A trial judge must not leave an alternative basis of rape (failure to withdraw under s 38(2)(b)) to the jury where the Crown has not relied upon it in the presentment, opening, or final address, even if there is some evidence capable of supporting that basis. The absence of a motive to lie is 'entirely neutral' and a direction that rejection of a suggested motive is a factor to take into account in favour of the prosecution is a misdirection. Where a judge summarises evidence by contrasting the complainant's and accused's accounts on a count-by-count basis, a Liberato direction or equivalent is required to prevent the jury treating the case as a choice between witnesses.
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