Cross-examination of an unfavourable witness under s 38(1) of the Evidence Act 1995 (NSW) may extend to questioning about the witness's motives for changing their account, including matters such as anger at police or dissatisfaction with the prosecution process, where such questioning is directed at establishing the probability of the truth of prior inconsistent statements and is not relevant only to credibility. However, the boundary between s 38(1) and s 38(3) remains contested, with the court divided on whether questioning about threats, friendship with the accused, and anger at police for charging the witness falls within s 38(1) or requires separate leave under s 38(3). The Stanoevski test applies: even where the trial judge errs in not requiring leave under s 38(3), no miscarriage of justice results if the trial judge could not reasonably have refused leave had an application been made.
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