Defence counsel must not positively assert collusion or other serious criminal conduct in cross-examination without instructions, evidence, or a reasonable foundation for the allegation; exploratory questions are permissible but positive assertions are not. Where a trial judge warns that pursuing a particular forensic strategy will result in the admission of prejudicial evidence, counsel must re-evaluate the forensic benefit of that strategy and, if the judge's view of admissibility is erroneous, must firmly seek a formal ruling rather than acquiesce. A trial judge's obligation to exclude irrelevant and highly prejudicial evidence under s 137 of the Evidence Act is not displaced by the forensic choices of defence counsel. An accused will not be bound by counsel's forensic decisions where those decisions were incompetent and resulted in no forensic advantage.
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