Diehm v Director of Public Prosecutions (Nauru)

HIGH COURT OF AUSTRALIAFRENCH CJ,KIEFEL AND BELL JJTERRENCE JOHN DIEHM & ANOR  APPELLANTSANDDIRECTOR OF PUBLIC PROSECUTIONS (NAURU)  RESPONDENTDiehm v Director of Public Prosecutions (Nauru)[2013] HCA 4230 October 2013B15/2012ORDER1.An extension of time to appeal be granted.2.Appeal dismissed.On appeal from the Supreme Court of NauruRepresentationS J Lee for the appellants (instructed by Gadens Lawyers)P J Hannebery for the respondent (instructed by Department of Justice and Border Control – Republic of Nauru)Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.CATCHWORDSDiehm v Director of Public Prosecutions (Nauru)Criminal law – Practice and procedure – Duties of prosecutor – Duty of prosecutor to call all material witnesses – Appellants convicted of rape – Only one of two police officers who attended scene called to give evidence – Whether failure of prosecutor to call second officer occasioned miscarriage of justice.Criminal law – Practice and procedure – Statutory power and duty of trial judge to call witness of own motion – Scope of duty – Whether evidence of uncalled witness "essential to the just decision of the case".Criminal law – Evidence – Depositions – Statement of uncalled witness not in evidence – Trial judge referred to statement to determine effect of failure to call witness – Whether reference to statement occasioned breach of natural justice.Words and phrases – "essential to the just decision of the case", "fair trial", "material witness", "miscarriage of justice".Criminal Code (Q), ss 7, 348.Criminal Procedure Act 1972 (Nauru), ss 100(1), 188.Laws...