SMITH v THE KING [2026] SASCA 62

On Appeal from DISTRICT COURT OF SOUTH AUSTRALIA (HER HONOUR JUDGE TELFER) DCCRM-23-038333 Appellant: CAMERON LUKE PETER SMITH Counsel: MR M MEAD - Solicitor: ANDREW HILL & CO Respondent: THE KING Counsel: MS A DOECKE KC - Solicitor: CROWN SOLICITOR (SA) Hearing Date/s: 20/05/2026 File No/s: SCCRM-25-025659 A SUPREME COURT OF SOUTH AUSTRALIA (Court of Appeal: Criminal) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. SMITH v THE KING [2026] SASCA 62 Judgment of the Court of Appeal (The Honourable President Livesey, the Honourable Justice Bleby and the Honourable Justice B Doyle) 4 June 2026 CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE - MISDIRECTION OR NON-DIRECTION - NON-DIRECTION CRIMINAL LAW - EVIDENCE - CREDIBILITY - FAILURE TO PUT MATTER TO WITNESS The appellant was charged with having committed a number of offences involving his domestic partner (‘the complainant’). Following a trial by jury, he was found guilty and convicted of aggravated recklessly causing serious harm (count 2 on the Information) but was acquitted of the other counts. Count 2 alleged an assault in which the appellant struck the complainant with a dinner plate, causing facial wounds. The appellant did not give evidence or call any evidence at the trial. The appellant’s account in his record of interview was that the complainant incurred her facial injury in an accident when she slipped and fell through a glass shower door. This account was consistent with sworn evidence given by the complainant in a hearing in the Magistrates Court of South Australia in relation to a rental bond dispute. The complainant’s evidence was that whilst there had been an incident in the course of which the shower door was broken, this occurred about two weeks before the occasion on which she suffered her facial injury. Her evidence was that when the shower door broke, it shattered into tiny cubes in a way that she understood to be a safety feature of the glass. In the course of his closing address, the prosecutor told the jury that the complainant’s evidence about this aspect of the glass in the shower door had not been challenged in cross-examination and that, on that basis, the jury could accept that evidence. The prosecutor also made various submissions concerning the mechanism by which the complainant might have suffered her facial injury if she had, consistently with the appellant’s account, slipped into or through the shower door. -- 1 of 30 -- The appellant appeals against his conviction, contending that: 1. the trial judge erred by failing to direct the jury to scrutinise the complainant’s evidence with care before arriving at a conclusion of guilt; and 2. a miscarriage of justice was occasioned by the comments made by the prosecutor during the course of his closing address concerning the possible mechanisms for an injury involving the shower door. Held, granting permission to appeal on grounds 1 and 2, but dismissing the appeal: 1. in circumstances where the parties’ addresses and the summing up highlighted that acceptance of the complainant’s evidence as credible and reliable was critical to a conclusion of guilt beyond reasonable doubt, where the challenges to that evidence were thoroughly canvassed in the addresses and the summing up, and where those challenges involved issues that a jury with its collective experience was able to grasp, the absence of a scrutinise with care direction was not productive of a miscarriage of justice; 2. having regard to the parties’ addresses and the summing up, the jury were unlikely to have understood the prosecutor’s submission as purporting to describe a rule or principle by which they were bound to accept the complainant’s evidence regarding the glass shower door shattering into tiny cubes. The prosecutor’s address did not occasion a miscarriage of justice. Criminal Law Consolidation Act 1935 (SA) s 23(3); Criminal Procedure Act 1921 (SA) s 158(1)(c), referred to. Brown (a pseudonym) v The King [2025] SASCA 40, distinguished. AL v The Queen (2017) 266 A Crim R 1, [2017] NSWCCA 34; Bell v The King [2025] SASCA 97; Browne v Dunn (1893) 6 R 67; Bulstrode v Trimble [1970] VR 840; Hofer v The Queen (2021) 274 CLR 351; Kendall v The King [2024] SASCA 54; Laughton v R [2019] NSWCCA 74; MWJ v The Queen (2005) 80 ALJR 329, [2005] HCA 74; R v Brown [2020] QCA 159; R v Costi (1987) 48 SASR 269; R v FAL [2017] QCA 22; R v GW (2016) 258 CLR 108; R v Murray (1987) 11 NSWLR 12; R v Rajakaruna (No 2) (2006) 15 VR 592; R v Reynolds [2015] QCA 111; R v Tong (a pseudonym) (2021) 9 QR 571; Shepherd v The Queen (1990) 170 CLR 573; Singh v The King [2025] SASCA 98; Tully v The Queen (2006) 230 CLR 234, discussed. Robinson v The Queen (1999) 197 CLR 162, considered. -- 2 of 30 -- SMITH v THE KING [2026] SASCA 62 Court of Appeal – Criminal: Livesey P, Bleby and B Doyle JJA 1 THE COURT: The appellant was charged with having committed a number of offences involving his partner of some years (‘the complainant’). He was found guilty and convicted of aggravated recklessly causing serious harm (count 2 on the Information),1 but was found not guilty of the other counts. Count 2 alleged an assault in which the appellant struck the complainant with a dinner plate, causing facial wounds. He seeks permission to appeal against that conviction. 2 The appellant’s first complaint is that the trial judge’s failure to direct the jury that they should scrutinise the complainant’s evidence with care before arriving at a conclusion of guilt (sometimes called a ‘Robinson direction’) occasioned a miscarriage of justice.2 3 For the reasons that follow, the features of the complainant’s evidence which called for careful consideration were the subject of specific directions in the course of the summing up or were otherwise matters the jury were equipped to consider without the benefit of any further direction from the judge. The jury would not have failed to appreciate that they could not return a verdict of guilt unless they were satisfied of the honesty and reliability of the complainant’s account concerning count 2. It was made clear that rejection of the appellant’s account (that the complainant had slipped and injured herself in the shower) as a reasonable possibility did not relieve the prosecution of its burden. In all the circumstances, the absence of a ‘scrutinise with care’ direction did not occasion a miscarriage of justice. 4 The appellant also contends that a miscarriage of justice was occasioned by submissions made by the prosecutor in closing address.3 The comments concerned the mechanism by which the complainant might have suffered her facial injury if, consistently with the appellant’s account in his record of interview, the complainant had slipped and fallen into or through the shower door. The complainant’s evidence was that whilst there was an incident in the course of which the shower door had been broken, this occurred about two weeks before the occasion on which she suffered her facial injury. Her evidence was that when the shower door broke it shattered into tiny cubes in a way that she understood to be a safety feature of the glass. In the course of his closing address, the prosecutor said that the complainant’s evidence about this aspect of the glass in the shower door had not been challenged and that, on that basis, the jury could accept the evidence. 5 For the reasons that follow, in context, the prosecutor’s submission more likely conveyed that the absence of challenge to an aspect of the complainant’s 1 Criminal Law Consolidation Act 1935 (SA), s 23(3). 2 Appeal ground 1. 3 Appeal grounds 2, 3 and 4. -- 3 of 30 -- [2026] SASCA 62 The Court 2 evidence was a reason in favour of (but not in itself requiring) its acceptance. To the extent that the submission assumed non-compliance with the rule in Browne v Dunn,4 it was likely misplaced. However, it was made clear to the jury that it was for them to decide how to find the facts, and that it was for them to determine whether to accept the complainant’s evidence, including with respect to the shower door glass. The judge did not repeat or endorse any suggestion that the absence of a challenge on this issue would assist in their task. There was no request made following the summing up for further directions to address any misconception that the prosecutor’s submission might have produced, and it is not obvious that further directions about this topic would have been to the advantage of the appellant. Having regard to the course of addresses and the summing up given by the trial judge, the prosecutor’s submission was not productive of a miscarriage of justice. 6 Whilst permission to appeal should be granted in relation to grounds 1 and 2, the appeal should be dismissed. Permission to appeal should be refused in respect of grounds 3 and 4. Background 7 The appellant and the complainant were domestic partners for several years. They moved in together at a house in St Marys from 2017 before moving into the appellant’s parents’ house in Flagstaff Hill in about 2019. From there they moved into a flat in Marion for a brief period. The complainant became pregnant at that time. Their child, a boy, was born in January 2021. By that time they had moved to a house in Mitchell Park where they lived for about a year, before then moving to Morphett Vale and then, eventually, back to the Marion address which they shared with other housemates. After that, the complainant moved back in with her parents for a time and, subsequently, she spent some time living with a friend in Morphett Vale. She later moved to an Aberfoyle Park address with her new partner. 8 The complainant gave evidence that the appellant was frequently physically abusive towards her. The first episode of violence occurred when they were living in St Marys and came against a background of verbal arguing. The physical assaults continued after that. The appellant would kick and punch the complainant. It happened so often she could not recall every occasion. 