Where both prosecution and defence expert witnesses agree on the reasonable possibility that an accused suffered an involuntary loss of consciousness, and the key factual witness's evidence is unchallenged, it is not open to the jury to exclude that possibility beyond reasonable doubt. A prosecutor who does not seek leave to cross-examine their own witness under s 38 of the Evidence Act 2008 (Vic) cannot effectively impugn that witness's credit in final address.
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