The dictum of two High Court justices in Dyers v R (2002) that a trial judge should not generally direct a jury that the prosecution would be expected to have called particular witnesses did not change the longstanding NSW practice permitting an accused to seek a Jones v Dunkel direction about the Crown's failure to call a witness. The proviso to s 6(1) of the Criminal Appeal Act 1912 applies in identification cases on the same basis as other cases: whether the appellant lost a real chance of acquittal, not some stricter standard. There is no universal rule requiring a specific warning about over-confidence in identification witnesses.
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