9 The complainant had been a user of cannabis. As time went on, she began to use methamphetamine recreationally with the appellant, mainly on weekends. It was common ground that their relationship became ‘toxic’, but the appellant denied he had been physically abusive. 10 The first charged episode of violence was count 2, in respect of which the appellant was found guilty. This was in late February 2021, when their son was 4 (1893) 6 R 67. -- 4 of 30 -- [2026] SASCA 62 The Court 3 several weeks old. The complainant attended hospital on the morning in question with significant facial wounds. 11 It is not necessary to canvass the detail of the evidence relating to the other counts which alleged, variously, aggravated assault, damaging property, creating a likelihood of harm and reckless and dangerous driving. In general terms, these charges involved alleged violence towards the complainant and damage to her property. 12 The last charged event was in February 2023. The appellant was arrested in March 2023. The trial was heard over several days commencing on 1 May 2025. The evidence in relation to count 2 13 In her evidence in chief, the complainant said that on the morning in question, there was an argument about car keys. The appellant was irate and pacing around. They were both yelling at each other. 14 The appellant threw a mug at her and it struck her on the elbow. It hit the ground and the handle fell off. There was more screaming and shouting and the appellant charged towards her. She was standing near a coffee table. When she saw him charging over, which he had done before, she dropped to the ground and put her arms up to defend herself. He was on top of her, punching and kicking. He grabbed a plate from the coffee table and smashed it over her face. He stepped off her and stood back. The complainant said she had felt a sensation that was different to a punch. Her adrenaline was running. She said: I’ve sat up because I was on my back, so I sat up and the plate fell off me everywhere and I kind of looked down and I felt something warm kind of coming down my face and then blood dropped to the floor and then I got up and went to the bathroom and saw that my face was cut open, and I grabbed a towel and put it on my face and told him he needs to take me to the hospital. 15 The complainant saw the extent of the cut and said to the appellant ‘You need to take me to the hospital. I can’t fix this one’. 16 The appellant objected to the complainant being permitted to give evidence in chief about what (on her account) the appellant told her to say about the cause of the injury whilst they were driving to the hospital. That evidence was ultimately given in re-examination, once the cross-examination elicited the explanation she gave for her injuries at the hospital and subsequently to family members and others. That explanation was that she had injured her face by slipping and falling into the shower screen door. 17 The complainant gave evidence in chief of an occasion a couple of weeks before the day she suffered the facial injury, which was relevant to this general issue. She said on that occasion they were arguing and she tried to hide in the bathroom. The appellant pushed his way in through the door and because the -- 5 of 30 -- [2026] SASCA 62 The Court 4 shower screen was right behind the door, the shower screen popped out and broke. She said it ‘broke into cubes’. When asked what she meant by that, she said: A Little tiny cubes (INDICATES), like shower screens, I think that’s a safety feature they have. Q Were there any large pieces of glass. A No. Q Did you suffer any injuries as a result of the shower screen breaking. A No. Q In terms of the shower frame, once the glass had been broken, what was the state of the shower frame like, if that makes sense. A It was just a plastic frame. Q So it was made of plastic. A Correct. Q Were there any sharp edges on that plastic. A I wouldn’t say sharp to touch, so – Q Were there any pieces of glass left in that plastic frame. A No. Q I think you told us right at the start of your evidence Karu Crescent, that was a rental property. A That’s correct. Q Again, I don’t need you to tell us the details of it, but did that create any issues when you moved out of that rental, the broken shower screen. A Yes. Correct, it did. Q While you were still there, did you and [the appellant] get the shower screen repaired. A Yes. … Q Are you able to remember roughly how long you had no shower screen. A For at least a month. 18 In cross-examination, the appellant’s counsel put to the complainant that what had happened on 24 February 2021 was that the appellant had left very early for work following which ‘you fell through the shower door’. She responded ‘No, no way’. It was put that she rang the complainant in a hysterical state and that he -- 6 of 30 -- [2026] SASCA 62 The Court 5 returned and drove her to hospital with their child. She rejected that version which, as will be seen, reflects what the appellant said in his record of interview. 19 In the course of cross-examination, it was put to the complainant, and she accepted, that she had made a number of statements that were inconsistent with her trial evidence about the cause of her facial injury, and about the circumstances in which the shower screen door was damaged. 20 The complainant agreed that when giving evidence by telephone in a hearing in the Magistrates Court of South Australia in November 2021 in relation to an issue about the rental bond, she had said her facial injury of earlier that year occurred when she slipped and fell through the glass shower panel whilst showering. She said that there was a horrendous accident when she slipped on the shiny shower floor tiles as she was exiting the shower area, causing her to fall through the shower screen door and break it in the process. In giving that evidence, the complainant was reading from a statement. She said it had been written up by the appellant’s father. 21 The complainant also accepted that she had given a similar account when she attended at hospital on 24 February 2021, and that she had also told her mother, her father and the appellant’s parents the same story at the time. The same account was given to Dr Jones the following day even though Dr Jones had wanted to report it as domestic violence. The complainant insisted to Dr Jones that there had not been domestic violence because she was worried about the consequences for custody of her child. 22 The appellant’s counsel put to the complainant that she had said what she said to Dr Jones because it was the truth. It was also put to her that she had no motive to lie in the Magistrates Court proceeding. She explained that she was following the story that the appellant never hurt her. The appellant, his father and the complainant were attempting to avoid having to pay the full amount of the rental bond, apparently by arguing that the landlord’s insurance should cover or reimburse them for the shower screen replacement costs. The cross-examination of the complainant included this exchange: Q So are you saying you were lying under oath to obtain a financial benefit. A Yes, I did lie. I’m not proud of that. Q Well, on Thursday in this court you were categorical when you said you would never lie under oath to obtain a financial benefit. That was your evidence on Friday, wasn’t it. A I want my justice. 23 She was also cross-examined about the fact that her account of the earlier incident in which the shower screen was broken had not been mentioned by her in her first statement to police. -- 7 of 30 -- [2026] SASCA 62 The Court 6 24 The complainant said in cross-examination that the ‘excuse’ she gave to nurses and doctors at the Flinders Medical Centre, to the effect that she had cut her face on a shower screen, was something the appellant had made up in the car. 25 In re-examination, the complainant gave further evidence about the conversation and her thinking at the time: A Yeah, so I’m holding a towel in front of my face and I’m sitting there saying ‘What am I going to say to them? They’re not going to – they’re going to think, you know, something’s happened, obviously’, and he turned around and said ‘Say you fell in the shower screen’ because the frame is the only straight kind of cut that may be could possibly create something like this, so that was what we got – well, that’s what was – we agreed to say, or I agreed to say and, yeah. Q And that is what you said at the hospital when you got there. A That’s correct. Q Why did you go along with that version. A I was worried that I would lose [the child], and I also have not opened up about [the appellant] hurting me as well, so. 26 The complainant went on to explain that when she returned from the hospital there was no shower screen door on the shower and that that had also been the case before the incident with the plate; it had been like that since it was broken at least a couple of weeks earlier. 27 The agreed facts included that the complainant was admitted to Flinders Medical Centre at approximately 8.00 am on 24 February 2021 and that, upon examination, it was noted that she sustained two facial lacerations. They were described as clean sharp edges with no surrounding scratches or other skin defects. The first was around 9 cm in length and extended from her hairline down to her left upper eyelid. It extended down to her forehead bone and through the muscle of the forehead. The muscles around the eye were not damaged. The second was approximately 8.5 cm and extended from the left lower eyelid to her lower cheek. This laceration involved the fat underlying the skin. The complainant required surgical treatment for these injuries but did not suffer any nerve damage. 28 Photographs of the facial injury to the complainant, both before and after surgery, as well as a photograph showing the scar left on the complainant’s face, were admitted into evidence. 