A trial judge who leaves to the jury a factual basis for conviction not advanced by the Crown, without prior notice to counsel and without affording the defence an opportunity to address the jury on that basis, causes procedural unfairness amounting to a miscarriage of justice. Under ss 164 and 165 of the Evidence Act 1995 (NSW), a 'dangerous to convict' direction is never required as a matter of duty in respect of prison informer evidence, though it may be given in the judge's discretion. The formulation 'dangerous to convict' is best avoided in favour of identifying the specific dangers of convicting on the evidence.
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