[36] The prosecution provided counsel for the appellant with a copy of HM's statement dated 12 July 2004 and HM was listed as a prosecution witness. At trial, however, the prosecution did not call HM. At the conclusion of the prosecution evidence, counsel for the appellant did not raise with the Magistrate the failure of the prosecution to call HM. No request was made to adjourn the trial to enable the prosecution to call HM or to give the appellant the opportunity to locate HM and consider calling her to give evidence. After a short adjournment the appellant gave evidence. No other evidence was called by the appellant.
[37] The transcript records that after the evidence was completed on 6 October 2004, discussion occurred concerning the rule in Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298. No detail is recorded in the transcript, but it is common ground that no request was made to adjourn the trial to enable HM to be located and called to give evidence.
[38] On 7 October 2004 the issue of HM's absence was again discussed in the context of a submission by counsel for the appellant that the Magistrate should draw an inference adverse to the prosecution on the basis of the rule in Jones v Dunkel. Counsel for the appellant submitted that the prosecution had a duty to produce all material witnesses and contended that HM "could have definitely shed some light on my client's story". In response, the prosecutor indicated that he had intended to call HM, but because she was an "itinerant long-grasser" the attempts to locate her had been unsuccessful. The prosecutor indicated he could call evidence in connection with attempts to serve a summons upon HM, but counsel for the appellant opposed the reopening for such a purpose. No evidence of attempts to locate or serve HM with a summons was given. Subsequently counsel for the appellant urged the Magistrate to draw an inference adverse to the prosecution by reason of the failure to call HM, but the Magistrate declined to do so.
[39] If nothing further had happened with respect to the version given by HM, while the appellant may have complained that the Magistrate erred in not drawing an inference adverse to the prosecution by reason of the failure to call HM, there would have been no suggestion that the trial was unfair or that a miscarriage of justice had occurred solely by reason of the failure of the prosecution to call HM. As circumstances stood at the conclusion of the hearing, on the material available to the prosecution and counsel for the appellant, had HM been called her evidence would have been adverse to the case for the appellant. In those circumstances, it is not surprising that counsel for the appellant did not complain about the absence of HM because it was to the advantage of her client that HM was not called to give evidence. Counsel made a forensic decision to take advantage of the absence of HM.
[40] Notwithstanding that counsel made the obvious forensic choice with respect to the absence of HM, on the appeal counsel for the appellant submitted that a miscarriage of justice had occurred because the prosecutor had failed to comply with the duty of the prosecution to call all relevant witnesses. This submission was divorced from any consideration of a later statement given by HM. It was also divorced from the application of the relevant principles to the facts of the case. It amounted to a submission that regardless of the circumstances and consequences, if the prosecution fails to call a relevant witness that failure amounts to a breach of duty and, necessarily, a miscarriage of justice will occur.
[41] The submission is without substance. The principles governing the prosecution duty with respect to the calling of witnesses are not in doubt. But the content of the duty must be determined according to the individual circumstances of the case. If a witness is likely to be adverse to a defendant and a defendant consents or does not object to the absence of the witness, it cannot be said that the prosecution is in breach of its duty to call such a witness. Similarly, if a breach of duty occurs, the question whether a miscarriage of justice has resulted can only be determined according to the issues at trial, the evidence that the absent witness would have given and the particular circumstances attending the failure of the prosecution to call the witness. The potential credibility of the evidence may also be relevant.
[42] The case under consideration is a good example of why a failure to call a relevant witness, in itself, might not amount to a breach of duty. As circumstances stood at the conclusion of the trial, it was to the advantage of the appellant that HM was not called to give evidence. Counsel for the appellant made a forensic decision to endeavour to take advantage of the absence of the witness. In these circumstances, it cannot realistically be contended that the prosecution was in breach of its duty or that the failure to call the witness, divorced from later events, necessarily gave rise to a miscarriage of justice.
[43] I return to the sequence of events. After submissions on 7 October 2004, the hearing was adjourned and did not resume until 26 November 2004. In the interim, police located HM at the home of the appellant. She told police that she met the appellant on the day of the accident and that she had subsequently visited the appellant occasionally. HM told the police that she regarded the appellant as a friend of hers. She said that she was with the appellant on 13 November 2004 at his home.
[44] On 14 November 2004 police took a second statement from HM. As to the circumstances of the accident, HM said: