A trial judge who describes a defence to the jury but immediately dismantles it with personal comment, rather than reciting the Crown's submissions, engages in advocacy contrary to McKell v The Queen and causes a miscarriage of justice. Where defence counsel fails to put an available defence, no miscarriage results if the Crown and trial judge sufficiently raise the defence for the jury's consideration. The Carey defence (possession for purpose of returning drugs to owner) remains available under s 29(a) of the Drug Misuse and Trafficking Act 1985 (NSW).
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