Smith v The Queen [2018] VSCA 139

1 On Sunday 4 August 2013 at about 5:53 pm the applicant left the Ararat Hotel in Ararat. He had been drinking there alone throughout the afternoon. He attended an Aldi supermarket not far from the hotel shortly thereafter. At approximately 6:00 pm the applicant's motor vehicle veered across the dividing line of Lambert Street, Ararat into the path of an oncoming vehicle driven by Ayenew Kindish. There were six passengers in Mr Kindish's vehicle. There was a collision. As a result of the collision Mr Kindish sustained a serious injury. The other occupants of his vehicle suffered minor physical injuries. The applicant was in his vehicle at the time of the collision. He left the scene before police arrived. He did not render assistance. He suffered injuries himself, being a swollen right cheek, a minor split on his upper lip, an injured right ankle and an undisplaced fracture of the ulna in his right arm. Later that night the applicant appeared at the home of one of his friends, Timothy O'Brien. Mr O'Brien eventually took the applicant to the police station and later to the Ararat Hospital. When interviewed by the police the applicant maintained that he could not remember what had happened.

2 The applicant was charged with negligently causing serious injury (being the injuries caused to Mr Kindish), reckless conduct endangering serious injury (being the endangerment of Mr Kindish's passengers) and failing to assist after an accident.

3 The applicant pleaded not guilty. The two principal issues on his trial were whether the prosecution could prove beyond reasonable doubt that the applicant was the driver of his vehicle at the time of the collision, and whether the applicant left the scene of a collision in a condition which might have prevented him from being aware of the collision or the fact that injury had been suffered as a result of the collision.

4 After a trial before a judge in the County Court, a jury at Ballarat found the applicant guilty of the three charges on 10 November 2016. The applicant was sentenced on 22 November 2016. The applicant now seeks leave to appeal the convictions.

5 The application for leave to appeal sets out the following proposed grounds:

Ground 1: A substantial miscarriage of justice occurred in the instance of the Applicant by virtue of the prosecutor in closing address asserting matters that were not supported by evidence, were inaccurate or inflammatory.

Ground 2: A substantial miscarriage of justice occurred in the instance of the Applicant by virtue of the prosecutor in closing address making statements which invited the jury to invert the onus of proof and place it upon the Applicant.

Ground 3: A substantial miscarriage of justice occurred in the instance of the Applicant by virtue of the conduct of the prosecution in changing its case and departing from the prosecution Opening and the Notice to Admit at the commencement of the trial.

Ground 4: A substantial miscarriage of justice occurred in the instance of the Applicant by virtue of the conduct of the prosecution in relying upon the 'flight' of the Applicant as an implied admission of guilt in circumstances where he had just prior been involved in a major collision and was suffering concussion.

Ground 5: A substantial miscarriage of justice occurred in the instance of the Applicant by virtue of the prosecutor discrediting an important crown witness, without laying the foundation for this during the trial.

Ground 6: Aggregation of errors. A substantive miscarriage of justice has occurred in the instance of the Applicant by virtue of an aggregation of errors contained under Grounds 1-5.

Progress of the trial - proposed grounds 3 and 4

6 A jury was empanelled and a trial began on Monday 17 October 2016. That jury was discharged on Monday 24 October 2016. This occurred after what the trial judge described as a 'forensic blunder' on the part of counsel for the applicant[1] who questioned witnesses in such a way as to introduce evidence of good character without being aware of the applicant's prior criminal history. A second jury was empanelled on Tuesday 1 November 2016.

7 Between the two trials the prosecution changed its position on the issue of whether it was conceded that the applicant had suffered concussion as a result of the injuries he sustained in the collision. The prospect of this change was raised by the prosecutor at the end of the first trial after the jury had been discharged. The change in position was said to have been prompted by evidence led before the first jury.

8 There was a week before the second jury was empanelled. The prosecution did change its position. It did not concede the applicant was concussed and it relied upon the applicant's departure from the scene of the collision (flight) as an implied admission of guilt.

9 The prosecution change in position is the basis for proposed ground 3.

10 In relation to proposed ground 3, the respondent relies upon the fact that the change was made openly, and was explicable by reason of the evidence led before the first jury. There was a significant gap between the foreshadowing of the change and the empanelment of the second jury. No application was made for an adjournment.

11 In the hearing before us counsel for the applicant frankly conceded the cogency of the matters relied upon by the respondent concerning proposed ground 3 and did not address any submissions to that proposed ground. Leave to appeal on that proposed ground will be refused. It is not arguable for the reasons given by the respondent.

