A prosecutor's closing address that contains an element of speculation will not give rise to a miscarriage of justice where the speculative element does not materially add to the State's case, the prosecutor reminds the jury not to speculate, defence counsel chooses to deal with the matter in closing rather than raise it with the trial judge, and the trial judge gives appropriate directions. A reference to 'the only explanation offered' by a defence witness does not constitute a comment on the accused's failure to give evidence under s 8(1)(c) of the Evidence Act 1906 (WA) where the word 'only' refers to the sole evidential source for the defence contention rather than to the accused's silence.
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