A prosecutor who intends to attack the credibility of a prosecution witness in closing address on the basis of bias or partiality must first seek leave to cross-examine that witness under s 38 of the Evidence Act 2008 (Vic); failure to do so before making such submissions constitutes a breach of the prosecutor's duty of fairness and may result in a substantial miscarriage of justice even where defence counsel does not object. The absence of objection by experienced defence counsel does not preclude a finding of substantial miscarriage of justice where no forensic advantage from the failure to object can be discerned. Prosecutorial misconduct causing a mistrial is a relevant but not determinative factor in the discretion to order acquittal rather than retrial under s 277(1) of the Criminal Procedure Act 2009.
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