12 In relation to proposed ground 4, in the hearing before us counsel for the applicant conceded that the reliance upon flight as an implied admission had not been objected to. The trial judge gave the jury directions on the issue which are not the subject of complaint. Counsel for the applicant informed the Court that this proposed ground was intertwined with proposed ground 3. Counsel did not seek to make any submissions in relation to this proposed ground. Leave to appeal will also be refused on that proposed ground.

13 The other proposed grounds all concern the prosecutor's final address. It is necessary to review that final address in some detail and to refer, where necessary, to the evidence which was the subject matter of that address.

14 The prosecutor began her address by telling the jury that the only issue in relation to the charges of negligently causing serious injury (charge 1) and reckless conduct endangering serious injury (charge 2) was who was the driver of the applicant's vehicle at the time of the collision. In relation to the charge of failing to render assistance (charge 3) the prosecutor told the jury that counsel for the applicant would tell the jury that even if he was guilty on the first two charges he could not be guilty on the charge of failing to render assistance because he was concussed as a result of the collision. The prosecutor said: 'In relation to Charge 3 the prosecution say Mr Smith isn't concussed in the collision'.

15 The prosecutor early in her address dealt with the issue of assumptions. She told the jury that it was the applicant's car which was involved in the collision and she suggested that, as it was his car, it might be assumed that he was driving. She emphasised that this was not enough at law as it was nothing but an assumption. She told the jury that there had to be evidence, and she suggested that in this case there was evidence that would enable them to draw the inference that the applicant was the driver.

16 The prosecutor told the jury that the prosecution had a 'strong circumstantial case'. The prosecutor said that the prosecution relied upon six 'areas of evidence'. She later referred to them as 'pieces of a puzzle'.

17 The first 'piece of the puzzle' was CCTV footage at the Ararat Hotel and expert evidence which had been given as to the likely blood alcohol reading of the applicant given the amount of beer the CCTV footage showed him consuming that afternoon.

18 In the context of that evidence the prosecutor said the following:

I also invite you to look at the CCTV and not just the excerpts I am about to play to you, as Smith's not in the bar with anyone. In fact it's almost painful to watch how solitary his drinking is. There's a short period of time towards the end where Mr Smith talks very briefly to a female in the front of the bar, but the rest of the time he cuts a pretty pathetic figure, drinking alone at the bar with really only the company of Mr Preston.

20 The prosecutor referred to CCTV footage which showed the applicant leaving the hotel then returning briefly before leaving again. In relation to that re-entry and exit she said that he went back in, spoke to Mr Preston, and then exited again. She said: 'You can't see what he's doing on the CCTV for that moment, but you might think he's forgotten to get his car keys back from Mr Preston'.

21 There was evidence before the jury that the applicant had also been drinking in the hotel the day before the collision, that he had left his car and his keys at the hotel on that prior occasion, and that he had been dropped off at the hotel on the day of the collision to collect his car.

22 At the conclusion of dealing with 'puzzle piece no. 1' the prosecutor said: 'There he is. ... There are your 11 beers. That's the social afternoon that he had with his friends at the Ararat Hotel'.

23 The prosecutor then dealt with 'puzzle piece no. 2' which was CCTV footage from the Aldi supermarket.

24 In the context of that evidence, addressing the possibility that the applicant was not the driver of his car, the prosecutor said:

Some random person would somehow have to appear out of thin air in the Aldi carpark or the Ararat Hotel carpark and offer to drive for him. Who? Mr Preston?

25 The prosecutor then turned to what she characterised as the third piece of the puzzle, which was the evidence of other motorists who stopped at the scene of the collision. This was an area of significant controversy in the trial. The prosecution relied upon evidence that no second person had been observed in or near the applicant's car, and the defence relied upon a description of a person climbing out of the driver's window given by one of the witnesses who stopped at the collision, Mr Bekele Sisay, which was said to be inconsistent with the appearance of the applicant.

26 The prosecutor reviewed Mr Sisay's evidence and also the evidence of other witnesses who attended the scene of the collision. In setting out the circumstances as described by Mr Sisay the prosecutor said at one point 'screaming must be going on by this stage'.

27 The prosecutor then turned to what she described as the 'next body of evidence', which was evidence from the 'long term friends' of the applicant. The prosecutor referred to the evidence of Mr O'Brien concerning the events on the night of the collision, and the evidence of Bruce Thomas concerning the events of the day before. The aspect of the address which was significant in the application before us was what the prosecutor said in relation to Mr O'Brien.

