A trial judge may comment adversely, even in strong terms, on a defence argument that was not put to witnesses in cross-examination, but cannot withdraw the factual issue from the jury's consideration. Non-compliance with the rule in Browne v Dunn does not relieve the prosecution of its onus of proof or entitle the judge to treat an ingredient of the charge as proved. Where the Crown relies on similar fact evidence and probability reasoning, and there is evidence raising a possibility of innocent infection, the judge must direct the jury that they cannot reason from the improbability of coincidence unless first satisfied beyond reasonable doubt that there was no innocent infection.
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