A trial judge's systematic encouragement of jury questioning of witnesses, including establishing a process whereby the jury retires to formulate questions at the conclusion of each witness's evidence, fundamentally alters the nature of a criminal trial and constitutes a miscarriage of justice. The jury has no investigative or inquisitorial role. Where such a procedural error goes to the root of the proceedings, the proviso to s 6(1) of the Criminal Appeal Act 1912 (NSW) is not engaged and the appellate court need not examine the entire trial record to form an opinion on guilt.
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