28 The prosecutor began by referring to evidence that Mr O'Brien had been told by the police that the applicant had been involved in a collision before the applicant attended his house late that night. She then said:

He doesn't call the police, let them know Mr Smith's turned up. He's told you that he doesn't call for an ambulance, as Smith tells him he's not in the ambulance.

So, hold on, hold on, Smith's having fits, passing in and out of consciousness; O'Brien thinks he's dying, but Smith's telling him, 'don't call an ambulance because it'll cost too much money'. In fact O'Brien doesn't even call a doctor, doesn't even call and say, 'What should I do? This bloke's turned up, he's having fits. I've never seen anyone do anything like this'. No. 'I know what I'll do. I'll make him a cuppa. That's what I'll do'. 2:35 am O'Brien arrives at the police station with Mr Smith, where those photographs are taken of the injuries to Smith.

O'Brien then takes him to the hospital, where he's examined about 8:30 in the morning. It's a peculiar friendship, isn't it? I mean you've dropped him off at the pub that afternoon to pick up his car and you're told by another friend, Thomas, that Smith's car's been involved in a collision. You say you go looking for him, as the police have told you he's done a runner. Turns up at your house badly injured; on your account you don't call the police, tell them he's been located.

I mean I get it: some people just don't like calling the police; but you don't get immediate medical assistance when you think your long term mate that you've known nearly all your life is about to die, eyes rolling back in his head, that he's sweating and urinates his pants. Instead you, what - you make him a cuppa, you don't talk about anything. What you do talk about you don't remember.

29 The prosecutor then turned to 'puzzle piece no. 4' which was the mechanical investigation evidence. In the context of that evidence the prosecutor, amongst other things, made observations to the effect that the injuries suffered by the applicant to the right hand side of his body 'match the damage' to the vehicle. The prosecutor referred to the applicant's broken right arm and said:

The prosecution case, that fracture is exactly where it would be if you were at a steering wheel. It's right there towards the wrist. And of course the passenger side of the car, no, hold on, there's no damage to that side of the car. If Mr Smith was seated in that passenger seat why are all these very specific injuries located on him?

30 The prosecutor referred to evidence that the driver's side seat belt showed damage consistent with the force from an impact whereas the passenger side seat belt did not.

31 The prosecutor was about to deal with 'puzzle piece' number 5 when the judge adjourned for the day.

32 After the jury left the Court the judge questioned the prosecutor as to what she had meant by the submission she had made concerning Mr O'Brien. The judge was concerned that the prosecutor was inviting the jury to disbelieve Mr O'Brien. After several interchanges, the prosecutor maintained that the point she was making was that if the applicant had really been suffering from concussion he would not have had the presence of mind to say that he did not want an ambulance called because he was not insured against that.

33 Counsel for the applicant submitted to the judge that what the prosecutor had said had inferred that Mr O'Brien was in some way 'quite complicit' with the applicant.

34 Counsel for the applicant also raised other concerns which he had about the prosecutor's address. He complained about the submission made concerning the applicant's injuries and the failure by the prosecutor to ask either of the two doctors who had given evidence in the trial about the relationship between the injuries and the damage which the prosecutor had suggested to the jury. The judge noted that point and then asked whether there was anything else that was troubling counsel for the applicant. Counsel for the applicant raised what the prosecutor had said about the applicant speaking to Mr Preston after he left and re-entered the Ararat Hotel. There was then an interchange about what could be seen on the CCTV footage. The judge observed that counsel could address the jury about what could be seen on the CCTV footage and that the 'other two issues' were issues he was more concerned about. The judge expressed doubt as to whether the prosecutor was required to put to the doctors the proposition that the steering wheel might have led to the fractured right arm.

35 Counsel for the applicant suggested that he would invite the judge to give the jury a direction about what the prosecutor had said concerning the injuries and concerning the absence of any evidence that the applicant spoke to Mr Preston when he returned to the hotel. After further interchanges between counsel for the applicant and the trial judge, the judge told the applicant that he should think about what he wished the judge to tell the jury. The matter about which the judge had continuing concern was what he characterised as 'the attack on O'Brien' and he indicated that that matter would be considered at the conclusion of the prosecutor's address.

