A prosecutor is not necessarily obliged to seek leave under s 38 of the Evidence Act 1995 (NSW) to cross-examine a Crown witness before submitting that the witness's evidence should not be accepted, where the attack is merely that the witness is mistaken (as opposed to alleging conspiracy or perjury) and the evidence is obviously contrary to the Crown case. The distinction between Pell v The Queen and cases where the complainant directly contradicts the Crown witnesses' evidence is critical: where the complainant's own evidence refutes the supposed circumstance of impossibility, the jury may prefer the complainant's evidence notwithstanding the absence of cross-examination of the contradicted witnesses.
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