In rape trials where consent and mens rea are in issue, the trial judge must relate directions under s 37(1) of the Crimes Act 1958 (Vic) to the relevant evidentiary facts placed in issue in the proceeding — not merely to the elements of the offence. 'Facts in issue' encompasses circumstantial evidence bearing on the central issues of consent and the accused's awareness. A failure to do so may constitute an irregularity amounting to a miscarriage of justice, and the proviso will not save the conviction where the Crown cannot demonstrate the accused was not deprived of a fair chance of acquittal.
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