A trial judge cannot give a majority verdict direction under s 55F(2)(b) of the Jury Act 1977 (NSW) where the foreperson's sworn evidence indicates the jury is hopeful of reaching unanimity. The examination on oath must produce evidence consistent with the unlikelihood of unanimity before the majority verdict direction can be given. The trial judge cannot delegate this assessment to the jury by directing them to return a majority verdict 'if it becomes clear' they cannot reach unanimity. Failure to comply with these prerequisites constitutes a miscarriage of justice for which the proviso is not available.
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