The failure to give an Azzopardi direction (that no adverse inferences may be drawn from an accused's silence) is particularly likely to constitute a miscarriage of justice where: (a) the accused did not give evidence but called other witnesses; (b) the accused's own account was not before the jury in any form; and (c) the jury might have considered the accused was in a position to give relevant evidence about a contested factual issue. The proviso under s 668E(1A) cannot be applied where the case depends on credibility assessments the appellate court is unable to make.
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