29 The appellant was arrested on 8 March 2023 and he participated in a record of interview on that date.5 In the course of the interview, the essence of the 5 An edited video showing relevant portions of the interview was tendered and a transcript which was marked for identification and used as an aide memoire was prepared. -- 8 of 30 -- [2026] SASCA 62 The Court 7 complainant’s account in respect of count 2 was put to the appellant for his comment. He said that was not what happened at all. He said: A … nah I was like on my way to Middleton like on a job I had just like spoken to my boss who like packed my tools and like I get a call in the morning like it just rang like she’s slipped in the shower, that’s what like fucking I got told. And like I got told it was my fault because I didn’t have any bath mats and she’d been telling me to get bath mats for ages but like yeah. … A I had to come back, I had to back from like going to Middleton at work and like. Q Okay. A Finding a, a, a huge mess and then like dropped my girlfriend to like the hospital and like look after my kid and like was told to like look after my kid like. And … … A Oh yeah, yeah got all these like um phone calls and then like, um I pick up the phone, like what do you want and then she’s like screaming and all this shit like saying I need to come home, and I thought she was like stalling me up from work. At the end of the day … like she came home and thinking it was like fucking full of shit. Q Did she explain to you on the phone why you … to come home? A No I couldn’t hear a fucking word she was saying it was just all like screaming like yardah, yardying you come home like. Q Okay. A Yeah just a whole bunch of panicking like you know. Q Right. A And um yeah so I went home and then like she was like I need to go to the hospital, the hospital and like. Q So. A I started having a panic attack because like I had no idea what, like had happened and I was like that doesn’t look fucking good like. And then. Q So, so you’ve gone back home and you, where, where. A Yeah, yeah. Q Explain to me what you’ve seen. A I’ve gone back home and like she’s sitting there in like living, like in like the kitchen like with a towel on her face. Q Okay. -- 9 of 30 -- [2026] SASCA 62 The Court 8 A And um she was like I need you to take me to the hospital now um you need to look after [the child] today. … A There’s blood from there to um, to the actual like shower. … Q Alright. Did she explain to you what happened? … A Oh well nah she was like, oh to be honest like she was like panicking and all that and I was more like telling her to like, like what’s happening like cost like I couldn’t see like the damage and like I know one thing about when um, like I know one thing about if you like gash your face cos like I’ve split my eyebrow before. Q Yep. A It’d be like, if you panic it intent and you like open and your mouth and all that and you start trying to talk it can actually like make it a lot worse than what it initially was. … Q In the, in the time after that did she explain how the injury happened to you? A Yeah oh look well clearly there was a broken shower screen. Q There was a broken shower screen was there? A Yeah, yeah, yeah, yeah, yeah. Q Oh okay. A The broken shower like. Q Right. A Yeah she broke the shower screen … Q How did, how did that happen, did she explain to you how that happened? A Oh well she was running like the um shower. Q Yep. A On like with the shower door open and like. Q Yep. A Like I said she was blaming me and like the senses like, I don’t know I was lousy I didn’t buy home things like bath mats and all like that you know. Q Yep. -- 10 of 30 -- [2026] SASCA 62 The Court 9 A It’s like, I was buying baby stuff. And she’d been telling me to buy a bath mat and like you know she left like the water like cranking with the door open and like. Q Yep. A One thing happened and another it’s sort of like made her slip that’s what I, I’ve gathered. Cos I’ve always been told off about like not getting a bath mat and shit. Q Okay. Did she explain to you how she tripped and slipped and? A Yeah. Yeah, yeah, yeah. Q Yep and what did she say? A She, she walked in and she’d slipped and like landed in to like the screen. … Q But you didn’t take any photos of the broken glass or anything? A Nah like to be honest like I was more focussing on about like having like, like looking after my kid like you know like not … Q No not immediately but I meant like in the days coming. A Nah to be honest like nah. Q No, oh okay. Who cleaned up the glass and the blood? A We both did. Q You both did. A Yeah. 30 The appellant did not give evidence or call any evidence at the trial. Prosecution address 31 The prosecutor commenced his address by telling the jury that while he would make some suggestions to them about the ways in which they might approach the evidence and what they might make of it, it was entirely a matter for them because they, and they alone, were the judges of the facts in the trial. He urged them to apply the qualities that they had well before they walked into the courtroom, being their individual life experiences and common sense. 32 The prosecutor said that the jury’s assessment of the complainant was fundamental because if they found her to be honest, credible and reliable and her evidence to be acceptable, the charges would be made out. Hers was the key evidence in the case. 33 In making further submissions about the complainant’s evidence the prosecutor acknowledged that in various respects the complainant had not ‘painted -- 11 of 30 -- [2026] SASCA 62 The Court 10 herself in glory’. Reference was made to her methamphetamine use, a charge of drug trafficking, and a concession of an occasion where she accepted throwing a saucepan at the appellant. The prosecutor acknowledged that the complainant had accepted in cross-examination that she had lied on oath in the bond dispute. 34 After summarising the complainant’s evidence concerning count 2, the prosecutor made the following submission, which included a passage (underlined in the extract) which is the focus of ground 2. This is probably a convenient time to address you on what the defence say was the actual cause of this injury. The defence say that she slipped and fell in the shower. Indeed, she admitted to you that she said this in a statement that she gave in relation to some proceedings about their bond. The accused also says that she slipped and fell in the shower in his record of interview, which I'll come back to shortly. But crucially, you've got her explanation for this. She told you that while she was sitting in the car with the towel on her face, the accused said to her 'Say you fell into the shower screen'. She told you that the accused told her to say she slipped and fell in the shower. She complied with that request and she gave that version to the hospital because she was worried about losing Ethan and that at that stage she'd not opened up about the accused hurting her. Now I anticipate you might hear a submission from Mr Mead to say well you would have expected to see some more injuries on her, like other scratches from the plate or bruises from the punches and kick. I say you should approach that submission with caution, because there could be any number of reasons why bruising or other injuries wasn't observed. For example she told you that her hands were up trying to protect herself at the time. If I can turn now to what the defendant told you in his record of interview when he was asked about this particular incident. You might think that there are quite a few issues with the version that he offered you. In my submission, the version he's offered you lacks any credibility. In his record of interview, he says that he was on his way to Middleton, that he'd got a call that she'd just slipped in the shower and that she told him it was his fault for not getting bath mats. He goes on and says 'No, I couldn't hear a fucking word she was saying. It was just all like screaming and yadda, yadda you come home'. He came home to find her with a towel on her face and said that she just kept blaming him about the bath mats. He says 'She's been telling me to buy a bath mat and she'd left the water cranking when she walked in to the shower'. He then goes on again and says 'One thing happened and another and it sort of like, it sort of like made her slip, well, that's what I gathered because I've always been told off about not getting a bath mat'. Well you might wonder, members of the jury, if immediately after suffering a cut to her face of the kind that you can see in Exhibit P2, whether the bath mats would have been the first thing on her mind. When he's asked about who cleaned up the blood on the glass, he responds 'We both did'. So is that a suggestion that [the complainant] and him both cleaned up all the blood on the glass while she was holding a towel over her face that was pouring blood and did that all happen before he took her to the emergency room? He also says that she walked in and she slipped and landed into the screen of the shower. And here, members of the jury, there are some big issues here with this account. Firstly, you've got before you the way that the shower door opens. You can see that in the exhibit -- 12 of 30 -- [2026] SASCA 62 The Court 11 of the shower, both with the shower door on and the shower door off. It opens outwards and towards the bathroom door. If you picture her walking in to the shower, for her to slip and then hit her face on the shower screen so hard that it not only smashed, but it caused that wound that we see in P2. More importantly, think about your own life experiences and your own common sense. We've probably all slipped on a wet floor in our lifetimes. Members of the jury, when was the last time you slipped on a wet floor, but well forwards? As a matter of logic, you might think you'd actually slip and fall backwards. That would mean that the back of your head would be what hit something, not the front of your face. Now, [the complainant] also told you about the incident where the shower screen did in fact get smashed, that it occurred a couple of weeks prior. There are a couple of crucial pieces of this story. She