b He approximated that he arrived there at lunchtime;

1. He was there with his Father, a few friends and his partner, Stacey Louise Hinds;

1. That at the time of the interception by police he was at his Fathers residence;
2. That he and his Ms Hinds left his Fathers address and were heading towards Granton on foot; and

h That he had not driven the vehicle at any time that evening.

1. On 14 March 2025, the Applicant filed a USB with exhibits P5 & P7 as well as the BWC footage recorded by Constable Richardson and Constable P Schenirer which were not tendered on the hearing but were taken at the scene where the Applicant was arrested at on or around the same time as exhibits P5 & P7.
2. The BWC footage taken by Constable Richardson and Constable Schenirer was relevant admissible evidence. It also revealed two police witnesses who were not called to give evidence as well as a civilian witness, Stacey Louise Hinds, who was not called to give evidence. Each of these witnesses offered evidence that went to:
   1. The identification of the Applicant as the driver of the motor vehicle; and/or

b The Applicants location prior to his arrest by police.

1. The failure to call the witnesses and tender the BWC footage has resulted in an unfairness to the Applicant which can only be cured by the complaint being reheard de novo." (Footnotes omitted)
2. Counsel for the applicant submits that when viewed alongside the BWC footage tendered on the hearing and the evidence given by the applicant before the learned magistrate, I should conclude that the evidence available from Constable Richardson, Constable Schenirer and Ms Hinds was very important to the defence case. Specifically, counsel submits that the BWC footage reveals Ms Hinds giving evidence in relation to:
   • The applicant and Ms Hinds being together at the applicant's father's address.
   • The applicant walking (that is to say, not driving).
   • The applicant's car having been at his father's residence.
3. Counsel submits that it is also apparent from the BWC footage taken by Constable Richardson that she interpreted what Ms Hinds had said to police as confirmation that the applicant had driven the motor vehicle concerned. Constable Richardson's conversation with another police officer about what she interpreted Ms Hinds to have said, seems to be the basis (or at least part of the basis) that police formed the view that the applicant was the driver of the motor vehicle. Counsel submits that as the applicant disputes that Ms Hinds said to police that the applicant was driving the motor vehicle, he ought to have been able to cross-examine Constable Richardson as to which part of Ms Hinds' statement she took as confirmation he was driving, and he should also have been able to cross-examine Ms Hinds herself.
4. Counsel submits that in failing to call Constable Richardson, the applicant was denied an opportunity to cross-examine her on how she formed the view that the applicant was driving and that what was said by Ms Hinds "was a contemporaneous statement from someone who could have been expected to have knowledge of the applicant's movements across the period relevant to the complaint". That is to say, that her disclosures to police about having been at the applicant's father's address was consistent with what the applicant told police by way of alibi.

1. The respondent accepts that the BWC footage of Constable Richardson and Constable Schnierer contained comments made by Ms Hinds that were relevant or potentially relevant to facts in issue in the proceedings. Specifically, Ms Hinds suggested that the applicant had left his father's address at least 30 minutes prior (as at 11:53pm) and she considered him "long gone". Arguably, she also agreed with the proposition that the applicant left the address in his vehicle. Ms Hinds also said that the applicant arrived again on foot, coming "out of the bushes".
2. The respondent submits that electronic records recording police disclosure reveal that the BWC footage relevant to this application was disclosed to the applicant's then legal practitioner via email on 30 June 2021. However, disclosure material was subsequently provided directly to the applicant via email on 16 March 2022 and the BWC footage does not appear to have been provided at the same time, (consistent with the applicant's affidavit).
3. The thrust of the respondent's submissions is that, in any event, the BWC footage simply did not support the applicant's case, such that failure to play it could not result in a miscarriage of justice. The respondent submits that, properly analysed, the footage therefore appears to "extend the period within which the applicant could have returned to the relevant location to approximately 19 minutes, in circumstances where the learned Magistrate accepted that 11 minutes was sufficient time".

