R v Apostilides

A short time later at police headquarters, Senior Detective Ryan told the applicant that he was investigating a complaint that he had raped a woman in Prahran on the previous evening. Throughout the ensuing interrogation and taking of a record of interview, the applicant insisted that the prosecutrix had been a willing and consenting party to acts of intercourse with him during the previous evening. He said that after they had intercourse an argument developed between them because she wanted him to leave as she was expecting friends from Portsea, and that he refused to go, calling her insulting and offensive names. During the argument she tried to push him out of bed, whereupon he grabbed her around the throat and pushed her. After she left the room, he fell off to sleep.

His Honour then described the relevant ground of appeal as

that the Crown's conduct in failing to call as witnesses Brodie and Tibballs and the manner in which the trial judge dealt with the Crown's failure were prejudicial to the applicant causing the trial to miscarry and continued: It is necessary to consider the course which the trial took.

The names of Brodie and Tibballs appeared on the presentment as additional witnesses. The prosecutrix was the first witness called. At the commencement of the second day of the trial and before Mr. Barnett, counsel for the accused, resumed his cross-examination of the prosecutrix, the Crown prosecutor announced that he had formed a judgment that Brodie and Tibballs should not be called as witnesses and that he had so informed defence counsel. Following the announcement, Mr. Barnett drew the trial judge's attention to the omission of the Crown prosecutor to advance any reason for his decision. Mr. Barnett stated that much of the cross-examination of the prosecutrix had been based on the contents of statements made by the two witnesses. Counsel submitted that, unless reasons for not calling the witnesses were disclosed, the Crown should be obliged to call them. During the course of discussion, counsel abandoned his submission but stated that he wished to consider whether the trial judge should call the witnesses on his (counsel's) application, so that he might cross-examine them. His Honour expressed doubt whether he had power to call witnesses. He advised counsel to conduct the defence case on the assumption that the likelihood of him (the trial judge) calling the witnesses was extremely remote. Mr. Barnett then resumed his cross-examination of the prosecutrix.

The Crown made available to the applicant's legal advisers copies of statements of both Brodie and Tibballs taken from them by police officers. Outside the Court, the applicant's legal advisers checked with each witness the contents of their respective statements.

When the Crown case closed, Mr. Barnett did not renew the application which he had foreshadowed. The applicant gave sworn evidence verifying and expanding the contents of his record of interview. Brodie, when called by the applicant's counsel, gave evidence substantially in accord with the contents of his police statement. During the course of cross-examination of Brodie by the Crown prosecutor, the applicant's counsel made application that he should be at liberty to cross-examine the witness by way of re-examination and that the trial judge should call Tibballs so that the witness might be cross-examined by both counsel. Disallowing the application, his Honour stated that he was not satisfied the interests of justice made it necessary for him to call either of the witnesses. The prosecutor continued cross-examining Brodie, adducing from the witness that, inter alia, eleven years previously in the County Court he was convicted of conspiracy and released on a bond to be of good behaviour.

Tibballs was then called in the applicant's case. She was cross-examined but briefly by the Crown prosecutor without any challenge being made to the veracity of her evidence. Neither in evidence in chief nor in cross-examination did she depart in any material particular from the matters set out in her police statement.

Brodie and Tibballs and the applicant were the only witnesses called by defence counsel.

During the course of the Crown prosecutor's final address to the jury the foreman asked a question. The discussion which followed and his Honour's answer to the question are matters which are not relevant to this appeal. What is significant in connexion with this ground of appeal is that, after replying to the jury's question and in their absence, his Honour, addressing the Crown prosecutor, expressed concern about the course the trial had taken. He drew attention to the circumstances that the Crown prosecutor, after cross-examining her, had described to the jury Tibballs' evidence as "a very credible account of the whole evening". His Honour reminded the Crown prosecutor that, by failing to call her as a Crown witness, the accused's counsel had been deprived of an opportunity to cross-examine Tibballs whose evidence the Crown had commended to the jury. After repeating that he had been left in a state of considerable unease about the way the trial had developed, his Honour volunteered that his decision to disallow the accused's counsel to cross-examine Tibballs might have been wrong. Counsel for the accused then made application that the jury be discharged. In the course of further discussion, his Honour said to the Crown prosecutor: " I think Tibballs should have been called by the Crown and that statement is in accord with the longstanding tradition that has applied, as you know, and I know, and everybody else knows, that witnesses who give a creditable [sic] account of the events, at least of significant events, would ordinarily be called by the Crown."