36 The following morning the prosecutor resumed her address dealing with 'puzzle piece no. 5' which was the medical and forensic evidence. In that context she dealt with the issue of whether the applicant was concussed. The applicant had been seen at the Ararat Hospital by Dr Deary, who had given evidence in the trial. The prosecutor said:

Dr Deary told you that neurologically, Mr Smith was properly oriented in time and place when he examined him, and that there was no evidence of concussion when he examined him. But he said Mr Smith had reported to him a loss of memory, and that, combined with the lack of finding any damage to his head on a CT scan, would fit with a diagnosis of concussion.

37 The prosecutor referred to accounts the applicant had given that he had no recollection of what had happened. She then referred specifically to Mr O'Brien's evidence about his condition when he had attended his house late on the night of the collision. She said:

But put this against what O'Brien has told us when I asked him why he didn't call an ambulance when Smith was having this fit. Mr O'Brien told us he was going to call an ambulance, but Mr Smith told him not to, as he wasn't in the ambulance and it would cost too much money. In my submission, that's a pretty lucid thought to be having when you're concussed.

As the doctor told you, to make a true diagnosis of concussion, an examination has to happen [within] half an hour of an event. We've all seen what happens on the football field when a player gets an insult to the head, whether it's from a fist or a boot. The assessment is done there and then. Most of the time, they get back on the field and keep playing. In this matter, there's over 14 hours before the examination is done, and all the doctor has to rely upon is what Smith tells him. A self-reported inability to recall the recent events.

38 Before turning to the evidence from the other medical practitioner who gave evidence in the trial, Dr Odell, the prosecutor said:

Let's think about this. If Smith is the passenger, where's the person in the driver's seat? If he's a passenger, how does he sustain those injuries?

39 The prosecutor referred to evidence given by Dr Odell before turning to what she characterised as 'puzzle piece 6' which was the record of interview. The prosecutor submitted that in his record of interview he had minimised his drinking. The prosecutor suggested that the applicant's professed loss of memory and an account he had given of walking down a railway line at some point were motivated by a desire to explain how he had got away from the scene and to Mr O'Brien's house. The prosecutor attempted to describe the scene of the collision at the relevant time, making the observation that there were cars banked up, SES trucks, ambulances, police cars and 'people screaming'.

40 The prosecutor dealt with the issue of flight and in that context said: 'Where's this mystery friend that drove the car? The prosecution say you can eliminate that as a logical explanation, leaving the scene'.

41 The prosecutor returned to the issue of concussion. In that context she said: 'The prosecution say Mr Smith's not concussed'.

42 The prosecutor then turned to a suggestion she anticipated would be made by the defence that a person of the applicant's size could not have climbed out of the driver's side window in the manner in which Mr Sisay had described a person (presumably the driver) doing. In that context the prosecutor told an anecdote about her mother jumping onto a fence post when she saw a snake. The prosecutor suggested that the explanation for this was the 'old fight flight theory'.

[Counsel for the applicant] is shortly going to put to you that Mr Smith left the scene because he was concussed. He's not concussed. He's not knocked unconscious by the impact. What, he's got a sore jaw that he complains about in his record of interview? Maybe a swollen face. He's not unconscious at the scene. He's up and pulling himself out of the car as soon as the car comes to rest. Sisay's there.

44 The prosecutor referred to the applicant's knowledge of the area and suggested he could 'probably hear the sirens' of the approaching police.

45 The prosecutor concluded her address by suggesting that when all of the areas of evidence were examined carefully the verdict should be guilty on all charges.

Submissions as to the prosecutor's address prior to the defence address

46 At the end of the prosecutor's address counsel for the applicant again addressed the judge on the issue of what the prosecutor had initially said concerning Mr O'Brien. The following interchange occurred:

[Counsel] With the utmost respect to the Court, I'd be leaning on the Court to add weight to notifying the jury or advising the jury of evidence that O'Brien gave that he was a prosecution witness, that he gave clear and precise evidence, factual evidence.

His Honour: I think the way the argument has been put this morning at least implied that the prosecution position is that Smith has hoodwinked O'Brien as well.

[Counsel]: Yes, I accept that too ...

47 The judge then summarised the submission that the prosecutor had put to the jury concerning Mr O'Brien that morning and concluded:

So the concerns I had yesterday about the way in which that argument might be developed were alleviated, from my point of view, and you've obviously got no different view, or you'd be saying something different to me now.

