Section 161 of the Criminal Procedure Act 1986 (NSW), which permits a trial judge to dispense with summarising evidence, does not relieve the judge of the obligation to put the defence case to the jury and instruct the jury on how the law applies to that case. A complete failure to put the defence case is a departure from the essential requirements of the law going to the root of the proceedings, warranting leave under Rule 4 of the Criminal Appeal Rules even where no objection was taken at trial.
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