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Abstract

This article examines the judicial test expounded by the High Court in M v The Queen (1994) 181 CLR 487, which intermediate appeal courts in Australia considering an application for a miscarriage of justice are currently governed by. It argues that the High Court in fact created two separate tests which can yield different results when applied to the same set of facts. In doing so, this article discusses the historical development of the judicial test, and its context within the statutory requirements of s668E of the Criminal Code Act 1899 (Qld). Using both judicial commentary and academic interpretation, this article then goes on to scrutinise the formulation of the judicial test from M v The Queen. Finally, the judicial test will be considered in the context of a petition for the exercise of the Royal Prerogative brought on behalf of Graham Stuart Stafford on the ground that there had been a miscarriage of justice, illustrating the two distinct outcomes of the test.

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