, not the reason for them (the previously discussed flagrant incompetence test now defunct) (Nudd [2006] HCA 9 - found in this case that counsel was incompetent (as they failed to understand the elements of the offence, failed to obtain appropriate instructions fom the client, failed to object to inadmissible and highly prejudicial material going into evidence) but there was no miscarriage of justice). Assertions of incompetence may also be raised where counsel failed to request a voir dire (R v Carter [2002] QCA 431) or where they failed to challenge a witness by cross-examination (R v Sheppard [2005] QCA 235). Tactical decisions that are open will usually not amount to incompetence if there is a rational explanation for them (see R v Paddon [1995] 2 Qd R 387).
- Justice otherwise not seen to be done (Szabo [2000] QCA 194)
- New evidence has come to light
- Unfairness occasioned due to prejudicial publicity/delay/self-representation
- Prejudice due to inappropriate joinder of charges/accused