48 The judge again invited counsel for the applicant to think about what the judge might say to the jury about Mr O'Brien. The judge observed that the argument the prosecutor had put that morning was 'clear and steered away from the dangers that I was apprehending yesterday'. The judge observed that the aspects of her earlier address which had caused him concern now seemed 'reasonably remote' and counsel for the applicant responded: 'It's dissipated now'. The judge nevertheless repeated his request to counsel for the applicant to consider what he might say on the issue in his charge and counsel for the applicant said that he would 'come back' to the judge on that.

49 The judge and counsel for the applicant then considered other issues which had caused concern to the applicant's counsel in the prosecutor's address. One matter upon which counsel for the applicant requested a direction was the submission the prosecutor had made to the effect that the applicant had come back into the hotel and spoken to Mr Preston before leaving and going to the supermarket. The judge said:

I think I'll listen to what you say about the topic and you can return to this issue again at the end of your closing address and if you say there's a need in fairness for me to support your position, I'll reconsider it.

50 The judge indicated that his thinking 'at the moment' was that counsel was in a position to deal with that matter without the judge being required to make any comment on it.

Defence counsel's address, further submissions to the trial judge, and the charge

51 Defence counsel addressed the jury in very robust terms. He described the prosecution case as 'awful, desperate, terrible', and 'riddled with guesswork and innuendo'. He suggested that the police investigation had been incompetent and biased. The applicant described what the prosecutor had said about the injuries and the concussion as evidence 'from the Bar table'. Amongst other things, he addressed at some length the medical evidence about concussion, and the injuries to the applicant.

52 Towards the end of defence counsel's address the trial judge gave the jury a break. The trial judge raised one matter which concerned him in relation to something that defence counsel had said about jurors' capacity to discuss the case after they were discharged. The judge did subsequently direct on that matter. It has no relevance to any of the issues raised in the application. Counsel for the applicant indicated to the judge that he was very close to concluding his final address and the judge then asked him whether he still wanted the judge to say something about Mr O'Brien. Counsel said that he did not. The judge observed that 'that disposes of that issue' and counsel for the applicant agreed.

53 The judge commenced his charge to the jury. When he stopped for the lunch adjournment he raised with counsel how they wished him to deal with the difference between 'truthfulness and reliability' and suggested that he could mention the evidence of Mr O'Brien in that setting. Counsel for the applicant responded to that suggestion as follows: 'I don't want you to go there, your Honour'.

54 The prosecutor raised complaints she had in relation to defence counsel's address. It is unnecessary to go into those complaints in the context of this application. The trial judge raised other issues which were to be the subject of the charge.

55 One of the matters which had been raised by counsel for the prosecution was what she contended to be a mischaracterisation of the prosecution's position on the issue of whether the applicant had been concussed. When the judge resumed his charge he made it clear to the jury that the prosecution did not contend or concede that the applicant had been concussed at any relevant point in time.

56 The judge gave conventional directions on the burden of proof, the drawing of inferences, the role of counsel, and the necessity to decide the case on the evidence. As is conventionally done, the judge told the jury counsel's comments and arguments could be adopted if they agreed with them and should be 'put to one side' if they did not. He gave directions in conventional terms on the way in which the jury should assess a circumstantial case. He gave directions concerning the prosecution's reliance on flight as an implied admission of guilt. It is not contended that there was any relevant shortcoming in the directions which the judge gave on these issues.

57 The judge gave each counsel a further opportunity in the absence of the jury to address him in relation to matters that he might deal with in the charge before he concluded. In that context he raised the issue about the question of the applicant returning to the hotel after initially exiting it. In defence counsel's address he had said to the jury that they might be wondering why Mr Preston had not been called as a witness. The judge queried whether counsel were seeking a Jones v Dunkel[2] direction. Counsel for the applicant said that he was not. The judge then observed: 'That's the end of the issue then'.

58 The judge was nearing the end of his charge when he adjourned for the day. He asked if there were any exceptions. There were none.

59 Before resuming the charge the following morning, in the absence of the jury, the following interchange occurred:

His Honour: If I can just raise something with you, [counsel for the applicant], if you'd help me.

I'm not absolutely confident where we are with the various things you've asked me to do with respect to jury directions. I think we're in the position where there's nothing that I've overlooked, you're not asking me to do anything that I haven't done. For example, you certainly didn't want me to say anything about what you described as [counsel for the prosecution's] gilding of the lily, and you didn't want me to say anything about the submissions made by [counsel for the prosecution] concerning the observations of Mr Smith, it's said talking to Mr Preston. So - - -

[Counsel]: No, that's - - -

His Honour: - - - None of that you want me to say anything of?