told you that the glass shattered into tiny little cubes and she told you that she thought that was a safety feature of shower screens. She also told you that the frame was only made of plastic. Now it was never suggested to her that the glass broke in any other fashion or that the frame wasn't made of plastic. On that basis you can accept her evidence on that. But further to that, it's those kind of little details that, in my submission, lends further support to her evidence that she's telling the truth. That piece of evidence also serves to explain to you where the shower story came from that she told the hospital. But it begs the question though, members of the jury, that if this story that the accused has offered you is true, what exactly did she hit her face on on the shower screen to slice it open in the way that we see in P2? If you look at that photo, in comparison with Exhibit P6, that's the photo of the shower door, if you look at those photos side by side, that laceration, the defence will say to you, was caused by the shower screen that we can see. I remind you in the agreed facts, that laceration was down to the bone on her forehead. Is it really a possibility that one of those tiny pieces of glass or that plastic frame cut her forehead down to the bone? Think about the kind of force you'd have to fall on something to cause a wound that deep, let alone falling and landing on something made of plastic. Not to mention that if indeed her falling over was the cause of the shower screen breaking, well that must mean that the shower screen was intact when she came into contact with it. So she actually would have hit a flat glass surface not something sharp. So even if it did break when she hit it, it just makes no sense that she possibly could have suffered a laceration like that. In short, members of the jury, there's just so many problems and inconsistencies with that version of events that you should find that it lacks any credibility and you can put it to one side completely. Now putting that account to one side, you still need to come back to the prosecution case and you still need to be satisfied of the prosecution case beyond reasonable doubt. So, think about the sharp or jagged edges that a broken dinner plate might have. As a matter of common sense, I say that the sharp edges of a broken plate might cut your skin far deeper than the plastic frame of a shower. Think about the specific nature of this allegation. The use of a dinner plate to assault someone you might think is pretty unique. -- 13 of 30 -- [2026] SASCA 62 The Court 12 35 After the prosecutor’s closing address, the appellant’s counsel raised concerns about aspects of it. First, complaint was made about the prosecutor’s submissions about what was physically likely in relation to the mechanism of the injury. Objection was also taken to the underlined passage. Clarifying his position, the prosecutor said: It’s in relation to the manner in which the shower screen broke. There's two competing submissions. The prosecution say that the shower screen broke some weeks prior to 24 February, the defence case is that the shower screen broke on 24 February. That submission was directed solely at the manner in which that shower screen shattered. It's not the case that it broke into great large pieces of glass shard, if that makes sense. 36 Counsel for the appellant then said: Your Honour, what I say to that is that the entire incident where that is claimed to have happened was challenged. It's, therefore, not necessary for me to put to the witness such as it didn't shatter into little tiny cubes when I put that it didn't happen. It doesn't mean there's an acceptance of, when the defence version is put, that it's therefore accepted that that's what happened on that occasion. 37 The trial judge then commented: I understand, Mr Mead. I had proposed to deal with that because I don't think the jury should be left with the impression that, simply because something isn't specifically challenged, they can therefore accept it. So what I am prepared to say is something to the effect of the evidence about the shower screen constitution was this, [the complainant’s] evidence was that it shattered in this way, that the frame was plastic, Mr Mead put to her that the incident in which she said the shower screen was shattered did not occur again, it is a matter for the jury to determine whether they accept her evidence or not, whether it was or was not challenged doesn't matter, it's for them to decide whether they accept her evidence on that. I've just said that off the top of my head, but I think their attention needs to be taken to, simply because something isn't specifically challenged, doesn't mean they necessarily accept it, and the defence did, in fact, challenge the occurrence of the shower screen breaking in the way she described it at all. 38 There was then some further discussion, in the course of which the following exchange occurred: HER HONOUR: So, Mr Mead, then, presumably you propose to say that an alternative hypothesis consistent with innocence is that that slash happened in the course of a fall in the shower? MR MEAD: Yes. A fall through the shower screen door, but not onto a plastic frame. HER HONOUR: So that's the alternative hypothesis that you are going to suggest? MR MEAD: That it's a glass panel shower screen door. HER HONOUR: Yes. MR MEAD: And that the complainant has fallen somehow through the door. -- 14 of 30 -- [2026] SASCA 62 The Court 13 HER HONOUR: Yes. A door which she says when it shatters shatters into tiny squares, it has that characteristic about it. You want the jury essentially to consider the possibility that she's cut her face against a big shard of glass? MR MEAD: Yes. HER HONOUR: When the only evidence before the court is that that glass has the characteristic of shattering into tiny squares, and presumably your client having been present at the clean-up was in a position to give you instructions about that that probably should have been put. If that's a scenario that you want the jury to consider, accepting for the moment the defence scenario that he wasn't there, he agrees in his interview that he was there and he cleaned up the glass, why do you say that didn't need to be put? You now want the jury to assess whether a larger piece of broken glass could have caused that injury, that's right, isn't it? MR MEAD: Yes. HER HONOUR: So why was that not put, that in fact the glass did not have that characteristic, or did have the characteristic of shattering into large pieces? MR MEAD: Your Honour, perhaps it should have, but the reason it wasn't at least is that that whole episode was put that it was a fabrication. HER HONOUR: You want to put a positive explanation for what is objectively an injury to her face, yes? MR MEAD: Yes. HER HONOUR: That it was lacerated by a piece of glass? MR MEAD: Yes. HER HONOUR: And the existence of a piece of glass, or that that shower screen shatters into large pieces, was something that the complainant gave evidence about and was not challenged? MR MEAD: Yes, in the context, of course - I don't want to repeat myself, I accept what your Honour is saying - but in the context of challenging the entire incident. HER HONOUR: All right. I think I'll hear from you, Mr - I'll hear your address, Mr Mead, and I'll just have to consider it in the context of how the defence case is put and what I say about those issues. Do you want to get the jury in? 39 As will be seen, in the appellant’s closing address, the jury were not specifically invited to entertain the reasonable possibility that the glass door broke in such a way as to produce a big shard of glass. The appellant’s counsel pitched the innocent hypothesis in more general terms. Defence address 40 In the course of the appellant’s address, his counsel emphasised that the prosecution relied entirely on the evidence of the complainant. The jury were told -- 15 of 30 -- [2026] SASCA 62 The Court 14 they ‘would need to be satisfied both in relation to her honesty and her reliability before [they] could consider convicting the accused of these offences’. 41 Counsel then submitted that a difficulty with being so satisfied was that, by her own admission, she had been willing to perjure herself. Counsel developed a number of criticisms of the complainant as a witness. 42 In the context of count 2, the appellant’s counsel made a number of submissions about the credibility of the complainant’s account before submitting: Members of the jury, in my submission, although it's a matter for you, but you might find it difficult to think or come to the view that those injuries were caused by being hit over the head with a plate. Indeed, although it's a matter for you, you might think they're more likely to have been caused by falling through or into a glass panel door, because there is no bruising in relation to that laceration, there is no other injury to the surrounding skin, there's no scratches on the side of her face. So, in my respectful submission, what Mr Smith says in his record of interview is consistent with the injuries that [the complainant] ultimately sustained. Summing up 43 The judge commenced her summing up to the jury by emphasising that although she would highlight some aspects of the evidence and the arguments, the facts were entirely a matter for them, and their view of the facts must prevail.6 The judge gave standard and appropriate directions regarding the burden and standard of proof and the right to silence. The jury were told that the appellant’s decision not to give evidence was not to be used against him and did not make the prosecution’s case stronger.7 44 The judge then said that in considering the verdict one of the really important things was to assess the credibility and reliability of the complainant. The jury were given assistance in relation to those concepts. The judge then gave directions about the elements of the offences, relating them to the particularised charges.8 45 The judge gave an overview of the complainant’s evidence and, along the way, gave some directions about aspects of her evidence. In the course of this summary, the judge referred to the inconsistent explanations of the injury the subject of count 2 and the fact that the complainant had, on her own account, given false evidence in an earlier court hearing. The judge referred to the complainant’s evidence to the effect that on the earlier occasion when the shower screen was broken, the door was of a type that would shatter into tiny pieces on impact so as to eliminate or reduce the chance that someone would be cut by broken glass in an accident. The judge said:9 6 Summing Up, p 1. 