A prosecutor may make adverse comments in closing address about the evidence of Crown witnesses without having specifically put the proposed criticism to the witnesses, provided the comments are peripheral to the prosecution case, the witnesses had opportunity to address the relevant issues during examination, and the prosecutor does not rely on the suggested dishonesty as proof of guilt. The NSW authorities requiring prosecutors to put criticisms to witnesses before attacking them in address (MRW, Kennedy, Teasdale) are distinguishable in Victoria where s 38 unfavourable witness provisions are unavailable. On retrial resulting in fewer and less serious convictions, the sentence on the first trial is prima facie the ceiling for sentencing on the second trial, and absence of remorse does not justify exceeding that ceiling.
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