[Counsel]: No. I think even without discussions yesterday about where [counsel for the prosecution] went about Smith's - Smith and O'Brien. That was all smoothed or soothed over.

60 Counsel for the applicant confirmed with the judge that there was nothing further that he sought the judge to do. Counsel said: 'I'm pretty satisfied that those directions have been covered off quite well by your Honour'. The judge then discussed with counsel what could be seen on the CCTV footage concerning Mr Preston, and raised other issues of no present relevance before completing his charge and asking the jury to retire and consider its verdict. There were no exceptions.

61 Proposed ground 1 concerns assertions said to have been made by the prosecutor which were not supported by evidence and were inaccurate or inflammatory.

• what was said by the prosecutor concerning the injuries suffered by the applicant 'matching' the damage to the car;
• the positive assertions made by the prosecutor in her closing address to the effect that the applicant was not concussed;
• the observations made by the prosecutor concerning the CCTV footage showing the applicant drinking alone to the effect that he presented as a 'pathetic' figure and what was said to be the sarcastic remark about his 'social afternoon drinking with his friends';
• the submission made by the prosecutor about the applicant returning to the hotel and speaking to Mr Preston;
• the rhetorical questions asked concerning who was the driver if it was not the applicant;
• the suggestions made by the prosecutor that there had been 'screaming' at the scene and that the applicant had probably 'heard sirens';
• the anecdote concerning the prosecutor's mother;
• what the prosecutor had said about football players and concussion; and
• what was said to be unacceptably emotive language used by the prosecutor throughout her final address, in particular in relation to the evidence of Mr O'Brien.

63 What the prosecutor had said about Mr O'Brien was the focus of the submissions made in support of proposed ground 5. It was submitted that the trial judge had accurately identified what had been an attack upon the credit of Mr O'Brien by the prosecutor when she initially dealt with his evidence. Counsel for the applicant before us accepted that counsel at the trial had not sought a direction from the judge on the issue and had suggested or acquiesced in the proposition that it could be dealt with in his own address. It was submitted to us, however, that counsel for the applicant had not dealt with it in his final address. It was submitted that the initial attack which the prosecutor had made on Mr O'Brien's credit was never corrected.

64 In relation to proposed ground 2 concerning what are said to be statements made which invited the jury to invert the onus of proof, reliance was placed upon the rhetorical questions asked by the prosecutor asking who the driver was if it was not the applicant.

65 Counsel for the applicant submitted that the 'single greatest vice' of the prosecutor's final address was the rhetorical questions which, it was submitted, had had the effect of inverting the onus of proof. Otherwise, it was submitted that it was a combination of matters rather than any of the individual complaints which ought to result in a conclusion that there had been a substantial miscarriage of justice.

66 Counsel for the respondent conceded that the prosecutor should not have said what she did about the applicant cutting a 'pathetic' figure and the comment, which must be seen as sarcastic, about the applicant's 'social afternoon' with his friends. Counsel also conceded that the anecdote concerning the prosecutor's mother was unnecessary and unhelpful. Counsel submitted, however, that these shortcomings should be placed into context. The fact that the applicant had been drinking alone all afternoon was a very relevant issue in the case, given that the possibility of some other person being the driver was the principal issue in contention. In relation to the anecdote concerning the prosecutor's mother, the submission that people can do remarkable things when placed in a stressful situation was a relevant one.

67 It was submitted that the Crown case was a very strong circumstantial case and that the imperfections in the prosecutor's closing address could not have resulted in any substantial miscarriage of justice. It was also submitted that the robust character of defence counsel's final address was relevant.

68 It was submitted that none of the things said by the prosecutor, in isolation or in combination, warranted a conclusion that a substantial miscarriage of justice had occurred.

69 The respondent submitted that the prosecution position always was that it did not accept that the applicant had been concussed. As the prosecutor made clear early in her address, this was critical in relation to charge 3.

70 It was submitted that the rhetorical questions asked about the identity of the driver did not, in the context, invert the onus of proof. The car in the collision was his car, he was in the vehicle at the time, he had been at the hotel alone all afternoon, he had left the hotel alone, he had been in the Aldi supermarket alone, the accident occurred a short time thereafter, the witnesses at the scene did not see any second person in or near the applicant's car. It was submitted that in the context the rhetorical questions were properly to be seen as asking the jury to consider if there was any evidence of an alternate driver which might cause the jury to have a reasonable doubt as to whether the applicant was driving. Reliance was also placed upon the prosecutor's submission that the jury could not assume the applicant was the driver and her detailed analysis of the circumstantial case.