7 Summing Up, p 2. 8 Summing Up, pp 4-12. 9 Summing Up, p 15. -- 16 of 30 -- [2026] SASCA 62 The Court 15 Now her evidence of that feature of the glass can be used by you, if you accept it, when you assess the accused’s version of events that her facial injury was caused by a fall in the shower when he was not home. 46 After giving some directions about the uncharged acts,10 the judge went on to make some observations regarding the cross-examination of the complainant and the inconsistencies in her evidence, as well as aspects of her evidence that she had not mentioned in her initial account to police.11 47 In respect of count 2, the judge recounted the inconsistencies in relatively detailed terms. In a passage extracted later in these reasons, the judge gave a forthright direction about the significance of the complainant having previously, on her account, lied on oath.12 48 The judge then gave a direction about the suggested motivation for the complainant to have lied.13 That direction concluded with the jury being told that even if they rejected the motive to lie that did not strengthen the prosecution case. The complainant’s evidence was not more credible or believable simply because they might reject the reasons advanced for her to have told lies. 49 The judge then referred to the appellant’s account contained in his interview. Standard directions were given in relation to the mixed and unsworn nature of the statement made by the appellant. In respect of count 2, the judge outlined the appellant’s version of events. The jury were instructed about the limited way in which they might reason if they concluded an aspect of that account was a lie. They were also told that:14 Even if you reject what the accused had to say as a reasonable possibility, you must still examine the evidence called on the prosecution case carefully and assess whether that evidence satisfies you of the elements of the offence or offences beyond a reasonable doubt. 50 The judge then turned to undertake a brief review of the addresses of counsel. In reminding the jury of the arguments made by the prosecutor, the judge did not refer to or repeat the prosecutor’s submission that there had been no challenge made to the complainant’s evidence about the way in which the shower screen glass broke. In summarising the appellant’s submissions, the judge again reminded the jury about the evidence she had given in the Magistrates Court and the absence of other injuries consistent with the complainant’s account respecting count 2. The judge recounted the appellant’s submission that the appearance of the laceration was consistent with falling through a shower door.15 The judge said that:16 10 Summing Up, pp 20-22. 11 Summing Up, pp 23-27. 12 Summing Up, p 25. 13 Summing Up, pp 27-29. 14 Summing Up, p 33. 15 Summing Up, p 34. 16 Summing Up, p 35. -- 17 of 30 -- [2026] SASCA 62 The Court 16 Mr Mead concluded by asking that you carefully examine the evidence of [the complainant] because her evidence is the crux of the prosecution case and he submitted that you simply cannot rely on her evidence to prove the charges beyond reasonable doubt. 51 After the summing up was concluded, the appellant’s counsel requested a Robinson direction. No complaint was made, nor was any request made for a re- direction, concerning the prosecutor’s submission about the failure to have challenged the complainant’s evidence about the nature of the shower screen and the way in which it broke. Ground 1 52 Ground 1 complains that the trial judge erred by failing to direct the jury that they should scrutinise the evidence of the complainant with great care before they could arrive at a finding of guilt. 53 In written submissions, the appellant submitted that the complainant’s asserted motive to lie, her admission of having given evidence in a previous proceeding consistent with the appellant’s record of interview, the serious nature of the charges and the fact that the prosecution case was totally dependent on the complainant’s evidence, meant that it was ‘vital’ to direct the jury of the ‘need to scrutinise with great care the evidence of the complainant before arriving at a conclusion of guilt’.17 54 In an amended notice of appeal filed shortly before the hearing, the appellant provided ‘particulars’ of that contention, as follows: 1. The multiple purported motives to lie of the complainant. 2. The complainant having contact with the applicant after the incidents the subject of the charges. 3. The delay and timing in making any complaint. 4. The lack of other injuries consistent with the description of the attack the subject of the recklessly cause serious harm count. 5. The complainant had previously given sworn evidence and provided a totally different account relating to the charge of recklessly cause serious harm. 6. The evidence of the complainant that she had perjured herself on a previous occasion. 7. There existed an inherent contradiction between the evidence of the complainant that she would never perjure herself for financial gain and her subsequent evidence that the reason she perjured herself was for financial gain. 8. The reliance of the prosecution case on the evidence of the complainant. 17 Citing Robinson v The Queen (1999) 197 CLR 162 at [26] (the Court). -- 18 of 30 -- [2026] SASCA 62 The Court 17 55 On the hearing of the appeal, the appellant relied upon the written submissions and advanced no oral submissions in relation to ground 1. Scrutinise with care direction 56 In Robinson v The Queen (‘Robinson’),18 the High Court referred with approval to the observations made by Lee J in R v Murray,19 to the effect that there are cases in which, whilst it is either unnecessary or inappropriate to direct the jury that it would be unsafe to convict on the basis of uncorroborated evidence, it is appropriate to ‘stress upon the jury the necessity for the jury to be satisfied beyond reasonable doubt of the truthfulness of the witness who stands alone as proof of the Crown case’.20 In that case, Lee J said that:21 In all cases of serious crime it is customary for judges to stress that where there is only one witness asserting the commission of the crime, the evidence of that witness must be scrutinised with great care before a conclusion is arrived at that a verdict of guilty should be brought in; but a direction of that kind does not of itself imply that the witness’ evidence is unreliable. 57 In Robinson, the Court identified a number of features which, in combination, demanded a ‘scrutinise with care’ warning. They included the young age of the complainant at the time of the alleged offences, the long period that had elapsed before complaint, the inconsistency in some aspects of the complainant’s evidence as to whether penetration occurred, the absence of any evidence of a conversation of any kind at the time or after the alleged conduct, or of any threat or warning not to tell anyone, the fact that the appellant and the complainant maintained an apparently harmonious relationship, the absence of any suggestion of later misconduct, and the fact that the complainant’s history may have indicated a degree of suggestibility on the part of the complainant.22 Their Honours said:23 Taken together with the absence of corroboration, these matters created a perceptible risk of a miscarriage of justice which required a warning of a kind which brought home to the jury the need to scrutinise with great care the evidence of the complainant before arriving at a conclusion of guilt. That warning should have referred to the circumstances set out above, and should have been expressed in terms which made clear the caution to be exercised in the light of those circumstances. 58 Whilst ‘scrutinise with care’ directions have most commonly been given in cases of sexual assault,24 that is not to imply that complainants in such cases are, as a class, unreliable. It may be added that there can of course be no such assumption in the case of domestic violence complainants. It is necessary to 18 (1999) 197 CLR 162 at [21] (the Court). 19 (1987) 11 NSWLR 12. 20 (1987) 11 NSWLR 12 at 19. 21 (1987) 11 NSWLR 12 at 19. 22 (1999) 197 CLR 162 at [25] (the Court). 23 (1999) 197 CLR 162 at [26] (the Court). 24 Laughton v R [2019] NSWCCA 74 at [33] (Meagher JA, Button J agreeing). -- 19 of 30 -- [2026] SASCA 62 The Court 18 consider whether there are particular features of the case that give rise to a perceptible risk of miscarriage in the absence of a scrutinise with care direction. 59 A direction is most likely to be required where the reason for scrutiny (and the perceptible risk of miscarriage) is apparent to the court but may not be well- appreciated by the jury.25 Where such a direction is said to be called for, counsel will usually be expected to articulate the grounds relied upon.26 As was said in R v Reynolds:27 The functional purpose of the Robinson direction is to convey to the jury the importance of cautiously scrutinising the evidence of the complainant. As the Robinson direction is of a special and exceptional nature, it will generally only be required in circumstances where the factual matrix giving rise to the ‘perceptible risk’ is outside the ordinary experiences of the jury. Accordingly, although not a substitute for the ‘perceptible risk’ test, a cogent indicator of the need for a Robinson direction is the existence of a forensic disadvantage to the accused emanating from the factual matrix which is perspicuous to the trial judge, but not necessarily to lay members of the community. 