Cross-examination of an accused suggesting he has changed his story, based on differences between his evidence and matters put by his counsel to Crown witnesses, is not per se impermissible but requires caution and circumspection. Such questions must satisfy the substantial probative value requirement of ss 103 and 104 of the Evidence Act 1995 (NSW) — questions on topics irrelevant to the charge that are relevant only to credibility will generally be inadmissible. Where such cross-examination occurs, the trial judge must direct the jury on alternate explanations for the inconsistency, including possible error or oversight by counsel. The rule in Browne v Dunn does not require cross-examination on every aspect of a witness's evidence, however inconsequential.
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