A trial judge's direction that the jury may take into account the accused's failure to deny or contradict Crown evidence when assessing its weight contravenes s 20(2) of the Evidence Act 1995 (NSW), following Azzopardi v R. However, the proviso may be applied where the Crown case is overwhelming and conviction was inevitable, particularly in joint criminal enterprise cases where the misdirected evidence relates to a non-essential element of the offence. The s 165 unreliability warning is not triggered merely because a witness's trial evidence differs from prior statements; the threshold requires something more than ordinary inconsistencies attributable to the passage of time or differing perspectives.
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