R v Apostilides [1984] HCA 38; (1984) 154 CLR 563 (19 June 1984)

CATCHWORDS

HEARING

DECISION

2. The following passage taken from the reasons for judgment of Kaye J. conveniently outlines the facts of the case and the course of relevant events at the trial:



"The relevant facts as verified by Crown

witnesses were as follows.

On Saturday evening, 4th December, 1982, the

prosecutrix, then aged 32 years, and Julie Anne

Tibballs were in a section of an hotel bar in

Richmond. While they were awaiting the arrival of

their friend Anne Lorna Jeffrey, the applicant

invited the two women to have a drink with him and

his friend, Robert Brodie. They refused because

they were about to go in to dinner, having reserved

a table in the restaurant of the hotel. Some

minutes later the prosecutrix told the men that

they could join them for a drink in the restaurant

if they wished. When Jeffrey arrived, the three

women took their table in the restaurant and

commenced to dine. While doing so, the applicant

and Brodie joined them at their table. The

applicant sat next to the prosecutrix and Brodie

next to Tibballs. Conversation between the party

was pleasant and about general matters. At one

stage the applicant put his arm around the

prosecutrix and under her T-shirt, whereupon she

quickly removed his arm. The two couples, however,

became increasingly friendly, Tibballs and Brodie

more so than the applicant and the prosecutrix.

There were at least two occasions when the

applicant gave the prosecutrix a quick hug.

At closing time the party, except Jeffrey, set

off for the prosecutrix's home on her invitation,

the prosecutrix driving the applicant in his car

and Tibballs travelling in Brodie's car. After

their arrival, they drank coffee and port in the

lounge room while listening to records. Twice,

when the applicant pulled her onto his knee, the

prosecutrix stood up. On the other hand, Tibballs

and Brodie became increasingly familiar with each

other, from time to time kissing and cuddling.

Later, at about 2.00 a.m. while the two men were in

the bathroom, the prosecutrix and Tibballs washed

up the coffee cups. When the party reassembled the

prosecutrix told them to drink up as it was time

for them to go. The applicant asked whether that

included him, to which she replied, "Yes, you too".

Tibballs then led the way to the front door, from

where the prosecutrix saw Brodie and Tibballs leave

her home. The applicant asked whether the

prosecutrix was sure she wanted him to go; she

replied that she had only just met him and that the

most she would give him was her telephone number.

The applicant returned to the lounge room,

where he poured himself a glass of port, and then

with the bottle in his hand walked towards the

front door, the prosecutrix preceding him. While

standing at the front door, the applicant grabbed

the prosecutrix, slammed shut the front door, and

pushed her backwards into the nearby bedroom,

saying that he intended to have his way whether she

wanted it or not. He then pushed the prosecutrix

backwards onto a single bed and lay on top of her.

With one hand on her chin, the applicant pushed the

prosecutrix's head back and sideways while

continuing to apply pressure until she was fearful

that her neck might break. He acceded to her plea

to allow her to go to the toilet, gripping her arm

as they proceeded to the bathroom. When she

emerged from the toilet, the applicant dragged the

prosecutrix backwards into the bedroom and pushed

her onto the single bed. There he raped her four

times, twice vaginally as well as manually and by

forcing his penis into her mouth. (The prosecutrix

swore that he also raped her per anum; this was the

subject of the count on which he was found not

guilty). From the single bed the applicant

compelled the prosecutrix to lie with him on the

double bed in the other bedroom. There he fell

into deep sleep. While he was sleeping the

prosecutrix went to a neighbour's house where she

complained that she had been raped. The neighbour

summoned police.

Two police officers found the applicant asleep

in the double bed. After awakening him, one of the

policemen told the applicant that the owner of the

house alleged that he had raped her in the house

that evening. He replied, 'Well, then, this is a

job for the Judge and jury. I'm not saying any

more'. After some conversation about his clothing,

the police officer asked the applicant whether he

believed she had any grounds for making the

complaint. He replied, 'She may have, mate, but I

want my solicitor present'. To the police

officer's further question whether he and the

prosecutrix had engaged in any sexual activity, the

applicant answered that they had done everything.

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."



3. 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."

"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 connection 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 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."

4. 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 [1973] VicRp 68; (1973) VR 693, at pp 698, 706; Reg. v. Evans [1964] VicRp 92; (1964) VR 717, at p 719. 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 [1973] VicRp 69; (1973) VR 709, at p 714:

"It is apparent from the authorities that there can

be no direction to the Crown to call the witness."

5. 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 (1965) 49 Cr App R 298; Reg. v. Tregear (1967) 2 QB 574. The discretion to call a witness should be exercised with caution: Reg. v. Cleghorn (1967) 2 QB 584.

6. The English practice is followed in Canada: R v. Skelly (1927) 61 OLR 497; Reg. v. Bouchard (1973) 12 CCC (2d) 554; Reg. v. Talbot (No. 2) (1977) 38 CCC (2d) 560. In Lemay v. The King (1952) 1 SCR 232, (102 CCC 1), it was held explicitly that the trial judge cannot direct the Crown to call a witness whom the Crown considers to be unreliable.

7. In New Zealand, in Reg. v. Fuller (1966) NZLR 865, 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.

8. 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", . 1017; Rogers, "Court's witnesses (other than expert) in criminal prosecution", American Law Rep. (2d), vol. 67 (1959), 539.

9. 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, at p. 588, the Court of Appeal referred with approval to the statement of Erle J. in the early case of Reg. v. Edwards (1848) 3 Cox CC 82, at p 83:

"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."

10. 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 [1917] HCA 76; (1917) 24 CLR 107. 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 (1910) 1 KB 327, saying, at p 118, that the observations of Moulton L.J. in that case are of general application to the administration of justice both civil and criminal. It is to be noted that this view of that decision has not been taken in England. In R v. Dora Harris (1927) 2 KB 587, at p 594, 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"

"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 safe-guarded 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."

11. In Shaw v. The Queen (1952) 85 CLR 365, Dixon, McTiernan, Webb and Kitto JJ. said, at p 379:

"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 [1907] VicLawRp 55; (1907)

VLR 292). But in Titheradge v. The King this

Court denied the power."

Two further authorities remain to be mentioned.

"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."

"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

[1960] VicRp 7; (1960) VR 37, at p 40). 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."

12. Finally, in Whitehorn v. The Queen [1983] HCA 42; (1982) 57 ALJR 809, Dawson J., in the course of a discussion of the authorities in England and Australia, said, at pp 818-819, 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 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. expressly reserved their opinion on this question (see at p. 809) and the other members of the Court, Murphy and Deane JJ., did not find it necessary to discuss it.

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

1. The Crown prosecutor alone bears the

responsibility of deciding whether a person

will be called as a witness for the Crown.

2. 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.

3. 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.

4. 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.

5. Save in the most exceptional circumstances,

the trial judge should not himself call a

person to give evidence.

6. 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.

14. 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.

15. 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, at p. 819:

"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, 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, supra. 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."

16. It remains to offer a comment on the sixth proposition. In Richardson, the Court (at pp. 121-122) said:

"Once it is acknowledged that the prosecutor has a

discretion and that there is no rule of law

requiring him to call 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."

17. 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.

ORDER

Special leave to appeal is accordingly refused.

Application for special leave to appeal refused.