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requires the Court of Appeal to allow an appeal against conviction if the appellant satisfies the court that—
the verdict of the jury is unreasonable or cannot be supported having regard to the evidence; or
as the result of an error or an irregularity in, or in relation to, the trial there has been a substantial miscarriage of justice; or
for any other reason there has been a substantial miscarriage of justice.
Subclause (2) requires the Court of Appeal to dismiss the appeal in any other case. This provision has been substantially changed as a result of a review of the grounds of appeal against conviction and the proviso currently in section 568(1) of the Crimes Act 1958. The grounds and proviso are drafted as a single subsection, but for ease of discussion, they can be separated into the following separate components: The Court of Appeal on any such appeal against conviction shall allow the appeal if it thinks— [First limb] that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence; or [Second limb] that the judgment of the court before which the appellant was convicted should be set aside on the ground of a wrong decision on a question of law; or [Third limb] that on any ground there was a miscarriage of justice and— in any other case shall dismiss the appeal— ["The proviso"] Provided that the Court of Appeal may, notwithstanding that it is of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred. Prior to the High Court decision in Weiss v R (2005) 224 CLR 300, the Court of Appeal applied two tests to decide if the proviso applied after a wrong decision or miscarriage had been found under the second or third limb. First, whether the appellant had lost a chance of acquittal that was fairly open or, secondly, whether the wrong decision or miscarriage amounted a fundamental error, constituting a "serious breach of the presuppositions of a trial". The approach taken to the proviso was altered by the High Court decision in Weiss, in which the High Court held that the proviso applied where the Court of Appeal was itself satisfied (on the trial record) that the appellant was guilty beyond a reasonable doubt. In Gassy v The Queen [2008] HCA 18 the High Court confirmed that there remained a number of ways in which the Court of Appeal could determine what constituted a "substantial miscarriage of justice".