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enables the trial judge or, with the leave of the trial judge, a party to comment on departures outlined in clause 233(1) (introduction of evidence not previously disclosed) and any failure by a party to comply with a requirement of this Chapter or an order made under this Chapter. The trial judge may grant leave to a party to comment on a departure or failure only if satisfied that the proposed comment is relevant and is not likely to produce a miscarriage of justice and subject to the following restrictions. A comment on a departure must not suggest that an inference of guilt may be drawn from the departure except in those circumstances in which an inference of guilt might be drawn before the commencement of this clause from a lie told by an accused. A comment on a failure must not—
suggest that an inference of guilt may be drawn from the failure except in those circumstances in which an inference of guilt might be drawn from the failure of an accused to adduce evidence from a particular witness; or
suggest that the failure may be taken into account in considering the probative value of the prosecution evidence except in those circumstances in which a failure of an accused to give evidence or adduce evidence from a particular witness might be taken into account for that purpose.
In section 16 of the Crimes (Criminal Trials) Act 1999, the circumstances referred to in the above bullet points are limited to the point in before the commencement of the section in 1999. This clause does not contain that, or any similar, limitation. The questions which the court must answer are essentially evidential and the answer should be determined by the law of evidence as it exists at the time, particularly given that the Evidence Act 2008 is intended to commence at the same time as this Bill.