A trial judge who, in the absence of the jury, effectively cross-examines the prosecutor into conceding that a different and larger case should be pursued, and then rules that the Crown should be permitted to rely on the expanded case, engages in excessive intervention that constitutes a miscarriage of justice — even where the intervention is not observed by the jury and the judge is actuated by the best of motives. The distinction between permissibly drawing a formal gap in the Crown case to the prosecutor's attention and impermissibly constructing a new case for the Crown is critical.
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