The Azzopardi direction (warning the jury that the accused's in-court silence is not evidence against them) is not mandatory; whether it must be given depends on all the circumstances including the directions actually given, the conduct of the trial, and whether a forensic advantage in not seeking the direction can objectively be discerned. Where the trial judge has given strong directions on onus of proof and directed the jury to treat the accused's ERISP denials as evidence to be considered alongside the Crown case, those directions may be sufficient to obviate the need for a separate Azzopardi direction. However, the dissent (Adamson J) identifies that where the complainant's evidence was pre-recorded and cross-examined but the accused's version was only in ERISP form (not subject to cross-examination), the disparity may create a substantial risk that the jury would misuse the accused's in-court silence.
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