A trial judge's comments in a charge to the jury that suggest how the jury should resolve disputed questions of fact — particularly comments that foreclose a defence hypothesis, diminish the significance of contested evidence favourable to the defence, or endorse prosecution contentions on disputed matters — will occasion a substantial miscarriage of justice, applying McKell v The Queen. The cumulative effect of multiple such comments is assessed. Where defence counsel fails to seek a forensic disadvantage direction under s 39 of the Jury Directions Act 2015 (Vic), the failure to give such a direction will not ground an appeal unless there were substantial and compelling reasons for the judge to give it of their own motion under s 16.
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