The appellant appealed his second-degree murder conviction, arguing the trial judge erred in finding a breach of the rule in Browne v. Dunn and in giving a restrictive corrective instruction.
The trial judge had instructed the jury that they could not find a key Crown witness fabricated her evidence about the appellant's confession because defence counsel did not explicitly put that suggestion to her in cross-examination.
The Court of Appeal allowed the appeal, finding no breach of the rule occurred as the tenor of the cross-examination made the defence's position clear.
Furthermore, the corrective instruction erroneously usurped the jury's function by prohibiting them from considering whether the witness fabricated the confession.
The curative proviso was not applied, and a new trial was ordered.
