A trial judge directing a jury on a breach of the rule in Browne v Dunn must not suggest recent invention where the accused's record of interview or other material contradicts that suggestion. The direction should be confined to telling the jury that the failure to cross-examine bears upon the weight to be attached to the relevant evidence or assertions, and should not tell the jury that the breach entitles them to more readily accept or reject evidence. Erroneous Browne v Dunn directions that constitute a significant denial of procedural fairness cannot be cured by the proviso, even where the evidence proves guilt beyond reasonable doubt.
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