A failure to direct the jury on the right to silence is a process error that, if established, would preclude application of the proviso under s 30(4) of the Criminal Appeals Act 2004 (WA). However, where the Crown does not use 'no comment' answers adversely and defence counsel makes an objectively reasonable forensic decision not to seek such a direction, no miscarriage of justice is established. Evidence of unexplained cash is admissible to rebut an accused's character where the accused has put their character in issue by portraying themselves as completely candid.
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