A short time later his Honour, again addressing the Crown prosecutor, said: "I must say that my present state of mind is that I think it would have been a fairer trial for the accused had Tibballs, at any rate, been called by the Crown. To say otherwise would be a misstatement of my feelings in the matter."

Following further protracted discussion the Crown prosecutor disclosed to the Court information upon which he had decided not to call as witnesses in the Crown case Tibballs and Brodie. Those reasons were as follows: first, the prosecutor had been informed by a member of counsel, who had a previous professional association with her, that the prosecutrix had been told by Tibballs that she had put herself into the defence camp and that she was inflamed by any attempt to get her to give evidence for the prosecution. The Crown prosecutor added that he suspected, as it had been subsequently confirmed in evidence by her, that Tibballs had maintained a romantic attachment with Brodie. Secondly, as a result of his enquiries made on the first morning of the trial, the Crown prosecutor had learnt that Brodie had engaged in schoolboy theft, that eight counts of false pretences preferred against the witness had been adjourned, and that he had been convicted of a charge of conspiracy.

In the absence of the jury, Senior Detective Ryan was then called as a witness. He swore that during the first day of the trial, while standing together outside the Court, Brodie had told him that the trial was more or less a foregone conclusion, that he knew the outcome, and that the accused would be found not guilty. Ryan further swore that when asked what made him say that, Brodie, smiling, said he would tell the police officer after the trial.

Further discussion between his Honour and the counsel ensued. His Honour refused the application to discharge the jury, adding that he did not consider that a high degree of need to do so had arisen.

It is clear from the judgments the subject of the present application that their Honours held a clear view of the way in which the learned trial judge should have handled the situation that was presented during the trial. The primary question was seen to be whether there were sufficient reasons for the prosecutor's decision not to call Brodie and Tibballs, it being implicit in such a question that the Crown can be required immediately after the close of the Crown case to defend its decision by expounding its reasons. After careful consideration, Kaye J. (with whose reasons the Chief Justice and Tadgell J. were in substantial agreement) concluded that the Crown's reasons were insufficient to justify its decision and that in the proper performance of his role the prosecutor ought to have called both Tibballs and Brodie as witnesses in the Crown case. His Honour considered that if the trial judge had followed the correct procedure he would have established that insufficiency at the close of the Crown case. Having invited the Crown, without avail, to call them, he would then himself have called and sworn both Brodie and Tibballs in turn and so made them available for cross-examination by the accused's counsel: see Reg. v. Lucas [1] ; Reg. v. Evans [2] . Because the prescribed procedure had not been followed defence counsel was constrained to call Brodie and Tibballs as his own witnesses, thereby losing the right to cross-examine them and exposing them to cross-examination by the Crown. In the result, Kaye J. concluded that the accused had been unduly prejudiced in the conduct of his defence and that a substantial miscarriage of justice had occurred. It should be added that there is no suggestion that the trial judge was empowered to direct the prosecutor to call the witnesses. The existence of that power was denied by the Full Court in Evans and the Court was correct in taking that view. As Gowans J. observed in Reg. v. Eastwood and Boland [3] : "It is apparent from the authorities that there can be no direction to the Crown to call the witness": cf., also, Skubevski v. The Queen [4] .

1. [1973] V.R. 693, at pp. 698, 706. 2. [1964] V.R. 717, at p. 719. 3. [1973] V.R. 709, at p. 714. 4. [1977] W.A.R. 129, at pp. 138-140.

The practice which was so clearly laid down by the Full Court in Lucas finds some support in the practice in criminal trials in common law jurisdictions overseas. In England, recent decisions confirm that if the prosecution appears to be exercising its discretion with respect to the calling of a witness improperly, the trial judge may intervene and invite the prosecution to call the witness. If the prosecution refuses to do so, the judge himself may call the witness without the consent of either the prosecution or the defence, if in his opinion that course is necessary in the interests of justice: Oliva [5] ; Reg. v. Tregear [6] . The discretion to call a witness should be exercised with caution: Reg. v. Cleghorn [7] .

1. (1965) 49 Cr.App.R. 298. 2. [1967] 2 Q.B. 574. 3. [1967] 2 Q.B. 584.

The English practice is followed in Canada: R. v. Skelly [8] ; Reg. v. Bouchard [9] ; Reg. v. Talbot [No. 2] [10] . In Lemay v. The King [11] , it was held explicitly that the trial judge cannot direct the Crown to call a witness whom the Crown considers to be unreliable.

