Case in Reply

 Dixon, McTiernan, Webb and Kitto JJ (would allow the appeal)

3. The prisoner was convicted of murdering a young woman, twenty-two years of age, with whom he had been living. Her name was Sylvia Holmes. Her death was caused by manual throttling, but before her death she had received a blow of some kind on the left side of the chin where bruising had developed… On entering she found the body of Sylvia Holmes lying halfway on the bed in the front room, the room upon which the door opened. The prisoner's story was that he had just gone in the front door on his return from Ada Adkins' house and had found the body in this position… But one officer of police said that in the meantime the prisoner, after making a violent attempt to escape from them to the room where the body lay, told a constable who said that he had been at more than beer that that had nothing to do with him and continued: "Find the bastard who throttled Sylvia and don't stay around here". The Crown prosecutor, in opening to the jury, used this against the prisoner because at that stage of the evening no-one but the man who killed her could know that Sylvia Holmes had been throttled.

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5. The learned judge who presided at the trial put the case to the jury as one in which it was open to them to find a verdict of murder in one or other of three aspects. They might find that the prisoner brought about the young woman's death by a voluntary act done intending to kill her. They might find that, although an intention to kill was absent, he did intend to inflict grievous bodily harm and did an act likely to lead to death. The third alternative was that without an intention to kill her he caused her death in the course of attempting to have sexual connection with her against her will and by force, caused it by force of a kind likely to bring about her death. If they were not satisfied of any of these alternatives but were satisfied that he had killed her laying his hands on her against her will the jury might find the prisoner guilty of manslaughter. But his Honour warned them against finding a verdict of manslaughter by way of compromise.

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11. … The transcript of the evidence discloses other grounds for supposing that the prisoner was expected by his counsel to say in evidence that the word he employed was not "throttle", and that the other police officer was right in saying that he spoke of the man "who did Sylvia" or words to that effect. But when the prisoner was being examined in chief he stated that he did say: "Stop sitting round here and go and find the bastard that throttled Sylvia". He was then asked: "Well, now, why did you use the word 'throttled'?" and answered: "Well I heard the police talking about it and I took it she had been throttled. I heard the police talking about it, I heard them say she had been throttled or strangled". He went on to say in effect that he took it for granted that it was right, that the police ought to know and that otherwise he had no knowledge as to what caused her death.

12. The Crown Prosecutor lost no time in seeking to turn to account this doubtless unexpected admission. Before beginning the cross-examination of the prisoner he applied to recall the police witnesses. The prisoner's counsel objected but the presiding Judge decided to permit it. In the result after the close of the case for the defence seven officers of police were recalled and examined and cross-examined as to the possibility of someone having said that the dead girl was throttled or strangled and of the prisoner having heard it. When these witnesses had been called during the case for the prosecution they had in some instances given times when they came to the dwelling in a way which made it seem, erroneously as it turned out, as if that was their first arrival. It was necessary to clear these misapprehensions away. Although the evidence of none of the seven witnesses given when recalled was long, the cumulative effect was to bring into strong relief the admission made by the prisoner that he had used the word "throttled", to give great emphasis to the point made by the Crown Prosecutor upon it, as well as to the contradiction which was involved of the prisoner's evidence by so many witnesses and also to detract from any advantage the prisoner might obtain in placing before the jury by his personal evidence the answer he made to the charge as the final thing before the addresses of counsel and the charge to the jury by the judge.

13. Now an extremely strict rule has been adopted in the English Court of Criminal Appeal with respect to the discretionary power of a presiding judge to allow the prosecutor to call evidence after the close of the case for the defence. The rule is adopted from the language attributed to Tindal C.J. in the report of R. v. Frost (1839) 4 St Tr (NS) 86, at p 386. His Lordship is reported to have said: - "There is no doubt that the general rule is that where the Crown begins its case, like a plaintiff in a civil suit, they cannot afterwards support their case by calling fresh witnesses because they are met by certain evidence that contradicts it. They stand or fall by the evidence they have given. They must close their case before the defence begins; but if any matter arises ex improviso, which no human ingenuity can foresee, on the part of a defendant in a civil suit, or a prisoner in a criminal case, there seems to me no reason why that matter which so arose ex improviso may not be answered by contrary evidence on the part of the Crown"… The formula adopted from Tindal C.J. has little to commend it. The words "which no human ingenuity can foresee" hardly express a legal principle. They are rhetorical, but if literally understood they lay down a test which could almost never be satisfied. Clearly the principle is that the prosecution must present its case completely before the prisoner's answer is made… It seems to us unsafe to adopt a rigid formula in view of the almost infinite variety of difficulties that may arise at a criminal trial. It is 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 his defence… But the policy of these provisions strengthens the principle which makes a departure from the rule allowable only in exceptional circumstances. Further, although we have not thought it proper to adopt the formula of Sir Nicholas Tindal, the English cases make it plain enough that generally speaking an occasion will not suffice for allowing an exceptional course if it ought reasonably to have been foreseen. Again, it may be pointed out that even an unexpected occasion may be of such a nature that it would have been covered, had the Crown case been fully and strictly proved.

