In a judge alone trial where the accused bears the onus of establishing a partial defence (such as substantial impairment under s 23A of the Crimes Act 1900 (NSW)), the trial judge must expressly warn herself that no adverse inference can be drawn from the accused's failure to give evidence. A general right to silence direction will not necessarily satisfy this requirement; whether it does depends on the context. The question of what direction should be given regarding the weight to be accorded to pre-trial accounts of an accused who does not give evidence was left open for future determination.
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