A defendant in criminal proceedings is 'available' to give evidence within the meaning of s 66(1) of the Evidence Act 1995 as part of his or her own case, even though not competent to give evidence for the prosecution, and accordingly s 66 (not s 65) governs the admissibility of hearsay representations made by the defendant. A deliberate Crown decision to call a witness and refrain from questioning on issues where unfavourable evidence is anticipated, followed by an application under s 38 after unfavourable evidence emerges in defence cross-examination, does not of itself constitute an abuse of s 38 or unfairness to the accused. The proviso under s 6(1) of the Criminal Appeal Act 1912 may be applied where multiple trial errors are identified but the Crown case is overwhelming and the errors, individually or cumulatively, did not deprive the appellant of a chance of acquittal that was fairly open.
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