OBIAN v THE KING [2024] HCA 18, MAY 8, 2024.
FACTS: The accused was charged with offences involving a conspiracy to traffic in drugs. The Crown alleged that the accused had rented a van involved in moving the drugs.
The accused testified and denied being involved in the conspiracy. He indicated that he had rented the van on behalf of friend (Mr. Allouche) and had nothing more to do with the van afterward.
The Crown was granted leave to call reply/rebuttal evidence to the contrary. Section 233(2) of Criminal Procedure Act 2009 (Vic), provides that the prosecution may, with leave of the trial judge, call evidence in reply “[i]f, after the close of the prosecution case, the accused gives evidence which could not reasonably have been foreseen by the prosecution”.
The accused was convicted. The accused appealed from conviction, arguing that the trial judge had erred in allowing the Crown to call the reply evidence.
HELD: The appeal was denied. The High Court of Australia concluded that “there was no error by the trial judge in exercising the power in the circumstances of this case” (at paragraph 4). The Court held that section 233(2) “is to be construed on its own terms and is not to be confined to a very special or exceptional case in accordance with the common law rule” (at paragraph 4). It noted that it “provides a separate statutory power to permit the prosecution to adduce evidence in reply in the circumstances specified in that provision, while s 233(3) preserves the power at common law to permit the prosecution to adduce further evidence after the close of its case in accordance with the common law rule” (at paragraph 12).
Therefore, though this decision involves interpreting section 233(2), some of the Court’s analysis may be useful in construing the common law rule.
The High Court of Australia noted, for instance, that “[a]s with many common law axioms, the rule that the prosecution may not split its case is by no means absolute. That rule has long been hedged by courts calling in aid the ‘imperative demands of justice. Dixon, McTiernan, Webb and Kitto JJ considered it ‘unsafe to adopt a rigid formula in view of the almost infinite variety of difficulties that may arise at a criminal trial’, it being “probably enough to say that the occasion must be very special or exceptional to warrant a departure from the principle that the prosecution must offer all its proofs during the progress of the Crown case and before the prisoner is called upon for [their] defence’. Generally speaking, the circumstances will not be exceptional if the prosecution ‘ought reasonably to have … foreseen’ the occasion for calling the further evidence. As a principle of common law, the rule that the prosecution may not split its case is amenable to statutory modification or supplementation” (at paragraph 1).
The High Court concluded that it could not “be said that, if the appellant gave evidence, it was reasonably foreseeable that his evidence would be that he hired the van for Mr Allouche, drove the van to Mr Allouche’s place, and then had no further involvement with the van” (at paragraphs 33 and 36):
The matter of significance to the trial judge was that the prosecution had no notice that the appellant might give evidence that he had hired the van for, and given the van to, Mr Allouche as the appellant described in his evidence. This is apparent not only from the terms of the argument before the trial judge, but also from the terms of the trial judge’s ruling (set out above), in particular his Honour’s reference to his “reasons which will become apparent from my discussion with counsel in the course of this application” which, manifestly, evolved beyond the prosecutor’s incorrect statements to the true relevance of the appellant’s evidence – not that the appellant hired the van, but that he did so for Mr Allouche and, after delivering the van to Mr Allouche, had no further dealings with the van.
Before the appellant gave the relevant evidence, that he hired the van for Mr Allouche, gave him the van, and then had nothing further to do with the van, an unknown number of possibilities were as equally possible as that evidence. Nothing made any one speculative possibility any more likely than any other speculative possibility. Contrary to the submissions for the appellant, the likelihood of the appellant confessing that he hired the van, if the appellant gave evidence, did not make the appellant’s ultimate mode of avoiding culpability (saying that he hired the van for another person and, after delivering it to that person, had nothing to do with the van) reasonably foreseeable. For example, the appellant could have hired the van on his own behalf and then allowed another person to borrow it. Or he could have hired the van on his own behalf and said it was stolen. As Macaulay JA said in the Court of Appeal, “[a]t best, the [appellant] left an ambiguous and Delphic breadcrumb trail to what his real defence was”. That ambiguous trail did not make it reasonably foreseeable that, if the appellant gave evidence, he would say he hired the van on behalf of another person.