14. The application of these principles ought, we think, to have resulted in a refusal of the Crown Prosecutor's application to recall the seven officers of police. If the prosecution relied upon the fact, as an incriminating circumstance, that the prisoner used the word "throttle" at a time when only the guilty man could be aware how the dead girl was killed it was necessary as part of the Crown case first to prove that he used the word and then to exclude the reasonable possibility of his having become aware or of his supposing that she was throttled because of anything he saw or heard…

Fullagar J (would allow the appeal)

1. I have felt, in the course of considering this case, some doubt as to whether this Court ought to interfere, but I have come to the conclusion that special leave to appeal ought to be granted… In the present case the crime of which the applicant was convicted is a capital crime. I am clearly of opinion that the Crown ought not to have been permitted, after the close of the case for the defence, to adduce the further evidence which it did adduce.

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3. I entirely agree that the language which Tindal C.J. is reported in the State Trials as having used in R. v. Frost (1839) 4 St Tr (NS), at p 386 is altogether too strict and rigid, and ought not to be accepted as a formula. In the first place, I would regard the authority of the statement so often quoted as extremely doubtful. The words "ex improviso" and the words "which no human ingenuity can foresee" convey radically different meanings, the latter being in no sense a translation of the former…

4. These things having been said, however, it remains true and important that the Crown should be permitted to adduce evidence after the close of the case for the defence only in exceptional circumstances and when it is reasonably clear that the accused will not be unfairly prejudiced by the admission of the evidence. A wide discretion must be conceded to the judge presiding at the trial, but it should be regarded as limited in that way, and it is to be remembered that the practical effect of evidence on the minds of a jury may differ according as the evidence is adduced in chief or by way of replication. But the discretion ought not to be regarded as further limited or as governed by any rigid rule or formula. I would add that it is by no means clear to me that the same considerations are appropriate when the Crown proposes to call further evidence as are appropriate when the judge is thinking of calling a witness himself. It is impossible to foresee and provide a priori for the infinite variety of circumstances in which either question may arise.

Gibbs CJ, Murphy and Aickin JJ (would allow the appeal)

1. The question for decision on this South Australia is whether a trial judge may permit the Crown to adduce evidence after the close of the case for the defence to rebut an alibi sworn to by the accused in the course of his evidence, and not previously the subject of evidence at the trial, but which the Crown ought reasonably to have foreseen would be raised by the accused at the trial, because it had been put forward by him in earlier legal proceedings.

2. … The applicant had previously given evidence to the same effect when he appeared before a special magistrate in Sydney as respondent to extradition proceedings and had given the same version of events in an affidavit filed in support of an application for bail made to a judge of the Supreme Court. Although at the committal proceedings the applicant, who did not give evidence, did not refer to his alibi, the Crown should have foreseen that it was probable that he would raise it again at the trial. The Crown called no evidence in chief to rebut the alibi but after the case for the applicant had been closed called Mrs Eyles and her son, Kym Eyles, to show that it was not the applicant, but his wife, who delivered and picked up the child on 16 June. The sole question raised on the application before this Court is whether that evidence was rightly admitted.

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4. The principles in Shaw v. The Queen do not particularly refer to a case in which the accused has raised an alibi, but there is no reason why they should not apply to such a case. If the details of the alibi have not been disclosed before the trial, it will, in general, be right to say that the occasion for the calling of evidence to rebut the alibi could not have been foreseen… The situation will be different if the evidence sought to be given to rebut the alibi is merely confirmatory of the Crown case, as where the Crown attempts to rebut an alibi by evidence that the accused was near the scene of the crime at the time when it was committed: R. v. Hilditch (1832) 5 Car & P 299 [1832] EngR 607; (172 ER 986).

5. When the details of the alibi were disclosed before the trial, it cannot be said that the occasion for the giving of evidence to rebut it is unforeseeable. Although an alibi is not uncommonly referred to as a defence, no onus of proving an alibi rests on the accused; the prosecution must negative an alibi if one is put forward as it must negative a claim that the accused acted in self-defence or as a result of provocation: see Reg. v. Johnson (1961) 46 Cr App R 55 ; Reg. v. Taylor (1968) NZLR 981, at pp 985-986 . It is therefore difficult to see why the Crown should be allowed to take the exceptional course of calling evidence in rebuttal to refute an alibi, if details of the alibi were known and the refuting evidence could have been called in chief. In a number of cases a distinction has been drawn between alibis previously known to the Crown, and those which became known for the first time at the trial…

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8. In our opinion, the circumstances in which the evidence of Mr. and Mrs. Eyles was tendered in rebuttal were not very special or exceptional. It was foreseeable that the applicant would set up the alibi at the trial. Full details of the alleged visits to Mrs. Eyles had been given at the extradition proceedings. The Crown took none of the steps that were open to it to ascertain whether the applicant would persist in relying on the alibi. The evidence of Mr. and Mrs. Eyles, when given after the case for the applicant had closed, dealt a fatal blow to the applicant's case - a blow which unfairly gained force from the time when it was delivered.