1. (1927) 61 O.L.R. 497. 2. (1973) 12 C.C.C. (2d) 554. 3. (1977) 38 C.C.C. (2d) 560. 4. [1952] 1 S.C.R. 232 [(1951) 102 C.C.C. 1].

In New Zealand, in Reg. v. Fuller [12] the Court of Appeal observed, when dealing with the question of the duty of the Crown with respect to the calling of witnesses, that New Zealand practice conformed with that of England as outlined by the Court of Criminal Appeal in Oliva . However, it may be noted that s. 368(2) of the Crimes Act 1961 N.Z. empowers the court to "require the prosecutor to call" a witness whom the court thinks should have been so called.

In the United States there is support for the proposition that it is within the discretion of the court to call a witness for whom neither the prosecutor nor the defence is willing to vouch and who appears to possess material evidence. The right is to be exercised with caution: 23 Corpus Juris Secundum, "Criminal Law", s.1017; Rogers, Court's witnesses (other than expert) in criminal prosecution, American Law Reports (2d), vol. 67 (1959), p. 539.

From this brief review of criminal trial practice in overseas common law jurisdictions it may be seen that, speaking generally, there is broad support for the twin principles of prosecutorial discretion as to the calling of witnesses and a power in the court to call a witness. That power, however, is in the nature of an ultimate sanction and is to be exercised with caution. In Cleghorn [13] , the Court of Appeal referred with approval to the statement of Erle J. in the early case of Reg. v. Edwards [14] :

There are, no doubt, cases in which a judge might think it a matter of justice so to interfere; but, generally speaking, we ought to be careful not to overrule the discretion of counsel, who are, of course, more fully aware of the facts of the case than we can be. Nevertheless, the court then added its own comment that there clearly are cases in which the judge is justified in calling a witness. 1. [1967] 2 Q.B., at p. 588. 2. [1848] 3 Cox C.C. 82, at p. 83.

There is limited authority in this Court dealing with the power of the trial judge in a criminal case to call a witness. The only case in which that question actually fell for decision was Titheradge v. The King [15] . In that case, after all the evidence called by both the prosecution and the defence had been given, the judge not only called a witness whose evidence seemed to him to be indispensable, but also, being informed by the Crown prosecutor of statements allegedly made by the witness which were inconsistent with his testimony, then recalled two other witnesses to whom those statements were said to have been made. Neither the accused nor the prosecutor consented to this course, although apparently no objection was raised. It was held that there was a substantial miscarriage of justice. However, there was no clear statement of the principles involved which commanded the assent of a majority of the Court. Isaacs and Rich JJ. were of the opinion that a judge in a criminal trial cannot call evidence of his own motion except where the Crown raises no objection and the accused consents. They simply applied the decision of the English Court of Appeal in a civil case, In re Enoch and Zaretzky, Bock & Co.'s Arbitration [16] , saying that the observations of Moulton L.J. in that case are of general application to the administration of justice both civil and criminal [17] . It is to be noted that this view of that decision has not been taken in England. In R. v. Dora Harris [18] , it was said that it was clearly established that the rule in In re Enoch and Zaretzky, Bock & Co.'s Arbitration "does not apply to a criminal trial where the liberty of a subject is at stake and where the sole object of the proceedings is to make certain that justice should be done as between the subject and the State" and as we have already indicated subsequent authorities in England have confirmed that the rule in criminal cases is not the same as that in civil cases. The development of the law in this way in England may have been influenced by the absence prior to 1968 of any power in the Court of Criminal Appeal to order a new trial in any event including a case where the failure of the Crown to call a witness may be found on appeal to have resulted in a miscarriage of justice. The other members of the Court in Titheradge v. The King were Barton and Gavan Duffy JJ. The latter contented himself by saying that there had been a miscarriage of justice [19] . Barton J. said [20] :

