A trial judge's comment that the accused's failure to give evidence 'did nothing to explain, rebut or contradict the evidence presented by the prosecution' is unnecessary and undesirable but does not constitute a miscarriage of justice where the summing up as a whole contains orthodox directions on the right to silence. The Bathurst direction referring to the jury being 'deprived of the opportunity of hearing the accused's version tested in cross-examination' should only be used where unsworn exculpatory statements of the accused are in evidence at trial, not where there is a complete absence of the accused's version. A direction that silence cannot be used to 'fill gaps in the evidence' is equivalent to a 'makeweight' direction.
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