Under s 70(1)(a) of the Crimes (Local Courts Appeal and Review) Act 2001 (NSW), a successful appellant seeking costs need not prove what an absent witness would have said in order to establish that the investigation was conducted in an unreasonable manner. Where a prosecutor knows of an eye-witness but fails to interview them and relies wholly on a circumstantial case, the investigation may be found unreasonable regardless of the content of the absent witness's evidence. The failure to call a witness at trial is a matter going to the conduct of proceedings under s 70(1)(b), not to the investigation under s 70(1)(a). A mere assertion of alibi by an accused does not as a matter of law require the prosecution to investigate it.
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