R v M, RS

The appeal concerned a criminal conviction where the appellant, R v M, RS, sought to challenge the trial judge's decision to refuse a renewed application to have the prosecutor reconsider calling a witness, PMM. The dispute arose from the prosecution's decision not to call PMM as a witness, which the appellant argued led to a miscarriage of justice. The matter was heard in the Court of Appeal, with Peek, Nicholson, and Hinton JJ presiding.

The central legal issue before the Court of Appeal was whether the trial judge's reasons for dismissing the renewed application demonstrated bias, specifically prejudgment of the case. The appellant contended that the trial judge had formed concluded views on the credibility of the prosecution's key witness, JLM, and other supporting witnesses, before the defence case had been presented or addresses had been made. This, it was argued, suggested that the judge had prejudged the reliability of the evidence and therefore could not bring an impartial mind to the application.

The Court of Appeal considered the principles established in *Apostilides*, which govern when a prosecutor's decision not to call a witness can lead to a miscarriage of justice. These principles state that such a decision will only be a ground for setting aside a conviction if, viewed against the conduct of the trial as a whole, it results in a miscarriage of justice, and that the focus is on the consequences of the failure to call the witness, not necessarily on prosecutorial misconduct. The appellant argued that the trial judge's strong pronouncements on JLM's credibility and reliability, and the dismissal of PMM's potential evidence, indicated a prejudgment that disadvantaged the appellant. The respondent countered that the judge's findings were necessary for the application and were provisional, akin to findings made on a voir dire.

The Court of Appeal granted permission to appeal on the first ground, finding that the appellant's argument regarding the trial judge's potential bias had merit. The court indicated that the trial judge's reasons for refusing the renewed application did exhibit a degree of prejudgment concerning the credibility of witnesses, which could lead to a reasonable apprehension of bias and potentially a miscarriage of justice.