A direction about the accused's right to silence should be given when evidence of its exercise is adduced and in the summing up, but the failure to do so does not necessarily occasion a miscarriage of justice, particularly where trial counsel did not seek the direction and the accused gave evidence at trial. Section 165B(5) of the Evidence Act 1995 (NSW) prohibits a trial judge from giving a forensic disadvantage direction on the basis of delay unless a party has applied for it.
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