Rhetorical questions in a prosecutor's closing address asking 'if the accused was not the driver, who was?' do not invert the onus of proof where they highlight the absence of evidence of an alternative explanation, as distinct from rhetorical questions concerning motive to lie which implicitly require the defence to provide an answer. Improper remarks in a prosecutor's closing address (inflammatory characterisations, personal anecdotes, bar table assertions) may not result in a substantial miscarriage of justice where the trial judge gives proper directions, the defence address is robust, and the prosecution case is strong. The failure of defence counsel at trial to seek directions on matters raised with the trial judge is a relevant consideration in assessing whether a substantial miscarriage of justice occurred.
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