No one, then, will doubt that there are instances, not numerous, in which in furtherance of justice and in exceptional circumstances presiding judges have rightly taken it upon themselves to actually examine a witness, and, of course, it happens every day that a Judge, in order to understand what a witness has said, asks him a question. But that is a very different matter from the assumption by the Court of the conduct of the case. A trial is a proceeding inter partes, whether the Crown is a party or not, and the conduct of the evidence, subject to questions of admissibility, is in principle the concern of the parties. Where departures from the rigid observance of this principle have occurred, it has, I think, been upon necessity, as, for instance, in the case where, the parties having definitely closed their evidence, the jury wish a person present to be called for their better information. But the right, where it exists, of a judge to take the conduct of the examination of persons not called by either party must be used with extreme caution. In a civil case there must either be the consent of the parties or an acquiescence on their part from which the strong inference is consent. I have already pointed out that the sections of the Evidence Act cited at the Bar are framed, save in a sole particular, upon the assumption that the parties themselves will lead the evidence. That is the normal and proper practice, and any deviation from it must be safeguarded by every precaution. This is especially true in a criminal case It seems to me that in a criminal case the defence ought to be asked whether the accused consents to the course which the judge proposes to take when he desires (for strong cause) to examine a witness, and the examination ought not to take place without such consent. No such consent was asked or given here. That was, I think, a substantial irregularity. 1. (1917) 24 C.L.R. 107. 2. [1910] 1 K.B. 327. 3. (1917) 24 C.L.R., at p. 118. 4. [1927] 2 K.B. 587, at p. 594. 5. (1917) 24 C.L.R., at p. 119. 6. (1917) 24 C.L.R., at pp. 116-117.

In Shaw v. The Queen [21] , Dixon, McTiernan, Webb and Kitto JJ. said:

The decisions in England allow the presiding judge at a criminal trial to call a witness if he thinks the imperative demands of justice require it. This view was acted on in Victoria (R. v. Collins [22] ). But in Titheradge v. The King [23] this Court denied the power. In Shaw the Court was concerned with the circumstances in which the Crown might be allowed to call evidence in rebuttal of evidence given during the defence case. In that context the reference to Titheradge may have been no more than a passing reference by way of narrative without intending either to approve or disapprove of it. Fullagar J., who delivered a separate judgment, also referred to R. v. Collins, which was a case in which Cussen J. had exercised the power to call a witness of his own motion, although not requested by either party to do so; Fullagar J. said [24] that he could not feel the slightest doubt that the course taken by Cussen J. in that case was "entirely correct and proper". 1. (1952) 85 C.L.R. 365, at p. 379. 2. [1907] V.L.R. 292. 3. (1917) 24 C.L.R. 107. 4. (1952) 85 C.L.R., at p. 383.

Two further authorities remain to be mentioned. Richardson v. The Queen [25] was a case where the prosecutor declined to call an eyewitness to the alleged offence because he considered her to be neither a credible nor truthful witness. The Court comprised Barwick C.J., McTiernan and Mason JJ. Their Honours, in a joint judgment, discussed, in relation to the calling of witnesses, both the role and responsibility of a prosecutor and the powers of a trial judge. With respect to the former topic, their Honours said [26] :

Any discussion of the role of the Crown prosecutor in presenting the Crown case must begin with the fundamental proposition that it is for him to determine what witnesses will be called for the prosecution. He has the responsibility of ensuring that the Crown case is properly presented and in the course of discharging that responsibility it is for him to decide what evidence, in particular what oral testimony, will be adduced. He also has the responsibility of ensuring that the Crown case is presented with fairness to the accused. In making his decision as to the witnesses who will be called he may be required in a particular case to take into account many factors, for example, whether the evidence of a particular witness is essential to the unfolding of the Crown case, whether the evidence is credible and truthful, whether in the interests of justice it should be subject to cross-examination by the Crown, to mention but a few.

What is important is that it is for the prosecutor to decide in the particular case what are the relevant factors and, in the light of those factors, to determine the course which will ensure a proper presentation of the Crown case conformably with the dictates of fairness to the accused. It is in this sense that it has been said that the prosecutor has a discretion as to what witnesses will be called for the prosecution. But to say this is not to give the prosecutor's decision the same character as the exercise of a judicial discretion or the exercise of a discretionary power or to make his decision reviewable in the same manner as those discretions are reviewable. In the context the word "discretion" signifies no more than that the prosecutor is called upon to make a personal judgment, bearing in mind the responsibilities which we have already mentioned.

