A trial judge's comments on disputed facts during summing up that go beyond what is necessary for fair and accurate direction to the jury, and that effectively present the prosecution case more persuasively than the prosecutor did, will constitute a miscarriage of justice even where the comments are less extreme than those condemned in [name withheld] v The Queen. The rhetorical framing of questions suggesting how disputed facts should be resolved is a particularly powerful and impermissible form of judicial comment. The proviso cannot be applied where acceptance of the implied admission and related damage to the accused's credibility would have rendered conviction virtually inevitable.
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