Wilson and Brennan JJ (would dismiss the appeal)

8. There may be cases where the evidence which the Crown seeks to call in rebuttal of new matter introduced by the defence is at the same time confirmatory of the case which the Crown has sought to make. Such cases require the trial judge to exercise a discretion. He must ensure on the one hand that evidence which is clearly relevant to the Crown case - not marginally or minimally relevant - is not admitted in breach of the rule laid down in Shaw (1952) 85 CLR 365 merely because of its relevance to a fact first raised in the defence case (cf. Reg. v. Levy & Tait (1966) 50 Cr App R 198, at p 202 ); equally he must not exclude evidence which is in substance rebuttal evidence because some minimal or marginal relevance to the Crown case would have made it admissible in that case. The discretion must be exercised according to the circumstances of each case (cf. Reg. v. Miliken (1969) 53 Cr App R 330 ). (at p576)

9. And so the Crown is at liberty to call evidence in rebuttal of an alibi first set up by the defence in its case, at all events if the evidence does not go to confirm the prosecution case (cf. R. v. Hilditch [1832] EngR 607; (1832) 5 Car & P 229 (172 ER 986) ). The evidence of Mrs. Eyles and Kym Eyles was not confirmatory of an issue in the Crown case. To what issue could their evidence have been relevant before the applicant and his wife set up his alibi at the trial? It could not have advanced in the slightest the Crown case, which was that on Friday 16 June the applicant was committing a robbery in Adelaide, to adduce evidence that the Eyles had not seen him in Sydney on that day.

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12. It is not necessary to decide whether the Crown might have proved in its case the setting up of a false alibi in the extradition proceedings. It was under no obligation to do so. In fact no issue of an earlier false alibi was raised in the Crown case nor, for that matter, was that issue raised later in the trial. The only alibi raised for the jury's consideration was raised by the defence case at the trial. The only issue to which the Eyles' evidence was relevant was the truth of the alibi set up by the evidence of the applicant and Mrs. Killick in the defence case. Their evidence was relevant to disprove an alleged fact, namely, that the applicant was in Sydney during the day of Friday 16 June, and that matter had not been raised prior to the defence case. The admission of the Eyles' evidence did not split the Crown case on any issue

Gibbs CJ and Wilson J (would dismiss the Crown’s appeal against the order for a retrial)

1. The respondent, Louise Chin, was convicted in the District Court of New South Wales on a charge that on or about 29 August 1982 at Sydney he was knowingly concerned in the importation into Australia of prohibited imports to which s.233B of the Customs Act 1901 (Cth), as amended, applied, to wit, narcotic goods consisting of a quantity of heroin, and was sentenced to imprisonment for fifteen years with a non-parole period of seven years. He appealed to the Court of Criminal Appeal which allowed the appeal and ordered a new trial. From that decision the Crown now seeks special leave to appeal to this Court.

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5. At the trial both accused gave evidence and it was part of the case for each of the accused that he had had no previous relationship with the other. The Crown must have been aware, from the records made by the police of interviews with the accused, that the case for the accused would proceed along those lines. The Crown had in its possession application forms signed respectively by the respondent and by Choo for the purpose of obtaining visas to enable them to visit Australia. Each form showed a business telephone number of the applicant as 25357. Although it would have assisted the Crown's case against both accused to show that they had had some association in Malaysia, the Crown did not endeavour to prove, as part of its case in chief, that each had referred to the same telephone number on his application form, and did not at that stage tender either form.

6. At the conclusion of the Crown case, the respondent gave evidence. He said that he had been asked by a friend from Penang, who knew that he intended to visit Australia, to meet Choo who, it was said, did not speak English, and to show him around and entertain him. In the course of a long cross examination, he was questioned briefly about the application form and the form was marked for identification. He was not asked about the telephone number that appeared on the form, but was later shown a business letterhead which bore the number 25357, and said that that was the number of his father's escort agency, as well as the number of his own business. He was not, however, questioned about the fact that the same telephone numbers appeared on the two application forms - a fact that was not established by evidence until after the respondent had closed his case.

7. After the respondent had closed his case, the accused Choo gave evidence. He was cross-examined as to his application for a visa. He acknowledged his signature and admitted that the application form referred to the telephone number 25357, but stated that the form had been filled in for him and that he could not read it. Objection to further cross examination was taken by counsel for both of the accused on the ground that the application form was not Choo's document since he could not understand the language (English) in which it was written. In the course of argument the Crown Prosecutor said that it was his intention to tender the document in due course, adding that it could not have been tendered in chief. He indicated that he intended to seek an explanation from Choo concerning, amongst other things, the telephone number. The objection was overruled. The application form signed by Choo was marked for identification and cross examination proceeded. Choo repeated that he did not know why the number was on the form and said that he did not know of the escort agency conducted by the respondent's father.

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12. The principles that govern the exercise of the discretion of a trial judge to call evidence after the close of the case for the defence have been discussed in this Court in Shaw v. The Queen (1952) 85 CLR 365, at pp 378-380, 383-384, Killick v. The Queen [1981] HCA 63; (1981) 147 CLR 565, at pp 568-571, 575-576 and Lawrence v. The Queen (1981) 38 ALR 1, at pp 3, 7, 22-23. The general principle is that the prosecution must present its case completely before the accused is called upon for his defence. Although the trial judge has a discretion to allow the prosecution to call further evidence after evidence has been given for the defence, he should permit the prosecution to call evidence at that stage only if the circumstances are very special or exceptional and, generally speaking, not if the occasion for calling the further evidence ought reasonably to have been foreseen. The principle applies where the prosecution seeks to call evidence to rebut matters raised for the first time by the defence; if the rebutting evidence was itself relevant to prove the prosecution case (unless, perhaps, it was no more than marginally, minimally or doubtfully relevant: Reg. v. Levy and Tait (1966) 50 CrAppR 198, at p 202) and the need to give it could have been foreseen it will, generally speaking, be rejected. The principle would not prevent the prosecution from giving in reply evidence directed to an issue the proof of which did not lie on the prosecution, such as insanity, or from rebutting evidence of the accused's good character, provided that the prosecution had not anticipated the raising of an issue of this kind and led evidence with regard to it, for the prosecution must not split its case on any issue. Also, it has been held that evidence may be given in reply to prove some purely formal matter the proof of which was overlooked in chief.