With respect to the powers of a trial judge, their Honours said [27] : In argument it was submitted that the trial judge had power to direct the Crown prosecutor to call a witness or that he had power to call a witness of his own motion (see Reg. v. Lawson [28] ). For the disposition of this application it is unnecessary to decide whether a trial judge possesses either of the suggested powers. It is sufficient to say that we remain to be persuaded of the correctness of the submission. It does not seem to accord with the adversary procedure which has hitherto been followed. If the power should be held to exist, the occasions for its exercise should be rare and infrequent, because all too often the trial judge lacks that knowledge and information about the witness, his relationship to the parties and to the evidence to be presented which is essential to the making of a decision whether the witness should be called in the Crown case. The trial judge should be astute to acknowledge the nature of the discretion which is reposed in the prosecutor and the limitations attaching to his judicial knowledge of material circumstances. In this passage the Court expressed no concluded opinion on the question whether a judge in a criminal case could call a witness of his own motion, but made it clear that if the power does exist it should be rarely and cautiously exercised. 1. (1974) 131 C.L.R. 116. 2. (1974) 131 C.L.R., at p. 119. 3. (1974) 131 C.L.R., at p. 122. 4. [1960] V.R. 37, at p. 40.

Finally, in Whitehorn v. The Queen [29] Dawson J., in the course of a discussion of the authorities in England and Australia, said that there is "a clear divergence in this aspect of criminal law and procedure between England and this country" and that "Since Titheradge v. The King [30] it has been established here that the rule is the same in civil and criminal cases and that a witness cannot be called by the judge save with the consent of both parties and then only in exceptional circumstances." However, Gibbs C.J. and Brennan J. [31] expressly reserved their opinion on this question and the other members of the Court, Murphy and Deane JJ., did not find it necessary to discuss it.

1. (1983) 152 C.L.R. 657, at p. 681. 2. (1917) 24 C.L.R. 107. 3. (1982) 152 C.L.R., at p. 660.

We have come to the conclusion that the following general propositions are applicable to the conduct of criminal trials in Australia:

The Crown prosecutor alone bears the responsibility of deciding whether a person will be called as a witness for the Crown.

The trial judge may but is not obliged to question the prosecutor in order to discover the reasons which lead the prosecutor to decline to call a particular person. He is not called upon to adjudicate the sufficiency of those reasons.

Whilst at the close of the Crown case the trial judge may properly invite the prosecutor to reconsider such a decision and to have regard to the implications as then appear to the judge at that stage of the proceedings, he cannot direct the prosecutor to call a particular witness.

When charging the jury, the trial judge may make such comment as he then thinks to be appropriate with respect to the effect which the failure of the prosecutor to call a particular person as a witness would appear to have had on the course of the trial. No doubt that comment, if any, will be affected by such information as to the prosecutor's reasons for his decision as the prosecutor thinks it proper to divulge.

Save in the most exceptional circumstances, the trial judge should not himself call a person to give evidence.

A decision of the prosecutor not to call a particular person as a witness will only constitute a ground for setting aside a conviction if, when viewed against the conduct of the trial taken as a whole, it is seen to give rise to a miscarriage of justice.

We have not attempted in our first proposition to deal exhaustively with the responsibility of the prosecutor. The description of that responsibility, which we have cited from Richardson, emphasizes that the prosecutor's role in this regard is a lonely one, the nature of which is such that it cannot be shared with the trial judge without placing in jeopardy the essential independence of that office in the adversary system. It is not only a lonely responsibility but also a heavy one. A decision whether or not to call a person whose name appears on the indictment and from whom the defence wish to lead evidence must be made with due sensitivity to the dictates of fairness towards an accused person. A refusal to call the witness will be justified only by reference to the overriding interests of justice. Such occasions are likely to be rare. The unreliability of the evidence will only suffice where there are identifiable circumstances which clearly establish it; it will not be enough that the prosecutor merely has a suspicion about the unreliability of the evidence. In most cases where a prosecutor does not wish to lead evidence from a person named on the indictment but the defence wishes that person to be called, it will be sufficient for the prosecutor simply to call the person so that he may be cross-examined by the defence and then, if necessary, be re-examined.

