The Court of Appeal held that a prosecutor's impermissible suggestion in closing address that the accused had covertly filmed the complainant did not cause a substantial miscarriage of justice where the evidence already implicitly established the accused's possession of a sexually-associated video, and the trial judge gave a strong anti-speculation direction. The Court further held that tendency evidence of the accused masturbating in common areas remained admissible and probative of the conduct element of a charge even where the accused's counsel indicated the fact of masturbation was no longer 'in issue', because the prosecution still bore the burden of proof and the complainant had been cross-examined in broad terms denying the conduct occurred. Stubley v Western Australia was distinguished on the basis that, unlike in Stubley, the tendency evidence here went to a fact the prosecution was still required to prove.
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