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15. The evidence that Choo had used the respondent's telephone number in his application form was so material that fairness dictated that the prosecution should have given notice to the respondent of its intention to adduce the application forms in evidence. Had such notice been given, it would have been proper for the judge to have allowed the Crown Prosecutor to cross-examine the respondent regarding this matter, notwithstanding that the matters to which the cross-examination was directed could have been proved in chief if evidence was available. However, if such notice had been given, it is possible that neither the respondent nor Choo would have entered the witness box. Moreover, the evidence was elicited, not by the cross examination of the respondent, but, after his case had closed, in the cross examination of Choo. Had the respondent been asked whether Choo had used his telephone number, and if so why he had done so, he would have had an opportunity to furnish his explanation during the ordinary course of cross examination and re-examination. As it was, he had to return to the witness box to give his explanation, thus fixing the jury's attention on what was undoubtedly damaging evidence, and giving it an emphasis that it would not have had if the trial had taken its regular course.

16. It was a breach of the principles that have been discussed to tender the application form as part of the Crown's case in reply. However, the form was admitted only against Choo, and added nothing to the material already in evidence, although it may have given it further emphasis. Nevertheless, as we have shown, there were a number of unsatisfactory features touching the evidence: the use of the respondent's telephone number by Choo was first brought out in the cross examination of Choo after the respondent had given evidence and closed his case; the respondent had not been informed, before he elected to give evidence, of the Crown's intention to adduce the evidence; the sequence of events compelled the respondent, when all other evidence had been concluded, to re-enter the witness box in an endeavour to place an innocent construction on the evidence and thereby expose himself to cross examination on the very point the Crown had sought to make. In these circumstances the Court of Criminal Appeal was justified in concluding that the trial had miscarried and in ordering a new trial.

Mason J (would dismiss the Crown’s appeal against the order for a retrial)

I have had the advantage of reading the reasons for judgment of Dawson J. For the reasons which he gives, I would grant special leave to appeal and dismiss the appeal.

Brennan J (would allow the Crown’s appeal against the order for a retrial)

1. If the prosecution could have proved that Chin and Choo had used the same telephone number in Malaysia, that fact would have tended to show that they had had some association there, contrary to Chin's assertion that they had not. If Chin and Choo, before coming to Australia, had each signed or authenticated documents which showed the same Malaysian telephone number as his telephone number, that fact would have tended to show that they had had some association in Malaysia: not because the statement in one of the accused's documents could be used to prove against the other accused that the former had actually used the telephone number, but because the making or authentication by the respective accused of documents containing the same telephone number was not reasonably to be explained as coincidental. Rather, if such documents had been made by Chin and Choo, the fact of the making by Chin and Choo would support an inference that they had had some association with each other in Malaysia. The jury could find that no other inference was reasonably open. The prosecution had possession of documents which purported to be signed by Chin and Choo containing the same Malaysian telephone number, but they were admissible only on proof that Chin and Choo had signed them.

3. Thus there was nothing to suggest that the prosecution had the means of proving against Chin that Choo had signed a relevant document. But when Choo went into the witness box and exposed himself to cross-examination, the prosecution was able to prove by Choo's evidence - which was, of course, admissible against Chin - that Choo had signed a document containing the relevant telephone number. Only then was it open to the prosecution to prove the incriminating fact that Choo had signed a document stating his Malaysian telephone number to be the number which Chin had stated was his telephone number. There was, in my view, no splitting of the prosecution case; no holding back of what the prosecution was, or ought to have been, able to prove. That seems to me to be the end of the case.

Dawson J (would dismiss the Crown’s appeal against the order for a retrial)

13. Although other grounds of appeal were raised by Chin in the Court of Criminal Appeal, he succeeded in that Court on the ground that the prosecution had, in effect, split its case by cross-examining him about the telephone number on his visa application form and by tendering that form (the Court appears to have been under the misapprehension that it was Chin's form which was tendered) by way of reply. The other grounds of appeal were not considered by the Court of Criminal Appeal and do not fall to be considered here.

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15. The relevant principle is essentially one of fairness. The accused is entitled to know the case which he has to meet so that he may have adequate opportunity to determine what questions he may wish to ask in cross-examination, what evidence, if any, he may wish to call and what objections, if any, he may wish to raise in the case against him. Ordinarily the depositions upon which he is committed for trial will provide him with this information in advance and if the prosecution intends to call additional evidence it is required to give notice of its intention to do so. The whole procedure would be undermined if the prosecution were permitted, save in exceptional circumstances, to call evidence in support of its case after the close of the case for the defence.