71 In relation to what the prosecutor had said about football players it was submitted that the prosecutor was doing no more than attempting to emphasise what had been the medical evidence given by the witnesses. It was submitted that what the prosecutor had said was not inviting the jury to reach a conclusion that a concussed person could 'play on', but rather they were directed to the proposition that a diagnosis of concussion could only be reliably made very shortly after the relevant injury.

72 Counsel for the respondent particularly emphasised the fact that the applicant's counsel at the trial had been given every opportunity to make submissions to the trial judge as to directions that might be given. Reliance was placed upon counsel for the applicant's eventual conclusion that he did not want a direction or comment made about what the prosecutor had said concerning Mr O'Brien and that he had told the judge he had no further issues which he wished to raise in relation to the judge's charge.

73 There was no significant difference between the applicant and the respondent in relation to the legal principles applicable. Reference was made to the decisions of this Court in Bugeja v The Queen;[3] De Vries v The Queen;[4] Basic v The Queen[5] and Spence v The Queen.[6]

74 In Bugeja, Weinberg JA set out in some detail the obligations of prosecuting counsel in a closing address.[7] He emphasised that the role of prosecuting counsel differs from that of an advocate representing an accused person. A prosecutor's closing address must deal with the issues in a manner which is scrupulously fair. He or she must not appeal to prejudice and must not mount an intemperate or emotional attack upon the accused.

75 The particular issue of concern in Bugeja was a submission made by a prosecutor which, in the particular circumstances of that case, had had the potential to mislead the jury, not because of the evidence that had been given but rather because of matters which had taken place in the jury's absence. That is not the position here.

76 This Court in De Vries articulated the fundamental principle of fairness that a prosecutor must not attack the credit of a prosecution witness without having afforded that witness the opportunity to address the substance of the relevant criticism.[8]

77 In Basic, Priest JA, with whom Ashley and Redlich JJA entirely agreed on this issue, dealt with a ground of appeal which concerned a prosecutor who, in the course of a prosecution for drug trafficking, had characterised the accused as unemployed, leading a 'life of leisure', sleeping during the day, and driving around in a luxury car at night selling drugs, with large amounts of cash in his glove box and in his kitchen at home.

78 Priest JA adopted a summary of features of a Crown address that warranted censure set out in the decision of the New South Wales Court of Criminal Appeal in R v Livermore.[9] That Court said that those features were submissions based on material not in the evidence, intemperate or inflammatory comments tending to arouse prejudice or emotion, comments belittling or ridiculing the accused's case, impugning the credit of a Crown witness without affording the witness the opportunity to respond, and conveying personal opinions. Priest JA concluded that the statements which had been made by the prosecutor in Basic were improper and prejudicial. He nevertheless concluded, not without considerable hesitation, that there had been no substantial miscarriage of justice. In that respect he was particularly influenced by the judge's directions to the jury concerning the way in which they were to deal with counsel's addresses and their obligation to decide the case on the evidence.

79 Finally, this Court in Spence dealt with the issue of rhetorical questions in a prosecutor's final address. The particular context in which that issue arose in Spence was rhetorical questions concerning a motive to lie. The Court referred to the principle in Palmer v The Queen.[10] The Court observed that the decision in Palmer, that an accused could not be asked in cross-examination why a complainant would invent allegations against him, applied equally to a prosecutor's closing address. Spence was a case where the prosecutor in the closing address had asked rhetorical questions about why a Crown witness would have made up the evidence he had given. Having referred to Palmer, and its application to closing addresses, this Court said:

The principle may be infringed because it is explicitly submitted that no motive to lie has been proffered by the accused or because rhetorical questions or other forms of argument implicitly convey that message. But the use of rhetorical questions in the Crown's closing address does not of itself infringe the principle unless the form of argument that is employed has the effect of casting an obligation on the accused to answer the questions posed and thereby reversing the onus of proof.[11]

80 The prosecutor should not have made the observations which she did concerning the applicant's solitary drinking ('painful to watch', 'pretty pathetic figure', 'social afternoon he had with his friends'). The comments added nothing to the prosecution case. It was certainly relevant that the applicant was alone, but it was unnecessary to characterise him in that way. That characterisation, however, was not like the characterisation in Basic which was obviously far more prejudicial. The comments should not have been made, but they did not result in a miscarriage of justice. Counsel for the applicant was astute in identifying and raising problems with the prosecutor's address. He did not raise this issue with the trial judge.

