The decision to not call a witness will constitute a ground for setting aside a conviction only if it gives rise to a miscarriage of justice when viewed against the conduct of the trial as a whole; the critical question on appeal is not whether the prosecutor failed in duty but whether there has been a miscarriage of justice. A Jones v Dunkel adverse inference from the omission to call a witness cannot be drawn against the defence in the same way, for the same reasons, or with the same force as it can be drawn against the Crown in a criminal trial.
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