R v Smart (Ruling no 4)

The case of R v Smart involved the accused, who was charged with offences related to sexual assault of a young child. The trial proceeded in the court of appeal, where the prosecution did not call the child as a witness. The child's testimony was available in the form of a recorded interview. The central issue was whether the prosecution's failure to call the child amounted to a breach of the accused's right to a fair trial and whether the judge should have exercised the power to call the child as a witness.

The court was required to determine the extent of the prosecution's duty to call witnesses, particularly in cases involving young children. It also needed to assess whether the judge had the discretion to call the child as a witness and under what circumstances this power could be exercised. The court examined whether the failure to call the child constituted a breach of the accused's right to a fair trial and if the judge had acted appropriately in declining to call the child.

The court held that the prosecution has a duty to call witnesses whose evidence is material and relevant to the case. However, this duty is not absolute, and the prosecution may choose not to call a witness if it considers the evidence unreliable or prejudicial. The court found that the prosecution had a legitimate reason for not calling the child, as the evidence was available in the form of a recorded interview and could be presented to the jury without the need for live testimony. The court also determined that the power of the judge to call a witness of their own volition is to be exercised only in the most exceptional circumstances, which were not present in this case. The court concluded that the judge's decision not to call the child as a witness was appropriate and did not result in a breach of the accused's right to a fair trial.

The appeal was dismissed, and the conviction was upheld. The court found no error in the trial judge's handling of the witness issue and affirmed the decision of the lower court.