Where the prosecution case is that the accused inserted a knife into the complainant's body during a struggle, the relevant act for the purposes of s 23(1)(a) of the Criminal Code (Qld) is the insertion of the knife, not the mere holding of the knife. Directions that suggest the act of holding the knife is the relevant act constitute a misdirection resulting in a miscarriage of justice. Where evidence is led that the accused declined a formal police interview, a direction must be given that the exercise of the right to silence cannot be used adversely against the accused.
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