Where a trial judge's ruling and reasoning unfairly deter a defendant from giving evidence — even though the ruling does not preclude the defendant from testifying — a miscarriage of justice occurs. A trial judge should not make unequivocal statements that the prosecution may cross-examine a defendant about recent invention where the failure to put matters in cross-examination may have explanations other than recent invention. Following Hofer v The Queen, except in the clearest cases with clear indications of recent invention, an accused should not be subjected to cross-examination suggesting recent invention based on counsel's failure to observe the rule in Browne v Dunn.
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