The duty to leave a defence to the jury under Pemble does not require a trial judge to direct on honest and reasonable mistake of fact as to consent where the evidence does not raise the issue, even where the complainant did not verbally refuse or physically resist. Where such an unnecessary direction is given over defence objection, the proviso may apply if the error would have had no significance in the jury's determinations and the evidence proves guilt beyond reasonable doubt. A prosecutor's address containing some improper statements will not cause a miscarriage of justice where the statements are effectively countered by defence counsel's address and the judge's directions.
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