Spence v The Queen

The appellant was convicted of murder in the Supreme Court of Victoria and appealed to the Court of Appeal. The appeal raised several issues concerning the conduct of the prosecutor during the trial and the credibility of a key prosecution witness. The respondent, the Crown, argued that the trial judge had correctly allowed the prosecutor's address to the jury and that the provisions of the Evidence Act 2008 had not been breached.

The central issues for the court were whether the prosecutor's repeated use of rhetorical questions in their address had the capacity to reverse the onus of proof, whether the language employed was intemperate or inflammatory, and whether the prosecutor's address improperly bolstered the credit of a prosecution witness granted immunity under s 128 of the Evidence Act 2008. The court considered these questions in light of established legal principles and relevant case law, particularly the decision in Palmer v The Queen.

The court held that the prosecutor's address, while robust, was within the bounds of propriety and did not infringe upon the principles set out in Palmer v The Queen. The rhetorical questions were found to be a legitimate part of advocacy, aimed at dismantling the defence case rather than reversing the onus of proof. The language used was not deemed intemperate or inflammatory, and the court recognised the robust nature inherent in the trial process. Furthermore, the granting of immunity to the prosecution witness under s 128 of the Evidence Act 2008 meant that the prosecutor's address did not unfairly bolster the witness's credibility, as per ss 55, 56, 101A and 128 of the Evidence Act 2008. The appeal was dismissed, and the conviction upheld.

The court made no orders regarding costs.