The only consequence of the jury positively disbelieving the accused's evidence at trial is that the evidence is not taken into account when the jury considers whether the prosecution has discharged its burden of proof. A direction that disbelief of the accused is a matter to take into account in assessing guilt is a fundamental misdirection to which the proviso cannot apply. The question whether omissions from out of court statements can constitute implied prior inconsistent statements requiring a Driscoll warning was left open.
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