A misdirection about an accused's failure to give evidence that contravenes s 20(2) of the Evidence Act 1995 (NSW), as interpreted in RPS v The Queen, does not necessarily constitute a fundamental error precluding application of the proviso to s 6(1) of the Criminal Appeal Act 1912 (NSW). The significance of the misdirection must be assessed in the context of the trial, including the strength of the prosecution case and whether the matters addressed in the erroneous directions were genuinely in dispute. Where the only issue is dangerous driving assessed objectively and the bare facts of the collision are overwhelming, the proviso may be applied.
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