A trial judge's intervention in defence counsel's closing address to characterise a proper submission on the standard of proof as erroneous may cause a miscarriage of justice, particularly where the subsequent summing-up does not adequately dispel the resulting confusion. Warnings under s 165(1)(e) of the Evidence Act 1995 about the potential unreliability of prison informers are generally inappropriate for defence witnesses, because the aspect of the witness's status giving rise to unreliability — the potential to falsely implicate the accused — ceases to exist when the witness gives evidence for the defence. A trial judge should not force defence counsel to put questions to a witness to comply with the rule in Browne v Dunn where no contravention of that rule has occurred.
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