A trial judge's comments during trial and in the summing up that illustrate a judicial view strongly adverse to the defence, particularly where the accused is unrepresented, may constitute a miscarriage of justice not cured by general directions to the jury about their function. Comments made to the jury in the absence of the accused are particularly inappropriate. The proviso to s 6(1) of the Criminal Appeal Act 1912 (NSW) does not apply to fundamental errors at trial.
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