60 A ‘scrutinise with care’ direction might also be appropriate where, although there are numerous bodies of evidence, proof of guilt, or proof of an element, depends critically upon the jury’s acceptance of a particular witness as credible and reliable and where, absent such a direction, sight might be lost of that fact. In such a case, the direction serves to highlight that no amount of evidence relating to other issues or elements of the offending can bolster the evidence which requires scrutiny. In cases of that kind, the direction performs a function similar to a Shepherd direction.28 61 Even in cases where the reason for the direction is a feature of the evidence that the experience of the court suggests requires that it be drawn to attention, the purpose of the endeavour is not expressly or implicitly to discourage the jury from relying on the evidence, but is instead to reinforce the standard of proof in cases where proof depends substantially or in whole upon acceptance of the testimony in question. The object is to ensure that the jury properly engages with a consideration of whether critical evidence can be accepted so as to provide a secure foundation for any guilty verdict, not to steer the jury away from doing so. It should not amount to a judicial comment on the facts.29 62 It follows that the question whether the absence of a ‘scrutinise with care’ direction amounts to a miscarriage of justice30 involves not only a consideration of 25 AL v The Queen (2017) 266 A Crim R 1; [2017] NSWCCA 34 at [76]-[90] (Leeming JA, Schmidt and Wilson JJ), referring to Tully v The Queen (2006) 230 CLR 234 at [178] (Crennan J) and R v GW (2016) 258 CLR 108 at [50] (the Court). See also Laughton v R [2019] NSWCCA 74 at [39] (Meagher JA, Button J agreeing). See also R v FAL [2017] QCA 22 at [50]-[51] (Gotterson JA, Morrison and Philippides JJA agreeing). 26 cf. Laughton v R [2019] NSWCCA 74 at [36] (Meagher JA, Button J agreeing). 27 [2015] QCA 111 at [39] (Carmody CJ, Fraser and Gotterson JJA relevantly agreeing) (citations omitted), referred to with approval in R v Brown [2020] QCA 159 at [64] (Morrison JA). 28 Shepherd v The Queen (1990) 170 CLR 573. 29 cf. R v Tong (a pseudonym) (2021) 9 QR 571 at [32] (Sofronoff P). 30 Criminal Procedure Act 1921 (SA), s 158(1)(c). -- 20 of 30 -- [2026] SASCA 62 The Court 19 the evidence but the addresses and the summing up as a whole. Where the parties’ addresses and the summing up highlight that acceptance of the complainant’s evidence as credible and reliable is critical to a conclusion of guilt beyond reasonable doubt, where the challenges to that evidence are thoroughly canvassed in the addresses (and in any summary of them given by the judge), and where those challenges involve issues that a jury with its collective experience ought be able to grasp, the absence of a direction is not likely to be productive of a miscarriage. 63 It also follows that if there is other evidence that provides some support for the complainant’s evidence, a direction which might suggest that the jury has to be satisfied beyond reasonable doubt of the complainant’s evidence standing alone is unnecessary and potentially unfair to the prosecution. 64 Thus, in Kendall v The King,31 whilst the prosecution case substantially depended upon the evidence of a complainant who was young when the alleged offending occurred, and whilst the trial occurred several years after the last alleged offending occurred, the decision by the trial judge not to accede to a request to give such a direction (made after the summing up had concluded) did not produce a miscarriage. In that case, the orthodox directions about the burden of proof had been given, as had a forensic disadvantage warning. The trial was short and the addresses and summing up clearly identified the issues relevant to whether the complainant’s account should be accepted. As well, there was some independent support for an aspect of the complainant’s evidence.32 The present case 65 In the present case, the complainant was neither a child nor an alleged victim of a kind of abuse which, by reason of its nature or any delay in its reporting, could not be medically verified or falsified. There was clear evidence of an injury. It was for the jury to determine whether the injury was consistent with the rival hypotheses. Both counsel made submissions about this. The prosecutor chose to focus on the nature of the wound, suggesting it was more consistent with a broken plate than the way in which a shower door would shatter. The appellant chose to focus on the absence of the other injuries that might have been observed if the wound had been caused in the course of an assault of the kind the complainant described. 66 Unlike in Robinson, the complainant’s sworn account of the relevant incident contained no internal ambiguity, and was not apparently out of the blue or in the context of an otherwise harmonious relationship. 67 There were, of course, proper grounds for the challenges made to the complainant’s credibility. These arose not only in the context of a suggested motive to lie, but from the complainant having made an inconsistent statement about the cause of her injury to medical staff, to her parents and indeed, on oath, 31 [2024] SASCA 54. 32 [2024] SASCA 54 at [63]-[69] (the Court). -- 21 of 30 -- [2026] SASCA 62 The Court 20 in a rental dispute in the Magistrates Court. The complainant’s explanation for why she gave a false account and the ‘back story’ (the earlier incident in which the shower door was broken) were well-ventilated before the jury, as was the submission that the earlier incident had not been mentioned in the complainant’s first statement to police. 68 The question is whether in the circumstances of this case there were features of or dangers associated with the complainant’s evidence of a kind which whilst familiar to the court may not be well-appreciated by a jury, and by reference to which the jury needed to be told to scrutinise the evidence with care before reaching a conclusion of guilt. 69 In this case such a direction would not have required the jury to be told that it was dangerous for them to convict the appellant; it would have reminded them of the various challenges made to the complainant’s evidence and invited them to give those matters careful consideration because the prosecution case depended upon accepting her evidence. 70 In the circumstances of this case, it is hard to see what a direction of that kind would have added to the directions that were given. The judge reminded the jury on several occasions of the standard of proof. As has been noted, early in the summing up, the jury were told that ‘one of the really important things is assessing the credibility and reliability of [the complainant]’.33 This echoed the addresses of counsel. After summarising the effect of the complainant’s evidence, the judge turned to ‘talk a little bit about aspects of the cross-examination of [the complainant] and inconsistencies in her evidence’.34 That discussion continued for some time. Importantly, it included the following direction:35 So, members of the jury, those out-of-court statements to various relatives, to the hospital, and on oath to the Magistrates Court, are relevant to the weight that you are prepared to give her evidence. The fact that she previously, on her version, lied on oath on this same topic is a matter which you should give serious consideration. You should consider her explanation for the telling of those lies, but also the fact that she initially denied that she would ever lie under oath for a financial advantage. 71 The judge went on to draw attention to the fact that there were aspects of the complainant’s trial evidence that were not mentioned to police when she gave her first statement. After setting those out, the judge said:36 Defence argue that you should be cautious about the evidence of those incidents which were not mentioned by [the complainant] when she gave her first statement to the police. One explanation, of course, for the failure to tell the police about those incidents is that they were invented later and included in a later statement to augment her account, or not included in a statement at all. 33 Summing Up, p 2. 34 Summing Up, p 23. 35 Summing Up, p 25 (underlining added). 36 Summing Up, p 27. -- 22 of 30 -- [2026] SASCA 62 The Court 21 72 These observations were all made in the judge’s general summary of the issues and the evidence. The judge then gave a brief review of the addresses of counsel and, in the course of doing so, again reminded the jury of some of the defence submissions. Relevantly, the last words of the summing up were as follows:37 I turn to Mr Mead's address on behalf of the accused. He began his address with those important principles of law. He reminded you that for you to find the accused guilty on any count you must be able to rely on the evidence of [the complainant] beyond a reasonable doubt. He reminded you that on her own admission [the complainant] has lied on oath before and all you have in this court is her word for it that she is not lying now. He described this as the fundamental difficulty with the case. Mr Mead pointed out that when the accused was interviewed he gave detailed descriptions of the incidents giving rise to count 2 and count 6. In relation to the property damage, the driving and the stabbing with the fork, he could do no more than deny that they happened. Mr Mead argued there was some significance to that. There was nothing more the accused could say about something that was entirely made up. Mr Mead reminded you that before her lie in the Magistrates Court was specifically brought to her attention, she denied that she would ever tell a lie on oath for financial gain. He reminded you that there was no evidence of other injuries to [the complainant] on the occasion of her facial injury and asked you to consider that against her account that she was punched before she was struck with the plate. Mr Mead argued that the appearance of that laceration was consistent with falling through a shower door. In respect to count 6, Mr Mead reminded you that, the accused in his interview said he apologised to [the complainant] for jamming her hand in the door, an approach which was much more consistent with an accident than a deliberate assault. Mr Mead reminded you about the timing of [the complainant’s] statement to the police, which was preceded by the police search, her arrest for drug trafficking, issues about custody and access to [the child] and the lies about the facial injury. He reminded you about the fact that she had not mentioned some of the incidents that she described in evidence when she gave her initial statement to the police. Mr Mead concluded by asking that you carefully examine the evidence of [the complainant] because her evidence is the crux of the prosecution case and he submitted that you simply cannot rely on her evidence to prove the charges beyond a reasonable doubt. 