When determining whether to leave the defence of duress to the jury under s 10.2 of the Criminal Code Act 1995 (Cth), the trial judge must apply the evidential burden in s 13.3(6), which requires only 'slender evidence' that 'suggests a reasonable possibility' of the existence of duress. The judge must take the evidence at its most favourable to the accused and must not make evaluative judgments about the evidence or draw inferences favourable to the Crown, as doing so trespasses on the jury's function. Where duress is the primary issue at trial and is wrongly withdrawn from the jury, the proviso will not apply because the credibility assessments required are quintessentially jury questions that the appellate court cannot perform.
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