16. The principle of fairness which underlies the general rule that the prosecution must lead the evidence, upon which it relies to establish its case, in the course of presenting that case, has an application beyond the exercise of the discretion to allow the reopening of the prosecution case. If in the course of cross-examination of an accused person or his witnesses, the prosecution asks questions with a view to eliciting evidence for the first time which could and should have formed part of its evidence in chief, then that evidence may be excluded in the discretion of the trial judge if its admission for the first time during cross-examination would unduly prejudice the accused, having regard to the obligation resting upon the prosecution to make its case known before the presentation of the defence case .

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18. When considering whether any unfairness arises, there is the circumstance that a witness may be re-examined, or further witnesses called, to deal with matters raised for the first time in cross-examination, if necessary after a sufficient adjournment has been granted or other accommodation made to allow for any unfair element of surprise. And it must always be remembered in this context that there may be matters peculiarly within the knowledge of an accused which the prosecution, although it is not able itself to call the accused as a witness, cannot be precluded from establishing in cross-examination if the accused goes into the witness box even though they be matters which support the prosecution case. It may be observed that if notice of intention to adduce evidence with respect to a particular matter is given by the prosecution and that matter is raised in cross-examination, even for the first time, there must be less force in any suggestion of unfair surprise. But there is no requirement that notice be given of the evidence which the prosecution intends to attempt to elicit during cross-examination and if the defence is alerted by notice to the fact that the prosecution intends to attempt to prove some matter by additional evidence, the notice will almost certainly refer to the calling of additional evidence in the prosecution case rather than during cross-examination. Nevertheless, such a notice may be of significance in determining whether questions asked during cross-examination constitute an unfair attempt to elicit evidence for the first time at that stage. It may be sufficient to alert the defence to some matter upon which the accused or his witnesses may be questioned if they are called to give evidence.

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25. The document was admitted only against Choo and Choo was acquitted. But that is no answer to the complaint made by Chin. As I have said, the visa application form signed by Choo constituted more than an admission by him that he used the telephone number in his application. It constituted evidence that the particular telephone number was in fact used by him and the jury would have found it difficult to have regarded it differently. The trial judge apparently thought that the document was only an admission by Choo and directed the jury accordingly. But his direction could hardly have overcome the prejudice caused to Chin by allowing the prosecution to tender the document in reply. The tendency of the evidence was to establish a connexion between Choo and Chin and was thought sufficient to require Chin to be recalled in order to provide an explanation of how Choo came to be in possession of the telephone number. This inevitably highlighted in an unfair way evidence which would not have received undue emphasis had it been led during the course of the prosecution case. The prosecution should not have been allowed to tender Choo's visa application form after the close of the cases for the defence. The trial of Chin miscarried, in my view, as a result of the document being admitted by way of reply.

Gleeson CJ, Gummow, Kirby and Hayne JJ (would dismiss the Crown’s appeal against the order for a retrial)

1. The respondent was charged with rape. At his trial in the District Court of Queensland, immediately before the prosecution closed its case, he formally admitted, pursuant to s 644 of the Criminal Code (Q), that on the date alleged in the indictment, he had carnal knowledge of the complainant. The only live issue for the jury was whether the prosecution had proved beyond reasonable doubt that the respondent acted without the complainant's consent. The jury returned the verdict "guilty".

2. The offence was alleged to have occurred in a house in Bowen, on or about 6 May 2000. On 19 May 2000, police interviewed the respondent. The interview was tape recorded. In that interview the respondent gave an account of what had happened between him and the complainant on the night of the alleged rape. The answers he gave reflected the fact that English was not his first language. In the course of a long and disjointed answer the respondent said that he had accused the complainant of taking his wallet. While the complainant was sitting in front of the house where the rape was alleged to have occurred, he asked her to give his wallet back and pulled at her hair. He went on to give an account consistent with them then having had consensual sexual intercourse inside the house.

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4. The police officer who had interviewed the respondent was called by the prosecution to give evidence. The prosecutor asked him no question about interviewing the respondent. Nor did the respondent's counsel. The tape was not tendered. The prosecution closed its case.

5. The respondent chose to give evidence in his defence. The account he gave in his evidence-in-chief was, in many respects, consistent with what he had told police but it did not deal with every matter to which reference was made in the interview. He did say that he had broken the complainant's necklace. In cross-examination, the prosecutor asked the respondent whether the complainant had been crying outside the house and whether he had pushed her onto the ground. The respondent denied both suggestions. The prosecutor then put to him that, in speaking to police on 19 May 2000, he had told police both that the complainant had been crying outside the house, and that he had pushed her onto the ground. The respondent denied saying these things to police. The prosecutor then played that part of the tape recording of the respondent's interview with police in which he admitted that the complainant had been crying outside the house, and that he had pushed her onto the ground. The respondent admitted that it was his voice on the tape. The respondent sought to explain what he had told police by saying, in effect, that he was scared and confused when interviewed.

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22. Proof that a witness has made a prior inconsistent statement can be given only if the witness "does not distinctly admit that the witness has made such statement" and only if the former statement is inconsistent with "the present testimony of the witness". In the present case, before the tape recording was played, the respondent denied that the complainant had been crying, he denied that he had pushed her onto the ground and he denied that he had told the police that she had been crying or that he had pushed her onto the ground. What he had told the police was inconsistent with what he had said earlier in the course of the prosecutor's cross-examination and thus was inconsistent with the present testimony of the witness. The circumstances of the prior statement "sufficient to designate the particular occasion" had been mentioned to the respondent. If attention is confined to s 18, as the appellant submitted it should be, the conditions specified in that section for the prosecutor, as cross-examiner, to prove that the respondent had made the prior statements to the police admitting that the complainant had been crying, and that he had pushed her to the ground, were satisfied.

