The failure of the Crown to call a material witness is a conceptually distinct basis of challenge to a verdict from the ground that the verdict is unreasonable or unsupported by the evidence; the two cannot be conflated. Where defence counsel makes a deliberate forensic choice not to require the Crown to call a witness whose identity is protected by public interest immunity, and obtains a favourable Jones v Dunkel direction as a result, that choice is a dominant consideration negating any miscarriage of justice from the witness's absence. Recantations by a key Crown witness are not admissible under s 65(2)(d) of the Evidence Act 1995 (NSW) where the circumstances of their making — including motive to recant falsely, dubious origins, and internal inconsistencies — indicate they are not likely to be reliable.
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