73 The appellant’s counsel had not requested a scrutinise with care direction before the summing up. When it was requested, the bases upon which it was said to be required were that the prosecution relied upon a single uncorroborated witness, that the offending was serious, and that it may not be apparent to the jury that they must exercise great caution and scrutinise the evidence with great care 37 Summing Up, pp 34-35. -- 23 of 30 -- [2026] SASCA 62 The Court 22 given those factors. When prompted by a question from the judge, reliance was also placed upon the fact that the complainant had lied on oath before. 74 These matters were self-evident. They had been emphasised as part of the judge’s summary of the evidence, and had been emphasised in the recitation of the key points in the appellant’s counsel’s address. Neither the matters relied upon, nor the additional matters raised in the particulars to the ground of appeal, raised issues the proper assessment of which could be thought outside the capacity of a jury to evaluate, with their combined experience of life. 75 Further, had the direction been given when it was first requested, after the completion of the summing up (concluding, as it did, with a summary of the key defence arguments), it may have risked being perceived as a comment on the facts or an encouragement towards the defence case. The judge’s observation, that a ‘scrutinise with care’ direction is ‘the kind of direction that needs to be woven very carefully into a summing up and not tacked on at the end’, was understandable. Her contemporaneous assessment that the direction was neither required nor appropriate, whilst plainly not binding, is informative. 76 The complainant was the only non-formal witness. The trial was relatively short. Whilst the jury had to reject as reasonably possible the account contained in the appellant’s record of interview, the addresses and the summing up emphasised that even if rejected, it was necessary to be satisfied of the honesty and reliability of the complainant’s evidence about the incident. There was no material risk that the jury may have been distracted from scrutinising the complainant’s account. 77 In these circumstances, there was no miscarriage of justice by reason that the judge did not give a scrutinise with care direction. Put another way, there is no reason to doubt that the jury scrutinised the complainant’s evidence very carefully, including by reference to the issues mentioned in the appeal ground particulars, before reaching a verdict of guilt in respect of count 2. Grounds 2, 3 and 4 78 The appellant’s grounds of appeal asserted that: 2. A miscarriage of justice occurred because of the comment by the prosecutor in his closing address that the jury could accept the truth of certain matters because they had not been challenged in cross-examination. 3. A miscarriage of justice occurred because of the comments by the prosecutor in his closing address regarding the mechanism of falls absent any foundation for such comments. 4. A miscarriage of justice occurred because of the comment by the prosecutor in his closing address that the injury to the complainant’s face could not have been caused by a fall onto a plastic frame when that was not the defence position. -- 24 of 30 -- [2026] SASCA 62 The Court 23 79 The appellant’s written submissions dealt with these grounds together because they relate to one part of the prosecutor’s closing address, though they raise distinct issues. Ground 3 80 Ground 3 concerns a submission made about the likelihood of a person slipping forwards as opposed to backwards. The submission invited the jury to have regard to their own life experience of slipping on a wet floor. That was a legitimate submission. Whilst there was a brief exchange with the trial judge about that submission in the absence of the jury, the appellant’s counsel effectively withdrew any complaint about the submission. Permission to appeal should be refused in respect of this ground. Ground 4 81 Ground 4 complains that the prosecutor made submissions against the reasonable possibility that the injury was caused by the shower frame. The appellant says that this was not his case. As has been noted, the complainant gave evidence that, on the way to the hospital, the appellant had said something about the frame having the capacity to produce a straight cut of the kind she had suffered. It is true that the version of events actually put to the complainant in cross- examination was that she ‘fell through’ the shower door, but that formulation did not necessarily preclude that the shower frame had contributed to the injury. Moreover, since, on the appellant’s account, he was not present, and had only pieced together what occurred from the statements and reactions of the complainant, it was not unreasonable for the prosecutor to perceive the need to address a range of possible mechanisms for an injury involving the shower door. 82 In any event, to the extent that, by his closing address, the appellant focused upon the complainant ‘falling through or into a glass panel door’, it is difficult to see that any prejudice might have been engendered by the prosecutor’s submissions about the shower frame being plastic. It is possible to imagine cases where a prosecutor’s attack on a hypothesis that is, in truth, a straw man, may be unfair to the defence by tending to expose the defence position to ridicule. That is not this case. Permission to appeal should be refused in respect of ground 4. 83 At the hearing of the appeal, the focus of the appellant’s submissions was upon ground 2, for which there should be a grant of permission to appeal. Ground 2 84 The first aspect of the rule associated with Browne v Dunn38 is designed to achieve fairness to witnesses and a fair trial between the parties, and the second aspect relates to the weight or cogency of evidence.39 It is, however, a rule of 38 (1893) 6 R 67. 39 Bulstrode v Trimble [1970] VR 840 at 846 (Newton J), referred to in R v Rajakaruna (No 2) (2006) 15 VR 592 at [46] (Redlich JA). -- 25 of 30 -- [2026] SASCA 62 The Court 24 practice, which must be applied with care in criminal proceedings, given their accusatorial nature.40 85 In R v Costi,41 King CJ said:42 … Failure to comply with a rule of practice does not relieve the prosecution of its onus to prove every ingredient of the charge. But failure to comply with the rule may have a marked effect upon the view which the court and jury take of the evidence and the facts. How marked that effect is, will, of course, depend upon the circumstances. A trial judge is entitled, if he sees fit to do so, to direct a jury in strong terms as to the effect which failure to comply with the rule should have upon their view of the facts and the evidence, but he is not entitled, by reason of non-compliance with the rule, to withdraw an issue of fact from the jury nor to treat an ingredient of the charge as proved. 86 It is not always easy to determine whether the rule of practice has in fact been breached, and the effect of such a breach may vary from case to case. In some cases it may be proper to inform the jury that the failure to have put specific matters to a relevant witness may be taken into account in assessing the weight to be given to evidence about those matters. On one view, that should only happen if the prosecution has offered to recall the witness and the defence have declined the offer.43 Very rarely, it may be open to the jury to reject the possibility that the omission arose from counsel’s oversight or decision-making, such as to invite a conclusion of recent invention.44 87 It may be doubted whether, in view of the absence of a challenge to the complainant’s evidence about how the shower screen door did break, it would have been proper for the judge to give a direction as to the weight that might be given to a defence argument that the shower screen broke (or might reasonably possibly have broken) into large shards, rather than little pieces. 88 The complainant’s description of the glass shattering into small pieces was given in respect of an incident two or so weeks before the day of the facial injury, and it was clear from the cross-examination (and from his record of interview) that the appellant disputed any such incident occurred. Any further cross-examination about the way in which, in fact, the glass broke on that occasion would not have reflected the appellant’s case. 89 The appellant’s case was that on the day she reported to the hospital with facial wounds, the complainant fell into or through the shower screen glass panel. That was put to the complainant and it was denied. 90 That said, on the appellant’s account, they were both involved in cleaning up the glass in the aftermath, and would both have been in a position to observe the 40 MWJ v The Queen (2005) 80 ALJR 329; [2005] HCA 74 (‘MWJ’) at [41] (Gummow, Kirby and Callinan JJ). 41 (1987) 48 SASR 269. 42 (1987) 48 SASR 269 at 271. 