A trial judge's complaint evidence directions under s 34M(4) of the Evidence Act 1929 (SA) need not use the precise statutory phrase 'degree of' consistency, provided the directions, read in context of the entire summing up, convey to the jury that assessing consistency is an evaluative process. Where a key potential witness is available but defence counsel makes a forensic decision not to call them, this weighs against a finding of significant forensic disadvantage under s 34CB. Where defence counsel has addressed the jury on forensic disadvantage in closing and the summing up immediately follows, the proviso may apply to the absence of a formal forensic disadvantage direction.
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