Obian v The King

Case [2024] HCA 18

HIGH COURT OF AUSTRALIA

GAGELER CJ,
GORDON, GLEESON, JAGOT AND BEECH‑JONES JJ

SAER OBIAN  APPELLANT

AND

THE KING  RESPONDENT

Obian v The King

[2024] HCA 18

Date of Hearing: 15 March 2024
Date of Judgment: 8 May 2024

M77/2023

ORDER

Appeal dismissed.

On appeal from the Supreme Court of Victoria

Representation

B W Walker SC with C T Carr SC and H L Canham for the appellant (instructed by Milides Lawyers)

E H Ruddle KC with G L Buchhorn for the respondent (instructed by Office of Public Prosecutions (Vic))

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

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.

  1. GAGELER CJ, GORDON, GLEESON, JAGOT AND BEECH-JONES JJ.   As 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".[1] 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…

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Obian v The King [2024] HCA 18
Case
[2024] HCA 18
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by the appellant, Obian, against his conviction for trafficking in a drug of dependence. The dispute arose from the trial judge's decision to grant the prosecution leave to adduce evidence in reply, pursuant to section 233(2) of the *Criminal Procedure Act 2009* (Vic). The prosecution's case alleged the appellant hired a van used in the transportation of drugs. The appellant testified that he hired the van on behalf of a friend and had no further involvement with it.

The central legal issues before the High Court were whether the trial judge erred in granting leave for the prosecution to adduce evidence in reply, and whether this decision involved a substantial miscarriage of justice. This question turned on whether the appellant's evidence could have reasonably been foreseen by the prosecution, given the appellant's prior responses to the prosecution's opening and notice of pre-trial admissions. The Court also considered the proper construction of section 233(2) of the *Criminal Procedure Act 2009* (Vic), specifically whether the trial judge was limited to considering only the two specified documents or could have regard to other relevant material.

The High Court reasoned that the construction of section 233(2) should permit the trial judge to consider the two specified documents and any other relevant material to accurately determine if the accused's evidence was reasonably foreseeable. This approach aligns with the statutory objective of encouraging compliance with pre-trial procedures and ensuring the power to admit reply evidence is exercised on a proper factual basis. The Court found that the appellant's evidence, that he hired the van for a friend and had no further involvement, was not reasonably foreseeable by the prosecution, particularly in light of the prosecution's understanding of the appellant's prior admissions.

Consequently, the High Court concluded that the majority in the Court of Appeal were correct in finding that the trial judge did not err in exercising the power under section 233(2) of the *Criminal Procedure Act 2009* (Vic). The appeal was therefore dismissed.

Orders

Orders of the court

Appeal dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

There is also a construction of s 233(2) available which accords with the statutory text, recognises the context of a criminal trial, and can fulfill the statutory objective. That construction is to require the trial judge to have regard to the two specified documents and to permit the trial judge to have regard to such other matters as may be relevant to ensure that the trial judge can determine the central question (has the accused given evidence which could not reasonably have been foreseen by the prosecution) on an accurate basis. This outcome achieves the object of encouraging an accused's compliance with the pre-trial procedure provisions and ensures that a fundamental power in a criminal trial is exercised only on a proper factual foundation, thereby avoiding a risk of unfairness to either the accused or the prosecution. This non‑exhaustive construction, moreover, avoids an unsatisfactory alternative construction to the effect that the power in s 233(2) depends exclusively on consideration of the two specified documents, but the discretionary decision whether or not to exercise that power enables consideration of all relevant circumstances. Nothing commends such a circuitous and unnecessarily complex approach to a provision which is readily able to be construed as mandating consideration of two documents, but not prohibiting consideration of any other matter relevant to the central statutory question of the reasonable foreseeability of the evidence as given by the accused. Prosecution's and appellant's evidence In the present matter, the prosecution's case on charge 3 was that the appellant participated with others in the transportation of the drugs of not less than the applicable commercial quantity by hiring the van in which the drugs were moved around Melbourne early on 14 June 2016 and being present at the time of those movements of the van. The evidence for the prosecution included that of an alleged co‑conspirator, Khaled Moustafa, who said that the appellant had been storing the drugs in a storage unit Mr Moustafa had available. On 13 June 2016 the appellant and another person, Omar Bchinnati, picked Mr Moustafa up and they tried to work out a location to which the drugs could be moved. Amongst other things, Mr Moustafa called Bilal Allouche asking if Mr Allouche could urgently hire a van for them. Mr Allouche could not assist. Mr Moustafa said he then drove the appellant to other premises, from which the appellant left to hire a van to move the drugs. When the appellant returned with the hired van, Mr Moustafa and the appellant, with others (not including Mr Allouche), moved the drugs. The evidence for the prosecution also included that of Ms Wang, the woman at the car rental place. She said that a very fat man needed an urgent rental car just after midnight on 14 June 2016 to "move a box". Because this man only had a debit card, not a credit card, Ms Wang told him that she would require a cash bond of $800. According to Ms Wang, the man left and returned with the bond money, produced a licence in the name of "Saer Pbian", and gave a telephone number (which was registered to the appellant). Ms Wang completed the rental and provided this man with a white Toyota HiAce van.

Decision

Reasons for decision

GAGELER CJ, GORDON, GLEESON, JAGOT AND BEECH-JONES JJ (dissent)
For these reasons, it cannot 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. Conclusion The majority in the Court of Appeal were correct to conclude that the trial judge did not err in exercising the power in s 233(2) of the Criminal Procedure Act to permit the prosecution to adduce the evidence in reply in the circumstances of this case. The appeal should be dismissed.

Ratio Decidendi

Legal Principle Established

Established by:

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