Defence counsel in criminal trials cannot put as a positive proposition in closing address any matter for which there is neither evidence nor grounding in cross-examination, even where the rule in Browne v Dunn does not strictly apply. A trial judge's decision not to separately highlight an alternative hypothesis consistent with innocence in the summing up will not constitute a miscarriage of justice where doing so would risk undermining the accused's primary case, particularly where experienced defence counsel did not seek any redirection.
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