In a judge-alone trial, the failure to give a self-direction under s 21AW(2) of the Evidence Act 1977 (Qld) is an error of law amounting to a miscarriage of justice, but the proviso may be applied where the rationale for the direction (preventing jury speculation about special measures) has no application to an experienced trial judge, and where there is corroborative evidence. The hypothesis of indirect DNA transference must have an evidentiary foundation to be more than speculation. The proviso is more readily applied in judge-alone trials where the trial judge's detailed reasons reveal the path of reasoning, removing the 'natural limitation' that arises when the only gauge of sufficiency is a jury verdict.
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