The rule in [name withheld] v [name withheld] does not require defence counsel to put to a prosecution witness matters that are not inconsistent with that witness's evidence, even where the defence evidence will add detail the witness might confirm or deny. It is contrary to the Crown's burden of proof to place such an obligation on the cross-examiner. Where a trial judge directs on recent invention arising from non-compliance with the rule, the direction must remind the jury that the reasoning is inferential and that they must exclude reasonable innocent explanations before drawing an adverse inference. The proviso under [name withheld] v The Queen was applied where the prosecution case was overwhelming notwithstanding identified errors in directions.
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