Section 161 of the Criminal Procedure Act (NSW), which relieves a trial judge of the obligation to summarise evidence, does not relieve the judge of the duty to put the defence case to the jury, including making sufficient references to the evidence to enable the jury to understand the defence case. A failure to put the defence case constitutes a significant denial of procedural fairness that precludes application of the proviso to s 6(1) of the Criminal Appeal Act. Where the defence relies on an alternative innocent explanation for apparently incriminating evidence, the trial judge must put that explanation to the jury with reference to supporting evidence, even where defence counsel has already done so in closing address.
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