1. I have viewed the BWC footage and in my view the applicant's submissions should be accepted.
2. I am not concerned here (and indeed there is no express suggestion of it raised on behalf of the applicant),with the question of whether the prosecutor's failure to disclose the footage or to call the witnesses was a breach of prosecutorial duty of the type discussed in Nguyen v The Queen [2020] HCA 23; 269 CLR 299 at [45] namely:

"A prosecutor acting in accordance with the responsibilities of their office is not to be expected to be detached or disinterested in the trial process. A prosecutor is to be expected to act to high professional standards and therefore to be concerned about the presentation of evidence to the jury. It is to be expected that some forensic decisions may need to be made. It is not to be expected that they will be tactical decisions which advance the Crown case and disadvantage the accused. In Ziems, Fullagar J observed that in that case the object of not calling a vital witness could only have been to deny the other party the ability to cross-examine him. Whilst the creation of a tactical advantage might be permissible in civil cases, in criminal cases it may not accord with traditional notions of a prosecutor's function, his Honour said. In Whitehorn, Deane J said that the observance of traditional considerations of fairness requires that prosecuting counsel refrain from deciding whether to call a material witness by reference to tactical considerations." (Footnotes omitted.)

1. Nonetheless it remains the case as was noted by the High Court in that case at [36] that:

"In Ziems v The Prothonotary of the Supreme Court of New South Wales, Fullagar J observed the rule in criminal cases to be that 'the prosecution is bound to call all the material witnesses before the Court, even though they give inconsistent accounts, in order that the whole of the facts may be before the jury'. This statement was quoted with approval by the Court in Richardson, where, as noted above, it was said that it was the responsibility of the prosecution to present the case for the Crown 'conformably with the dictates of fairness to the accused'. In Whitehorn Dawson J said that '[a]ll available witnesses should be called whose evidence is necessary to unfold the narrative and give a complete account of the events upon which the prosecution is based'". (Footnotes admitted and emphasis added.)

1. In my view the BWC footage and the evidence of Ms Hinds and Constables Richardson and Schenirer was necessary to unfold the narrative and give a complete account of the events giving rise to the applicant being arrested and charged. I have read the written reasons for decision of the learned magistrate and I note that he did not accept the evidence of the applicant, however the question here is not whether his Honour's conclusion, based on the evidence, was one that he as a reasonable person, might have come to. The issue here is whether, having regard to all the circumstances, the interests of justice require that the complaint be heard de novo.
2. The case of Coppleman v Godfrey [2014] TASSC 60 was not dissimilar in some respects to the present, although it concerned a failure by the applicant's counsel to call a witness as a result of incompetence. In my view, the words of Wood J at [69] are apposite to the present case. Her Honour said:

"The potential alibi evidence falls into a different category. There is the prospect that, if accepted, and if regarded as accounting for the applicant's whereabouts and providing an alibi covering the relevant period when the applicant was said to have been at the complainant's house, it would lead to an acquittal. The impact of this evidence would, of course, turn on the court's assessment of it and considerations such as the detail of the witness' evidence regarding his observations and the credibility and reliability of the witness. All of these matters are best considered in the context of the hearing of the complaint, rather than in these proceedings."

1. There is force in the respondent's argument that, in the end result, the evidence of Ms Hinds and the BWC footage may be of no use to the applicant but it is not for me to, in effect, try the case on the documents I have in order to determine that. As I have said, the evidence was necessary, in my view, to unfold the narrative and give a complete account of the events upon which the prosecution was based. I cannot predict what answers counsel on a hearing de novo might elicit in cross-examination of the witness not called. That I can speculate along the lines submitted by counsel for the respondent is not enough. Those witnesses should have been called, in my view, in order for the applicant to have had a full and fair hearing.
2. I conclude that having regard to all the circumstances, the interests of justice require that the complaint against the applicant should be heard de novo. Accordingly, I make the following orders: that the orders of conviction and sentence made against the applicant on charges 1 and 2 in complaint 8216/2020 be quashed, and that those charges on that complaint be reheard de novo by another magistrate on a date to be fixed.