23. Again, confining attention to the provisions dealing with prior inconsistent statements, it was then open to the cross-examiner to pursue alternative courses. The cross-examiner could have handed the witness a transcript of the interview, asked him to read it to himself, and then asked whether the witness adhered to his earlier testimony. If an affirmative answer had been given, the cross-examiner could then later seek to lead evidence of the making of the prior inconsistent statement. Alternatively, as occurred in this case, the cross-examiner could have asked the witness questions designed to establish the authenticity of the record of the prior inconsistent statement and then, in the course of the cross-examination, tender the tape in evidence. (The New South Wales practice of delaying the tender until the opening or reopening of the cross-examiner's case is not followed in other States.) In this case, the respondent's admission that his voice was heard on the tape rendered it unnecessary to adopt some other method of proving that he had made the earlier inconsistent statement. Once in evidence, the prior inconsistent statement was admissible as evidence of the facts stated in it.

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30. In the present case, the prosecution had available to it evidence of statements made by the respondent to police. The prosecution called the interviewing police officer. In this Court it was accepted that the statements which the respondent made to police were adverse to his interests; they were not merely and exclusively self-serving denials. If there were doubts about the admissibility of the record of interview, those doubts could have been resolved on a voir dire. If necessary, the record of interview could have been edited to exclude any objectionable parts. None of these steps was taken.

31. If the prosecution case was to be put fully and fairly, the prosecution had to adduce any admissible evidence of what the respondent had told police when interviewed about the accusation that had been made against him. To the extent to which those statements were admissible and incriminating, the prosecution, if it wished to rely on them at the respondent's trial, was bound to put them in evidence before the respondent was called upon to decide the course he would follow at his trial. To the extent that an otherwise incriminating statement contained exculpatory material, the prosecution, if it wished to rely on it at all, was bound to take the good with the bad and put it all before the jury. And consistent with what is said in Richardson v The Queen and Apostilides the prosecutor's obligation to put the case fairly would, on its face, require the prosecutor to put the interview in evidence unless there were some positive reason for not doing so. The only reason proffered for not doing so in this case was, as the Court of Appeal rightly found, not sufficient.

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43. Such a conclusion was not inevitable. If it were to be suggested that the trial judge should have intervened, of his own motion, either to restrict the prosecutor's cross-examination of the respondent, or to reject the tape recording even though there was no objection to its tender, or in some other way to prevent the prosecutor following the course that was taken, then there may be a serious question as to when, and on what basis, the judge should have acted. Furthermore, if trial counsel, by objection or argument, had invited a ruling on the cross-examination of the respondent, or the tender of the tape recording, there would have come into play discretionary considerations requiring attention, amongst other things, to the probative significance of the evidence. This point was made by Pincus JA in Burns, in a passage referred to by Cullinane J.

McHugh J (would dismiss the Crown’s appeal against the order for a retrial)

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56. In the present case, although the accused sought to explain his statements and maintained that the complainant did not cry, he agreed in cross-examination that it was his voice on the tape and that he had made the statements contained in it. Although views might differ as to whether he "distinctly" admitted the out-of-court statements put to him, I think the better view of his cross-examination is that he did. Because that is so, the statement was not admissible under s 18. Once the accused distinctly admitted making the statement, the Crown was not entitled to lead evidence to prove the prior statement. The section does not say that an inconsistent statement is admissible if the witness does not distinctly admit making the statement when first asked to admit making the statement. Once the opponent has the benefit of the admission, that is the end of the matter. The statements made by the accused could not be tendered because he had admitted making those statements. But that was not the ground upon which the Court of Appeal quashed the conviction of the accused. Cullinane J (with McMurdo P and Jones J agreeing) said:

"[O]nce a witness has his/her attention sufficiently drawn to the relevant occasion in a way that adequately identifies it and the witness does not admit the statement, the statement can be proved. It is not necessary that the witness persist in the denial after seeing a document or, as here, hearing the tape. In my view the requirements of the section were satisfied."

57. In this Court, the appellant raised no point about this holding of the Court of Appeal. But, for the reasons I have given, the Court of Appeal erred in so holding. Once a witness distinctly admits that he or she has made the inconsistent statement, the condition on which the admissibility of the statement rests disappears. It does not matter that the distinct admission was made reluctantly or as the result of a persistent cross-examination. Accordingly, once the accused distinctly admitted - even after a series of questions - that he made the statement put to him, the recording of that statement was not admissible under s 18. If the tape was admissible, it must be on a ground other than that permitted by s 18. Accordingly, the Court of Appeal should have held that, as a matter of law, the inconsistent statements of the accused were not admissible under s 18.

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59. To obtain leave, the prosecution must point to some exceptional circumstance that justifies it being given leave to re-open its case.

60. But I do not think the principle laid down in Shaw and similar cases is itself decisive in a case where the prosecution seeks to tender an inconsistent statement in rebuttal of the accused's case. The rationale of the Shaw principle is that the prosecution may not split its case. Speaking generally, after the accused has commenced his or her case, the prosecution cannot lead evidence that was admissible in the prosecution case-in-chief. When the prosecution tenders a statement as an inconsistent statement, the occasion for the tender only arises after the prosecution has closed its case. In the case of a defence witness, the statement cannot possibly be admissible until that time. In the case of the accused, it may be that the statement could have been tendered during the prosecution case - not as an inconsistent statement, but as an admission. If the prosecution then seeks to tender a statement on the ground of inconsistency when it was admissible as an admission, s 130 empowers the trial judge to reject the tender on the ground of "unfairness".

