The High Court has dismissed an appeal from the decision of the Supreme Court of Nauru in Diehm v DPP (Nauru). On 29 November 2011, Chief Justice Eames convicted the appellants, a husband and wife, of raping a 21 year old woman. His Honour stated that he was satisfied beyond reasonable doubt that both accused knowingly engaged in non-consensual sex with the complainant. Under s 5 in accordance with sch 1 s 3 of the Nauru (High Court Appeals) Act 1976 (Cth), a person convicted by the Supreme Court of Nauru may appeal, as of right, to the High Court of Australia against that conviction. The appellants submitted that the DPP failed to call an essential witness (a police officer who authored the police report), that the Court erred in failing to call that witness of its own motion and instead informing itself of the relevant evidence, and that in doing so denied the appellants procedural fairness.

The High Court held that the decision whether to call a prosecution witness is for the prosecution’s discretion alone and no miscarriage of justice arises by a failure to call the police witnesses that could have been called. Given that no miscarriage of justice followed from the prosecution’s failure to call the police witness in this case, the trial judge was under no duty to exercise his power to call the witness himself. The Court also rejected the argument that the Court had informed itself of the evidence, as it was clear that the trial judge did not treat the witness statement as evidence.