Where an accused is unrepresented at trial, the trial judge is obliged to raise the potential applicability of s 165 of the Evidence Act 2008 (Vic) with the accused, as part of the duty to provide such information as is necessary for a fair trial. Serious departures from prescribed trial processes — including failure to give directions on co-offenders' guilty pleas, failure to raise s 165 warnings, and failure to comply with coincidence notice requirements — can constitute a substantial miscarriage of justice under s 276(1)(b) regardless of the strength of the Crown case. The 'inevitability' test under Baini imposes a more demanding standard on the Crown than the former proviso as interpreted in Weiss.
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