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77. The present case is complicated by the fact that the taped statement was admissible as part of the prosecution case, subject to the judge exercising his discretion to reject it on the ground that the accused had not been warned that anything that he said might be used in evidence. However, the prosecution did not seek to tender the tape in its case-in-chief. For all we know the trial judge may have admitted the evidence. If he had, the present argument could not have arisen. The accused could not have complained of any prejudice or breach of the law of evidence. However, there is a significant chance that the judge may have rejected the tape in the prosecution's case-in-chief. Because that is so, it would not be fair to the accused to decide the case on the basis that the tape was admissible in the prosecution's case-in-chief and that the accused has suffered no real prejudice by its admission.

78. If the prosecution had tendered the tape in its case-in-chief and the trial judge had rejected it on discretionary grounds, questions would have arisen as to whether it could or ought to be admitted in rebuttal as an inconsistent statement. In my view, the tape was admissible in rebuttal as an inconsistent statement. But its admissibility was subject to the unfairness discretion conferred by s 130 of the Act. If the tape had been rejected in the prosecution's case-in-chief on discretionary grounds, there must have been a strong chance that the judge would have exercised the s 130 "unfairness" discretion in favour of the prosecution. On the other hand, the judge may have exercised his discretion in favour of the accused. But at no stage did the accused object to the admission of the tape, and, as I have mentioned, the prosecution did not attempt to tender the evidence in chief, as it should have.

Callinan J (would dismiss the Crown’s appeal against the order for a retrial)

104. The strictness of the rule appears to have been relaxed subsequently to some extent in the United Kingdom Killick v The Queen, which holds that the prosecution may only call evidence not foreseen and not reasonably foreseeable in rebuttal, continues to state the law in Australia on the topic. A clear rule is desirable because of the disproportionate impact that evidence for the prosecution called after the defence case is likely to have on the jury.

105. In this appeal the appellant argued that Niven was wrongly decided and should be overruled. As will appear, it is unnecessary to decide whether that is so, because, in my opinion the position in Queensland is now governed not only by s 18 of the Act but also other provisions of it not in force in Tasmania when Niven was decided, and not referred to in the Court of Appeal in this case.

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113. I return now to this case. In my opinion, the contents of the interview and the recording of it were admissible and could have been tendered by the prosecutor in the Crown case. Any doubts that the prosecutor might have had as to their admissibility could and should have been resolved following argument in the absence of the jury. It is the responsibility of the Crown to call all relevant available evidence, both favourable and unfavourable to an accused. If an inculpatory statement by an accused also contains self-serving or exculpatory matter then the Crown must take the exculpatory with the inculpatory, and tender the whole statement. This is the course which should have been followed here. So too, the respondent could have insisted that the whole of the recording be tendered if he wished. To that extent the trial miscarried.

Howie J

1. These are my reasons for directing the Crown to call evidence of a witness, Dr Skinner, in its case and not in reply.

2. The accused, Stephen Anthony Fraser, stands trial on three counts of murder, the victims in each of the charges being one of his three young children. When he was arraigned before the jury panel, the accused pleaded not guilty to each count of murder but guilty to manslaughter. The Crown refused to accept those pleas in full discharge of the indictment. The jury was then empanelled and the trial on the counts of murder proceeded.

3. In his opening to the jury the Crown Prosecutor stated that he anticipated that the real issue in the trial would be the accused’s claim that, at the time of the killing of each of his three children, he was substantially impaired by reason of an abnormality of mind arising from an underlying condition. This is a defence to a charge of murder under s 23A of the Crimes Act.

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10. However, during the course of argument and after I had indicated my initial view that the section contained no such discretion, reference was made to s 151(3) of the Criminal Procedure Act. Section 151 concerns the obligation of an accused to notify the Crown of an intention to adduce evidence tending to prove the defence under s 23A. Section 151(3) provides:

Any evidence tendered to disprove a contention of substantial mental impairment may, subject to any direction of the Court, be given before or after evidence is given to prove that contention.

Section 151(6) provides:

In this section a contention of substantial mental impairment means a contention by the accused person that the accused person is not liable to be convicted of murder by virtue of section 23A of the Crimes Act 1900.

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17. I do not believe that there is anything in the line of authority to which I have referred or the principle that the Crown must not split its case, that would prevent the Crown from adducing evidence of a psychiatrist, as to the mental state of the accused at the time of the killing, to rebut evidence in support of the defence under s 23A and where that evidence is not otherwise relevant to prove the offence. In so far as Dawson J stated anything in Chin to the contrary, I believe it is inconsistent with other statements made in the cases to which I have referred and, in particular, with what was said in the joint judgment of Gibbs CJ and Wilson J in Chin in the passage quoted above. There is nothing in Soma that suggests that the principle is not as stated in the joint judgment. In Soma the evidence called in reply contained evidence of admissions in proof of the offence charged.

