The reasoning in Weiss v The Queen applies to the civil proviso in Pt 51 r 53, requiring the appellate court to independently determine whether imputations were conveyed rather than predicting what a jury would have done. The right to jury determination under s 7A of the Defamation Act 1974 is qualified by the possibility of appellate intervention, and deprivation of that right is not itself a substantial wrong or miscarriage. A trial judge who tells a jury it would be 'unreasonable' to find otherwise than the judge's view, or that it is the judge's 'duty' to express that view, risks overawing the jury and exceeding the permissible limits of judicial comment on facts.
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