An accused alleging miscarriage of justice based on trial counsel's refusal to call the accused as a witness bears the onus of establishing on the balance of probabilities that counsel failed or refused to give effect to the accused's instruction to give evidence. Where the evidence is word against word between the accused and trial counsel, the court may prefer counsel's evidence based on the unlikelihood that an experienced practitioner would fail to give effect to an instruction on a fundamental matter, and on objective considerations such as the accused's failure to protest in court.
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