A prosecutor may refer to an accused's 'no comment' answers in a police interview to demonstrate the accused's awareness and capacity to exercise the right to silence, but must not invite adverse inferences from the exercise of that right. Where impermissible comment is made, a clear judicial direction to the jury not to draw adverse inferences may cure the prejudice, particularly where defence counsel does not seek further direction. Failure to object at trial to prosecutorial submissions or to the reopening of the Crown case engages Rule 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW).
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