Full Court Minute Books

Case M77/2023

Obian v. The King

Case No.

Case no M77/2023

Case Information

Lower Court Judgment

16/02/2023 Supreme Court of Victoria (Court of Appeal) (Priest, Niall & Macaulay JJA)

[2023] VSCA 18


Criminal law – Reopening of prosecution case – Substantial miscarriage of justice – Proper test for re-opening under s 233(2) Criminal Procedure Act 2009 (Vic) – Where appellant charged with three counts of trafficking in not less than commercial quantity of 1,4-butanediol (“1,4-BD”), which is drug of dependence except when possessed or used “for a lawful industrial purpose and not for human consumption” – Where defence case was that appellant imported and used 1,4-BD in course of his cleaning business – Where prosecution case was appellant imported and possessed 1,4-BD for purposes of sale for human consumption – Where after close of prosecution case, appellant gave evidence, which included admitting hiring HiAce van but did so on behalf of another person – Where part-way through appellant’s cross-examination, prosecution granted leave to re-open its case to call evidence from surveillance operatives to rebut aspects of appellant’s evidence about his hiring of van – Where majority of Court of Appeal refused appellant’s application for leave to appeal against conviction – Whether trial judge erred in permitting prosecution to reopen prosecution case under s 233(2) of Criminal Procedure Act and that substantial miscarriage of justice occurred as result.


13/10/2023 Hearing (SLA, Canberra by video connection)

27/10/2023 Notice of appeal

01/12/2023 Written submissions (Appellant)

01/12/2023 Chronology (Appellant)

12/01/2024 Written submissions (Respondent)

02/02/2024 Reply

15/03/2024 Hearing (Full Court, Canberra) (Audio-visual recording)

15/03/2024 Outline of oral argument (Appellant)

15/03/2024 Outline of oral argument (Respondent)