The obligation to give a s 165 Evidence Act 1995 (NSW) warning is mandatory only where a party requests it under s 165(2); otherwise the need for a warning is discretionary, depending on the judge's assessment of whether reliability issues arise requiring a warning out of fairness to the accused. An ERISP tendered in evidence does not preclude a Weissensteiner direction, as an ERISP is not the equivalent of sworn evidence at trial. The requirement under OGD to refer to possible reasons for the accused's silence, while ordinarily necessary, is not absolute, and its omission must be assessed in context.
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