A trial judge's failure to specifically correct a prosecutor's improper comments about an accused's exercise of the right to silence, where the judge gives generic directions about the right to silence, constitutes an error of law but is not a 'fundamental' departure from the essential requirements of a fair trial precluding application of the proviso under s 30(4) of the Criminal Appeals Act 2004 (WA). The proviso may be applied where the appellate court is independently satisfied beyond reasonable doubt of the accused's guilt on the whole of the evidence. Generic directions about the right to silence, without specific reference to the prosecutor's improper comments, are insufficient to redress the prejudice caused.
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