Evidence tendered during cross-examination of the accused that constitutes rebuttal evidence (such as a tape recording proving prior inconsistent statements) is subject to the same exceptional circumstances test as rebuttal evidence called after the close of the defence case; the trial judge must exercise a discretion as to its admission. Where a failure to put a matter to a witness in cross-examination is attributable to counsel's error rather than the accused's instructions, the rule in Browne v Dunn cannot be used to impugn the accused's credibility, and a trial judge who permits or repeats such a submission without correction commits a serious error. A trial judge is not obliged to repeat all submissions of counsel in the summing up, and repeating an erroneous prosecution submission without correction may vitiate the conviction.
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