When a co-accused changes plea to guilty during a joint trial, the preferable course is to take the plea in the absence of the jury and direct the jury not to speculate about the co-accused's absence. However, taking the plea before the jury will not necessarily cause a miscarriage of justice provided the trial judge gives comprehensive directions that the plea is not to be taken into account against the remaining accused. The 'empty shell' test from R v Zaiter is the appropriate approach for determining whether evidence constitutes an indispensable intermediate fact requiring a Shepherd direction.
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