A prosecutor who advances submissions lacking an evidentiary basis, or who impugns the motives of defence counsel, departs from the duty of fairness, but such departures will not result in a substantial miscarriage of justice where they are not critical to the prosecution case, are effectively rebutted by defence counsel, and are addressed by appropriate judicial directions. Where forensic evidence has been excluded as irrelevant under s 55 of the Evidence Act 2008 (Vic), the prosecutor is entitled to submit that the absence of forensic evidence is consistent with a planned crime, without this constituting an impermissible alteration of the prosecution case. An accused's failure to inquire about the circumstances of a spouse's death when informed by police is capable of constituting incriminating conduct as part of a circumstantial case.
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