Cross-examination of an accused about matters not put to a Crown witness by defence counsel is not prejudicial where the questioning addresses only the first premise of a Birks comment (that the matter was not put) without establishing the second premise (counsel's obligation to put instructed matters) or the third premise (inference of recent fabrication), and without the missing reasoning being supplied in address or summing up. Birks reasoning is not intuitive and an implication of recent invention will not suggest itself to a jury from incomplete questioning alone. Prosecutors should refrain from Birks cross-examination until the foundations and implications have been carefully considered.
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