A s 165 Evidence Act 1995 (NSW) warning about the potential unreliability of evidence given by a person criminally concerned in the events should not be given in respect of an accused's own evidence where the Crown does not rely on that evidence against a co-accused; such a warning is erroneous and has the capacity to deflect the jury from its fundamental task. An attempted clarification that merely recharacterises the warning as reflecting the Crown's submission, without withdrawing the substance of the warning, is insufficient to cure the error. Where the misdirection constitutes a fundamental departure from the essential requirements of the law, the proviso in s 6(1) of the Criminal Appeal Act 1912 (NSW) does not apply.
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