Where a prosecutor cross-examines an accused about prior convictions without obtaining leave under s 104(2) of the Evidence Act 1995 (NSW), the trial judge must address the statutory requirements including the gateway provision in s 104(4), the test in s 103, and the balancing exercise under s 137 before permitting the cross-examination to continue. Failure to do so may constitute a miscarriage of justice warranting a new trial, even where defence counsel did not object. The question whether s 137 applies to credibility evidence remains open.
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