Where witnesses are known to have been present in the vicinity of alleged offending over a sustained period, the prosecution is reasonably expected to call them under s 43 of the Jury Directions Act 2015, and the explanation that police did not obtain statements from them is unsatisfactory. However, the failure to give a s 43 direction may not result in a substantial miscarriage of justice where the prosecutor concedes in closing the substance of what the direction would have conveyed. Defence counsel's strategic decision not to test a complainant's claimed memory loss on specific allegations may undermine a subsequent s 137 exclusion application, as the foundation for unfair prejudice will not have been established.
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