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19. But whatever may have been the situation at common law, it seems clear to me that the principle has been affected by s 151(3). I can see no reason why that section should be construed other than in accordance with its terms and unaffected by any common law rule that it may have displaced.

20. On its face s 151(3) provides the Crown generally with a discretion as to whether to call evidence to rebut the defence under section 23A either in its case-in-chief or in reply. However, in an appropriate case the trial judge may be required to intervene and give a direction as to when that evidence should be called. This will usually be necessary because it would be unfair to the accused if the evidence were to be adduced in reply. The need for that direction might arise, for example, because the evidence relied on by the Crown is part of the facts and circumstances surrounding the killing and, therefore, would more appropriately be adduced in the Crown case. Another example may be where the evidence has a prejudicial effect that might operate unfairly against the accused if it were the last evidence to be heard by the jury. Yet another example may be where, although the evidence is tendered to rebut the defence, it is also relevant to either establish or disprove an element in the Crown case, such as an intention to kill.

21. But where the evidence is expert opinion given by a professional such as a psychiatrist or medical practitioner, and is relevant only because the defence intends to rely upon s 23A, I find it difficult to see how the intervention of the Court to interfere with the discretion vested in the Crown by s 151(3) could usually be justified let alone warranted.

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25. It seems that in respect of s 405A the question as to when in the proceedings the rebutting evidence should be called was usually raised by an application by the Crown for a direction under the section that it be permitted to call the evidence in reply rather than in the Crown case. I assume that this form of procedure arose in deference to the common law rule rather than as a result of anything in the wording of the section. It is perhaps of no real consequence how the issue is raised, and the Crown is in the best position to know whether it intends to call the evidence in its case or in reply. But the procedure adopted should not be allowed to dictate the result. In my view, it should be borne in mind that s 151(3) is permissive in that it relieves the Crown of the restriction placed upon it by the common law. The onus is upon the defence to show why the Crown should be subject to an order preventing it from calling the evidence in reply.

McClellan CJ at CL

1. The appellant was convicted after trial of 5 counts of sexual assault and another count of detaining for advantage. Each of the offences was committed on the complainant LM. There was only one issue raised on the appeal being whether the trial judge erred in allowing the Crown to reopen the Crown case.

2. One of the counts in the indictment was an allegation of sexual intercourse with the complainant without her consent and knowing she was not consenting which allegedly occurred on 30 July 2006. When the complainant was being cross-examined she was shown a video of her performing a sexual act on the appellant. She agreed that the video showed both her and the appellant and was asked:

“Q:        Is that also an occasion when you were consenting to perform oral sex upon [the applicant]?

A:           I dare say it would be.”

3. She was then asked:

“Q:        Ma’am, I put it to you that the first video that you saw was taken at 4.06 pm on 30 July?

A:           Dates can be changed on phones.”

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7. During the course of her re-examination by the Crown Prosecutor the complainant was reminded of the video footage. She said that no one other than the appellant and herself were present when the video image was created. She said that the events shown on the video occurred “around 2 weeks before he was arrested” being a date earlier than 30 July 2006. After objection she was then permitted to state that the image was not recorded on the phone which defence counsel sought to tender. She said that she was “pretty positive” that the event occurred before the mobile telephone proffered by defence counsel had been purchased.

8. During the course of discussion in relation to whether the prosecutor could ask these questions the trial judge indicated that the issue of whether the incident recorded on the mobile phone occurred earlier than the date alleged in the indictment was a matter that required explanation. His Honour suggested that there may be a need for the Crown to call evidence to establish “as a matter of expert evidence that you can transfer video material from one mobile phone to another.”

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10. During the course of the solicitors’ evidence defence counsel tendered the mobile phone. No objection was taken by the prosecutor.

11. The following day the Crown Prosecutor returned to the issue of the mobile telephone and indicated that he had not objected to its tender because defence counsel had told the prosecution that an expert was being flown to Port Macquarie (where the trial was being held) to give evidence about the mobile phone. The prosecutor said “knowing, I thought, that an expert would be called today and the Crown would have an opportunity to explore the workings of that particular Nokia telephone” objection was not taken to the tender.

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13. The defence case was closed without an expert being called. The Crown Prosecutor then sought leave to reopen the Crown case to call an expert. As the prosecutor had foreshadowed it was submitted that if the Crown had been aware that the defence was not going to call an expert the Crown would have objected to the tender of the telephone.

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30. In my view the appellant’s submission should be accepted. The question of whether the circumstances are “very special” or “exceptional” is to be determined having regard to all of the relevant circumstances. As the passage which I have extracted from Chin makes plain one of those circumstances, which may itself be determinative is whether the need to call further evidence “ought reasonably to have been foreseen.” That issue is not to be resolved as a separate question although of considerable significance when determining whether the application to reopen should be granted.

31. In the present case the issue arose during the prosecution case. Irrespective of whether the defence intimated that an expert would be called in the defence case if the video came into evidence, once the issue was raised the prosecutor should have realised the need for the Crown to call expert evidence. To my mind there was nothing very special or exceptional about either the evidence or the circumstances in which it became relevant. Furthermore, although the trial was taking place in Port Macquarie there was no suggestion that the Crown was not in a position to call an expert during its case. As the transcript indicates the relevant evidence was brief, the issue being confined.

Buddin J

37. I agree with McClellan CJ at CL.

Barr AJ

38. I agree with McClellan CJ at CL.