Prosecutorial duties to call material witnesses, including the obligation to conference witnesses before forming a view on unreliability, apply equally to regulatory bodies and local councils prosecuting summary criminal offences. The distinction between evidence a witness was 'likely to give' and 'might theoretically give' (from ASIC v Hellicar) is critical to assessing whether failure to call a witness caused a miscarriage of justice. Where neither the prosecution nor the defence has obtained a proof of evidence from the uncalled witness, the appellant bears the evidentiary onus of demonstrating that the witness would in fact have given evidence favourable to their case, and mere speculation as to what the witness might have said is insufficient.
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