81 The suggestion that the prosecutor made submissions that were not based on the evidence, in relation to the injuries and the damage and in relation to the applicant speaking to Mr Preston when he returned to the hotel, are without substance in our view. The prosecutor was entitled to make submissions based upon the evidence. The jury had evidence of the injuries and of the damage. They would have to assess it. The prosecutor was entitled to make submissions about it. The prosecutor's submission about speaking to Mr Preston depended upon what could be seen in the CCTV footage which the jury had and could view for themselves. The prosecutor's suggestion that the applicant may have returned to the hotel for his car keys was preceded by the words 'you might think'. What she said was a submission and, in our view, a submission she was entitled to make.

82 The prosecutor on two occasions referred to people 'screaming' at the accident scene and suggested that when the applicant left the scene he could 'probably' hear sirens. She probably went beyond the evidence in making these observations. In our view, there is no significance in this. No issue about it was raised at the time.

83 The prosecutor's anecdote about her mother was unnecessary and unhelpful. It was not, however, prejudicial. It was merely an illustration of a fairly obvious submission about 'fright flight'. What the prosecutor said about football players was also unnecessary but, again, in the context it merely served as an unnecessary embellishment to a legitimate submission which the prosecutor was making, based upon the medical evidence, about the need for a contemporaneous assessment in order to have a reliable diagnosis of concussion. That said, as this Court has said in a different context,[12] arguments to a jury may be supported by analogy or other theoretical circumstances, but factual assertions from the bar table and personal anecdotes should not form part of an address to a jury.

84 As to the position in relation to Mr O'Brien's evidence, in our view the prosecutor was initially inferring, or at least laying the groundwork to infer, that Mr O'Brien was not to be believed. However, the judge identified the problem quickly and the prosecutor never developed the submission. Indeed, she went on to make a submission in relation to Mr O'Brien's evidence which was founded on the proposition that he was to be believed. Both the trial judge and counsel for the applicant at the trial apprehended that that issue had accordingly 'dissipated' and been 'smoothed over'. The trial judge gave the applicant's counsel every opportunity to suggest a direction or comment which the judge could make about this issue, should the applicant's counsel consider it desirable. The applicant's counsel made the forensic decision that no such direction or comment would be sought. Obviously, he also decided not to apply for a discharge of the jury. It seems clear that the reason he took that view was because he considered, as did the trial judge, that the issue had dissipated by reason of the prosecutor's later submissions.

85 The prosecutor did ask at three points during her final address, in different contexts, rhetorical questions to the effect of: if the applicant was not the driver who was? In the context of this case those questions were not such as to invert the onus of proof. The questions were not like rhetorical questions concerning a motive to lie, which implicitly suggest that the defence should provide the motive. Rather they were a means of highlighting the absence of evidence of any second person at the hotel, at the supermarket, or in the applicant's car. The judge gave the jury directions on the onus of proof. He was astute to detect and raise issues of concern in the addresses. Neither the judge nor the applicant's counsel apprehended any inversion of the onus of proof in the prosecutor's address. Rhetorical questions are a well-established feature of oratory. That said, prosecutors should carefully consider their import in the context before using rhetorical questions in an address to a jury.

86 We have considered the complaints made in relation to the prosecutor's address both separately and in combination. The prosecutor did say things that ought not to have been said, as we have explained, but for the reasons given there was no substantial miscarriage of justice as a result.

87 We would grant leave to appeal on grounds 1, 2, 5, and on ground 6 insofar as it relies upon grounds 1, 2 and 5, but the appeal should be dismissed.

[1] Not the counsel who appeared on the application for leave.

[2] A reference to Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298.

[3] [2010] VSCA 321; (2010) 30 VR 493 ('Bugeja').

[4] [2013] VSCA 210 ('De Vries').

[5] (2015) 251 A Crim R 91 ('Basic').

[6] [2016] VSCA 113 ('Spence').

[7] Bugeja [2010] VSCA 321; (2010) 30 VR 493, 503-4.

[8] De Vries [2013] VSCA 210 [21].

[9] [2006] NSWCCA 334; (2006) 67 NSWLR 659, adopted by Priest JA in Basic (2015) 251 A Crim R 91, 102-3 [64].

[10] [1998] HCA 2; (1998) 193 CLR 1 ('Palmer').

[11] Spence [2016] VSCA 113 [30] (citations omitted).

[12] Rees v Bailey Aluminium Products Pty Ltd [2008] VSCA 244; (2008) 21 VR 478, 510 [104], 513 [114].