1Where a prosecutor may have misunderstood the scope of an earlier grant of leave to cross-examine under s 38(3) of the Evidence Act 1995 (NSW), the court may permit further cross-examination on credibility matters after the accused's cross-examination has concluded, provided appropriate directions are given to alleviate unfairness.
2A witness's stated bias in favour of the accused, as recorded in prosecution conference notes, constitutes evidence that could substantially affect the assessment of credibility under s 103 and falls within the exception for bias or motive to be untruthful under s 104(3), even where the normal order of cross-examination under s 38(4) has been disrupted.
3Potential unfairness from disrupting the order of examination under s 38(4) can be cured by permitting further defence cross-examination, restricting the manner in which the evidence is adduced, and directing the jury that counsel have complied with ethical obligations.
