His Honour went on to say that not only could the jury use the failure to put a matter to the complainant as a reason to doubt the truth of the applicant's evidence as to that matter, they could also take the failure into account "in relation to your assessment of his general credibility as a witness."
23 In fact it was clear that the jury was not entitled to conclude that recent invention was the real reason for the failure to put to the complainant the matters earlier identified by the trial judge as inconsistent with the complainant's evidence.
24 The applicant was interviewed by the police on 21 October 2004, over 15 months before the commencement of the trial. A record of that interview was tendered during the trial. In the record of interview the applicant gave the version the trial judge identified as a recent invention. When asked how he came to be with the complainant, the applicant said that the complainant "called me to pick her up." He said that as they were driving home from McDonald's "Murat told me she's not really well." The applicant told the police that after returning to the applicant's house he was going to take her home but "she wanted a little drive."
25 The trial judge might have said that it was open to the jury to find that the applicant gave one version of the events of the night to the police and another version to his counsel. Instead, and, I think, more damagingly, his Honour said that the jury could conclude that the applicant had invented aspects of his evidence after the trial began.[3]
26 Unfortunately, neither counsel for the applicant nor the prosecutor took any exception to the trial judge's invitation to the jury to infer that the applicant had invented evidence after the complainant gave evidence. Despite the general rule that a criticism of the charge to the jury, which is capable of being cured at trial, must be taken at the trial and, if it is not, a new trial will not be ordered,[4] the Court's jurisdiction to order a new trial depends upon the demands of justice.[5] In my view the trial judge's invitation to the jury to draw an inference that may well have led the jury to disbelieve the applicant, but was in fact precluded by the evidence, constituted a substantial miscarriage of justice, which is not to be disregarded because counsel failed to take exception to it.
27 The fourth and fifth grounds of the application are that the trial judge erred in failing to direct the jury as to causation and properly direct the jury as to the use that they could make of circumstantial evidence.
28 The trial judge gave a comprehensive and orthodox direction on the drawing of inferences. No exception was taken to it at the trial, and in my view it was adequate to meet this case. As to causation, the substantial issue in the case was whether the applicant gave the complainant a tablet of alprazolam. There was also the question whether the complainant's symptoms were the result of imbibing the drink into which Jake was said to have dropped the tablet. The trial judge told the jury that the Crown was required to establish, inter alia, that the applicant administered alprazolam to the complainant and that the substance was capable of interfering substantially with the bodily functions of the complainant. In the course of instructing the jury as to the alternative charge of recklessly causing injury, on which the jury returned a verdict of guilty, the trial judge said that the Crown must prove that "an act of the accused caused injury to the victim." In the circumstances of this case, I consider that direction was sufficient.
29 In oral submissions counsel for the applicant developed the argument that the trial judge failed to spell out to the jury the hypothesis that the complainant had ingested the drink spiked by Jake and instruct them that unless that hypothesis could be excluded, the Crown had not proved its case.
30 In Shepherd v R[6] Dawson J, speaking of the direction that, where the jury relied on circumstantial evidence, guilt should not only be a rational inference but should be the only rational inference that could be drawn from the circumstances, said: