A trial judge who assumes a prosecutorial role by cross-examining an unrepresented accused on the weaknesses of his defence, and who delivers a summing up that frames the jury's task as choosing between competing versions and repeatedly emphasises whether the accused has lied, produces a miscarriage of justice that may not be cured by the proviso even where the Crown case is strong. The Weiss exception for significant denial of procedural fairness may apply, and in credibility cases the appellate court may be unable to be satisfied of guilt beyond reasonable doubt without having seen the witnesses.
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