Where the Crown seeks to rely on a breach of the rule in Browne v Dunn to attack the accused's credit, the prosecutor must first cross-examine the accused about the matters relied upon; the trial judge must resolve whether the comment is appropriate before it is made to the jury; and if the comment is permitted, a judicial warning must be given explaining possible innocent explanations for counsel's omission. Written materials provided to a jury cannot substitute for adequate oral directions summarising the evidence, identifying the issues, and relating the evidence to those issues. An instruction to the jury to consult written materials only if they have 'a problem' creates an unacceptable risk that the jury will rely solely on an inadequate oral charge.
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