In the formulation of the fifth proposition we have allowed for the possibility that circumstances may arise when the trial judge will be constrained to call a person to testify. The circumstances which would justify such a course would be rare. It is clear to us that more would be required to establish "most exceptional circumstances" than the refusal of the prosecutor, for reasons which the judge thinks insufficient, to call a witness. Some of the reasons for the need for the extreme reluctance with which the trial judge should even consider usurping the responsibility of the parties with respect to the calling of witnesses appear in the following passage from the judgment of Dawson J. in Whitehorn [32] :

A trial does not involve the pursuit of truth by any means. The adversary system is the means adopted and the judge's role in that system is to hold the balance between the contending parties without himself taking part in their disputations. It is not an inquisitorial role in which he seeks himself to remedy the deficiencies in the case on either side As was pointed out in Richardson v. The Queen [33] , he frequently lacks that knowledge and information about the witness or his relationship to the parties and to the evidence to be presented which is essential in making such a decision. If he calls a witness himself he will almost always have to do so in the dark, not knowing with any certainty what the witness is going to say or whether he can be relied upon: cf. R. v. Collins [34] . If the witness is unreliable (and if neither party has seen fit to call him, that is more likely than not), the fact that he is called by the judge may give his evidence an undesirable aspect of objectivity. There can be no assurance that his credit will be tested by either side but, if it is, the judge has no means whereby he can ensure that any necessary steps to re-establish the witness's credit are taken. Because the judge does not know what a witness called by him may say, he may by calling him necessitate the calling of further evidence so that the trial takes a turn which was not intended and which further involves the judge in a function not appropriately his.

Moreover, evidence called by a trial judge may have the effect of shifting the ground upon which the parties have determined to contest the issue; indeed it may have the effect of altering the issue itself.

His Honour illustrated the final comment in the passage we have cited by referring to the recent case of Reg. v. Damic [35] . 1. (1983) 152 C.L.R., at pp. 682-683. 2. (1974) 131 C.L.R. 116. 3. [1907] V.L.R. 292. 4. [1982] 2 N.S.W.L.R. 750.

It remains to offer a comment on the sixth proposition. In Richardson [36] , the Court said:

Once it is acknowledged that the prosecutor has a discretion and that there is no rule of law requiring him to call a particular witnesses, it becomes apparent that the decision of the prosecutor not to call a particular witness can only constitute a ground for setting aside a conviction and granting a new trial if it constitutes misconduct which, when viewed against the conduct of the trial taken as a whole, gives rise to a miscarriage of justice. In our formulation of the sixth proposition we have omitted the reference to misconduct, intending thereby to broaden the approach so as to focus directly on the consequences, objectively perceived, that the failure to call the witness has had on the course of the trial and its outcome. It is not necessary to postulate misconduct of the prosecutor as an essential condition precedent to a miscarriage of justice. No doubt in the great majority of cases of this kind an appellate tribunal which finds a miscarriage of justice to have occurred will trace that miscarriage to a wrong exercise of judgment by the prosecutor which led to the witness not being called. In cases where there has been no error of judgment there will be less likelihood of a miscarriage resulting from the failure to call the witness. Nevertheless, the absence of testimony from a witness may lead to a miscarriage of justice without any error having occurred. Whitehorn [37] was regarded as such a case, by some at least of the members of the Court who took part in that decision. The absence, for whatever reason, of any evidence from the complainant was the basic reason, in the light of such evidence as was called, for the Court's conclusion that the verdict was unsafe and unsatisfactory. So, if a prosecutor fails to call a witness whose evidence is essential to the unfolding of the case for the Crown the central question is not whether his decision constitutes misconduct but whether in all the circumstances the verdict is unsafe or unsatisfactory. 1. (1974) 131 C.L.R., at pp. 121-122. 2. (1983) 152 C.L.R. 657.

The questions which we have discussed are of such importance that, if there were nothing more in the case, they would require special leave to appeal to be granted. However, the Full Court, after a full and careful consideration of the course taken at the trial, reached the conclusion that a substantial miscarriage of justice had occurred. They came to this conclusion after expressing the opinion that the prosecutor's decision not to call Tibballs was not made for satisfactory reasons and that, in the proper performance of his role, he ought to have called both Tibballs and Brodie as witnesses in the Crown case. Although their Honours took a different view of the law from that which we have stated, in the end the question for their decision was whether the failure of the prosecutor to call Tibballs and Brodie, and the fact that the respondent (the accused) was obliged to call them, so prejudiced the respondent in the conduct of his defence that a substantial miscarriage of justice resulted. This is a matter on which opinions might readily differ, but it would be an unusual and in general an undesirable course for this Court to grant special leave to appeal simply to enable the prosecution to seek to overturn an order for a new trial made by a Court of Criminal Appeal which has unanimously decided that, having regard to the circumstances of the particular case, a substantial miscarriage of justice has occurred. We have taken the opportunity to state, so far as is necessary for the present case, the correct practice to be applied, and there remains no sufficient justification for us to grant special leave to appeal.