Obian v The King

Statutes – Construction – Statutory powers – Where s 233(2) of Criminal Procedure Act 2009 (Vic) provides that prosecution may, with leave of 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" having regard to accused's response to summary of prosecution opening and accused's response to notice of pre trial admissions – Where appellant convicted on charge of trafficking in drug of dependence – Where evidence of prosecution included evidence of alleged co conspirator that appellant hired van involved in moving drugs – Where appellant gave evidence that he hired van on behalf of friend and handed van over to friend and had nothing more to do with van – Where prosecution applied for leave to adduce evidence in reply – Where prosecutor stated appellant's evidence was first time appellant said he hired van and that appellant previously denied being at car rental place – Where statements incorrect as prosecution had been previously informed appellant admitted he hired van – Where trial judge granted leave for prosecution to adduce evidence in reply – Whether exercise of power under s 233(2) of Criminal Procedure Act involved substantial miscarriage of justice because of prosecutor's incorrect statements – Whether incorrect statements material to trial judge's decision – Whether evidence was not reasonably foreseeable – Whether trial judge permitted to have regard to any relevant material or only to two specified documents in s 233(2).

Words and phrases – "evidence which could not reasonably have been foreseen by the prosecution", "exceptional circumstances", "exhaustive or merely inclusive", "incorrect inference", "material error", "material misunderstanding of the relevant facts", "not reasonably have been foreseen", "reasonably foreseeable", "substantial miscarriage of justice".

Criminal Procedure Act 2009 (Vic) – ss 183, 233(2).

Drugs – Poisons and Controlled Substances Act 1981 (Vic), s 71AA.