Section 38 of the Evidence Act 1995 (NSW) permits questioning not only specifically directed to the matters in s 38(1), but also directed to establishing the probability of the factual state of affairs contended for by the questioning party or the improbability of the witness's evidence on those subjects, including questions going solely to credibility. Trial judges must consider ss 137 and 192 when granting s 38 leave, but failure to do so will not vitiate the conviction if proper consideration would have led to the same grant of leave. The procedure of requiring leave in small, precisely defined segments is not mandatory in all cases.
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