Sometimes the prosecution can rebut evidence given by a defendant by obtaining the judge’s permission to call further evidence. The prosecutor may not have anticipated the defendant’s evidence.
Both the common law and statute may be relevant. An issue could arise as to whether the common law on the topic has been replaced by the statute to the extent of its terms, and also as to what is the extent of the statutory terms.
In Obian v The King [2024] HCA 18 the central statutory provisions were s 233(1) and (3) of the Criminal Procedure Act 2009 (Vic), set out at [10] and [11] of the Court’s unanimous judgment. Subsection (3) preserves the common law, and subsection (2) gives a separate power to permit further evidence in relation to specified Victorian criminal procedures [12]. And these specified procedures, two in number and linked by the conjunction “and”, are not exhaustive [13] so they do not replace the common law power [15]. As with the common law power, the statutory power is exercisable having regard to all the circumstances as they exist at the time the prosecutor makes the application to adduce further evidence [16].
The essential issue is whether the defendant has given evidence which the prosecutor could not reasonably have foreseen [15].
Broadly, in this case the defendant claimed to have not been involved in drug dealing, and that all he did was deliver a vehicle to a person who had not given evidence and who was not suspected of being involved in the dealing. The prosecution applied to adduce video surveillance proof that the defendant had not delivered the vehicle to that person. Should the prosecutor have anticipated that the defendant would give the explanation that he gave for the first time in court?
This was a vigorously contested point, the transcript of the argument was 70 pages [24], and although there were some innocent misstatements by counsel of the facts these did not turn out to be relevant [34].
The defendant’s explanation was not reasonably foreseeable as there were several possible exculpatory explanations that could have been given [35]-[39]. The Court agreed with the assessment by Macaulay JA in the Court of Appeal, that the defendant had, in pre-trial communications, “left an ambiguous and Delphic breadcrumb trail as to what his real defence was”. The trial judge had correctly ruled that the prosecutor could call the rebuttal evidence.
