In a judge-alone trial, the obligation under s 133(3) of the Criminal Procedure Act 1986 (NSW) to take a s 165B warning into account only arises where an application for such a direction has been made and the judge is satisfied of significant forensic disadvantage. Defence counsel's failure to seek a s 165B direction will not found a ground of appeal where the trial judge was otherwise cognisant of the forensic disadvantages of delay. The significant forensic disadvantage must be real and not speculative, and the burden of demonstrating it lies on the applicant.
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