Under the Jury Directions Act 2013 (Vic), the trial judge's residual obligation to give unrequested directions under s 15 is narrower than the common law obligation: the judge must be positively satisfied that the direction is of such central importance that failure to give it would — not might — cause the trial to miscarry and vitiate any resulting conviction. Counsel's obligation under s 11 to request directions is continuing and has no temporal limitation; failure to request a direction is fatal to an appeal point unless s 15 applies. The right to silence and the prohibition against drawing adverse inferences from its exercise does not extend beyond the investigative context where a caution is administered; an accused's failure to report a death to family or police in circumstances where one would ordinarily expect such reporting may ground an inference of consciousness of guilt.
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