43 cf. MWJ at [41] (Gummow, Kirby and Callinan JJ). 44 cf. Hofer v The Queen (2021) 274 CLR 351 at [32]-[33] (Kiefel CJ, Keane and Gleeson JJ). -- 26 of 30 -- [2026] SASCA 62 The Court 25 remnant shards. If and to the extent that the appellant wished the jury to consider the reasonable hypothesis that the shower door did not break (or did not break completely) into tiny cubes, this could have been put to the complainant. But since she denied that the occasion in question occurred at all, she was not deprived of a fair opportunity to comment. There was nothing which, on her account, she could say. 91 To the extent that the complainant’s evidence might be understood as having reflected a more general proposition about the composition or features of the shower door, again, she could have been challenged about that proposition, but it was also open to the appellant to treat that as simply her interpretation of the event she claimed to have earlier witnessed. The challenge to the earlier event therefore was a challenge to the basis for that interpretation. 92 In these circumstances, there was probably limited, if any, scope for any direction to be given by the trial judge about the significance of any further challenge to the evidence about the composition or properties of the screen door. 93 Of course, the judge gave no direction. The issue is whether the prosecutor’s submission was productive of miscarriage. That entails considering what the jury may have taken the submission to mean and then considering whether, in the broader context of the addresses and the summing up, there is a material risk that the jury were distracted from their task by reason of the submission. A miscarriage of justice is not established by pointing to an incorrect or inappropriate submission by a prosecutor. It is the possible or likely effect upon the jury at the point of their deliberations that must be the focus of the miscarriage inquiry.45 94 The submission in question, repeated here for convenience, was in these terms: Now, [the complainant] also told you about the incident where the shower screen did in fact get smashed, that it occurred a couple of weeks prior. There are a couple of crucial pieces of this story. She told you that the glass shattered into tiny little cubes and she told you that she thought that was a safety feature of shower screens. She also told you that the frame was only made of plastic. Now it was never suggested to her that the glass broke in any other fashion or that the frame wasn't made of plastic. On that basis you can accept her evidence on that. 95 The impugned proposition in the prosecutor’s closing address (‘[o]n that basis you can accept her evidence on that’) is capable of different interpretations. At one end of the spectrum it might have been understood as a suggestion that because the complainant’s evidence about the properties of the glass in the shower door was not challenged, it was required (by operation of some legal or other principle) to be accepted. At the other end of the spectrum, it might have been understood as nothing more than an observation that whilst many things were challenged, that evidence was not, and that it was open to the jury to accept the 45 See, eg, Singh v The King [2025] SASCA 98. -- 27 of 30 -- [2026] SASCA 62 The Court 26 evidence, perhaps without the complication of having to grapple with how effective or otherwise any challenge to the evidence was. 96 Whilst the words ‘on that basis’ might tend to support the former interpretation, the word ‘can’ (not ‘must’ or ‘should’) tends towards the latter interpretation. A lawyer with some awareness of the rule in Browne v Dunn might be more attuned to the first interpretation. A lay person may not be so quick to treat what was part of an argument about the facts as purportedly announcing any rule or requirement. 97 In circumstances where, at the outset of the prosecutor’s address, the prosecutor stressed that whilst he would be making suggestions to the jury about how they might approach the evidence, it was entirely a matter for them, the risk that the submission might have been understood as withdrawing an issue from their consideration, or as foreclosing their consideration of it, was much reduced. 98 In our view the jury would not likely have understood the submission as purporting to describe some rule or principle by which they might be bound to accept the proposition in question. The prosecutor’s submission was not couched in the language of legal rule or principle, and may be contrasted with the impugned submission in Brown (a pseudonym) v The King.46 In that case, the prosecutor had said that if a proposition isn’t put to a witness, ‘it means generally that you can accept what they’re saying is uncontested’ and that ‘what they said is, in fact, true’. That submission was prefaced by a remark that ‘[w]hile I’m on the topic of the law, I want to address the important consideration when it comes to evidence’.47 99 In the present case, the judge’s directions made clear that it remained for the jury to decide whether to accept the complainant’s evidence, including the evidence in question. To the extent that the jury might have wondered whether there was some rule requiring them to accept the evidence in question, the judge’s directions removed any such misapprehension. 100 That said, the jury may have understood the prosecutor’s comment in this case to be an argument that the failure to challenge the proposition was a positive reason to accept the proposition and, as has been explained, in the particular circumstances of this case, it is doubtful that a direction by the judge, to the effect that the jury may give less weight to any suggestion or evidence to the contrary of the proposition, would have been appropriate. The question then becomes whether the prosecutor’s argument was ultimately productive of a miscarriage of justice. 101 The following considerations, in combination, persuade us that it was not. (1) First, the jury would have appreciated that the relevant proposition was based upon the complainant’s claimed observations in connection with the earlier incident. The jury are not likely to have maintained a serious doubt about the 46 [2025] SASCA 40. 47 [2025] SASCA 40 at [196]. -- 28 of 30 -- [2026] SASCA 62 The Court 27 truth of that earlier incident yet acted upon her comment about the shower door glass. That is to say, they are not likely to have treated her evidence about the properties of the shower door as having any probative value or weight untethered from her account of what happened. (2) Secondly, in the appellant’s closing address, the jury were not distinctly invited to accept (or entertain the reasonable possibility) that the shower door broke into large shards of glass. For what are likely to have been sound forensic reasons, the appellant’s counsel urged that the injuries to the complainant were more likely to be caused by falling into or through a glass door than they were by a plate, and focus was also directed to the absence of injuries consistent with a broader assault. (3) Thirdly, and relatedly, once that course had been adopted, if the judge had sought to directly address and correct any wrong impression created by the prosecutor’s submission, this had the capacity both to confuse and perhaps undermine the approach taken by the appellant’s counsel, which was not to directly engage with the properties of the glass claimed by the complainant but to attack the complainant’s credibility and simply invite the jury to consider that falling into or through a glass door was more likely to cause the observed injuries than a blow by a dinner plate. After all, even if the jury thought the shower door was likely made of a glass designed to shatter into pieces with a view to reducing the risk of injury, they would not necessarily reject the possibility that if a forehead struck the glass with sufficient force to break it that a serious wound could be caused. (4) Fourthly, whilst the judge did not directly address the prosecutor’s submission, the summing up did make clear that the onus remained on the prosecution throughout. There was no explicit or implicit endorsement of any proposition that the jury might find their task easier by reason of the absence of a direct challenge to any particular evidence. (5) Indeed, when the judge directed the jury about how they might use the complainant’s evidence about the glass, this was qualified so as to make clear that it was a live question whether they would accept her evidence (‘her evidence of that feature of the glass can be used by you, if you accept it …’).48 (6) Following the summing up, counsel for the appellant did not request any further direction in relation to the submission that had been made by the prosecutor. Whilst by no means conclusive, that tends to suggest it was the assessment of those present at trial that, to the extent that the prosecutor’s submission may have had the potential to cause prejudice, this was no longer seen as a materially live prospect by the conclusion of the summing up.49 48 Summing Up, p 15. 49 cf. Bell v The King [2025] SASCA 97 at [305]-[306] (S Doyle and David JJA). -- 29 of 30 -- [2026] SASCA 62 The Court 28 102 The appellant’s counsel submitted that the judge had recognised, in the course of argument, that a correction was required, and that it was possible the judge then overlooked doing so. As has been noted, however, the judge said she preferred to consider the position after hearing the defence address. It is more likely that the judge took the view that, in the way in which issues had been joined, there was little need to hark back to the prosecutor’s submission, and perhaps some risk of unfairness to the appellant in doing so. In any event, for the reasons given, it has not been established that the prosecutor’s submission did occasion a miscarriage of justice. Disposition 103 Permission to appeal should be granted in respect of grounds 1 and 2, but otherwise refused. The appeal should be dismissed. -- 30 of 30 --