A prosecutor who cross-examines a prosecution witness under s 38 of the Evidence Act 2008 and intends to submit in final address that the witness tailored evidence out of bias or colluded with the accused must put those specific propositions to the witness in cross-examination. The essential question is not what the prosecutor intended but whether the jury might reasonably have understood the submissions as advancing those propositions. The distinction between tendency evidence (which bears directly on the probability of the offending) and context/relationship evidence (which explains behaviour) is substantive, not merely formal, and erroneous conflation in jury directions may compound other errors to produce a miscarriage of justice.
The full text is available to signed-in members, including the 19 later cases that cite this judgment.
8 of the 19 citing cases carry a classified treatment. How each court treated it is available to signed-in members.