Obian v The King

[2024] HCATrans 17

[2024] HCATrans 017

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M77 of 2023

B e t w e e n -

SAER OBIAN

Appellant

and

THE KING

Respondent

GAGELER CJ
GORDON J
GLEESON J
JAGOT J
BEECH‑JONES J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 15 MARCH 2024, AT 10.00 AM

Copyright in the High Court of Australia

MR B.W. WALKER, SC:   May it please the Court, I appear with my learned friends MR C.T. CARR, SC and MS H.L. CANHAM for the appellant.  (instructed by Milides Lawyers)

MS E.H. RUDDLE, KC:   May it please the Court, I appear with my learned friend MR G.L. BUCHHORN for the respondent.  (instructed by Office of Public Prosecutions (Vic))

GAGELER CJ:   Thank you, Ms Ruddle.  Mr Walker.

MR WALKER:   Please the Court.  Your Honours, in the fifth trial of these offences the Crown was permitted, as we would put it, to speak its case on a question which, for the reasons I am about to explain, were at the heart of the Crown case against our client.  The first stage of the argument is to seek to persuade your Honours that the exercise of discretion by which that was permitted was wrong.  It was permitted by reference to provisions of the Criminal Procedure Act to which I am going to turn immediately.

I note in passing that though we have observed in our written submissions that in the Court of Appeal – majority of reasons of Justice Macaulay – an error is made concerning the lack of any precursor provisions, that scarcely informs the proposition of error which turns upon the proper understanding of the extant provisions.

GORDON J:   Is that to say any more than you are not limited to the two categories of document identified in the provision, and if you look more broadly you get a different result?

MR WALKER:   That is very much the wrap-up of the first part of what I will call our interpretation argument, and I can ‑ ‑ ‑ 

GORDON J:   I am sorry, I did not mean to cut through it, but ‑ ‑ ‑

MR WALKER:   No.  I am grateful to your Honour.  May I try to wrap that part up now – you have read our arguments on it.  The difference is between a view that says the “having regard to” provisions to which I am about to come should be understood as having regard exclusively to, and for the reasons we have argued, by far the preferable reading, given the setting in which the discretion is to be exercised and against the expectation of an attempt to achieve a fair trial, it is simply absurd to leave out of account, for example, something equally as formal as an alibi notice.  But you should not pay regard to that, apparently.  There are, as you have seen in the ‑ ‑ ‑

BEECH‑JONES J:   Mr Walker, I think Justice Macaulay would say you would, on the exercise of discretion.

MR WALKER:   I understand.  That is why I do not want to spend too much time on it.  It is the difference between the discretion being enlivened – that is, the statutory discretion being enlivened, we know that the statute preserves a common law discretion – and it having been enlivened in a House v The King sense as to whether error is shown by failing to take into account, say, a relevant consideration.  The difference may not be a very large one in this case, but for what it is worth, we do put that the discretion, the statutory discretion, which is the one exercised, simply was not enlivened on a proper understanding of the Statute.

There is, however, another aspect in further answer to Justice Gordon’s question to me.  You will appreciate, as proposition 1 in our outline tries to summarise, that these are provisions which sequentially address aspects of the running of a criminal trial and modify, to a degree, the previous – be it statutory or common law – procedure.

It is a question as to how they are intended to be understood against the expectation that in the absence of clear words to the contrary, the core of the accusatorial principle would not be expected to be disturbed.  And it is in that regard, of course, that we draw to attention that these are provisions, by the details to which I am about to come, that call for an election whether the accused is to give evidence or to call witnesses only after the close of a prosecution case, a preservation of the position at common law in light of the accusatorial principle which casts light, in turn, on the apparent obligation through counsel to present, as it is called, a response to the prosecution opening before the prosecution case has closed – indeed, before it has opened.

That is a context in which, in our respectful submission, it emerges that the expectation that Justice Macaulay, in effect, imposes upon persons in the position of our client, is contrary to the way in which the statute is intended to operate.   Can I take you directly to the statute.  It is the Criminal Procedure Act 2009, picking it up in the text that your Honours have in Part A of the authorities, page 9.  Briefly drawing attention to the sketch contained of purposes in section 1, one sees that there is explicit reference to:

disclosure requirements for the prosecution –

And you see in paragraph (a) that the familiar phrase of:

clarify, simplify and consolidate –

is used.  There is nothing in the purposes that provides any hint that fundamental or drastic entrenchment is intended upon the accusatorial principle.  When I refer to the “accusatorial principle” I am referring, in this case, to that aspect of it which calls for the Crown to complete its case in whole against the accused before the accused is put to an election as to whether to give evidence or to call any witness.

In section 182, part of the procedures which, as I say, had had a degree of previous variations in 1993 and 1999.  In section 182 there are two forms of prosecution document.  One is a “summary of the prosecution opening”, and that name pretty much does describe it.  The other is a “notice of pre‑trial admissions”, alas that does not really describe the document, but we will come to that.  Under subsection (2):

The summary of the prosecution opening must outline –

(a)the manner in which the prosecution will put the case –

and has to outline:

the acts, facts, matters and circumstances being relied on to support a finding of guilt.

I am at a loss to explain to your Honours why (a) and (b) would be different from each other but, in any event, that is what is stipulated.  Under subsection (3), the so‑called:

notice of pre‑trial admissions –

is not to be confused with the familiar way by which, for example under section 191 of the Evidence Act, there can be facts admitted formally to be put before the jury as such.  Neither, of course, are we talking about admissions by the prosecution.  We are not even talking about, in a technical sense, admissions being sought by an accused.  Rather, it is the identifying of:

statements of the witnesses whose evidence, in the opinion of the DPP –

So, it is a prosecutorial judgment by reference to what is appreciated at that stage of the proceedings, concerning issue and contest:

the statements of the witnesses whose evidence . . . ought to be admitted as evidence without further proof –

Which might mean, merely, that the statements can be placed before the jury who can be instructed to treat that as evidence.  It might be – picking up on other provisions in the Act – that they are statements that can be openly read from by the witness in order to place their contents in evidence.  In any event, one sees – no doubt, not exhaustively – examples are given of a familiar kind which do lend themselves to true admissions; continuity, age and matters of plans and photography.

In section 183, again sequentially, there is a response called for – this is all pre‑trial – and under subsection (1), the obligation on the accused is to serve the response to the summary, and the response to the notice of pre‑trial admissions.  Similar language is used in subsections (2) and (3), which stipulate for the content or manner of that response.  The response to the opening has to:

identify the acts, facts, matters and circumstances with which issue is taken and the basis on which issue is taken.

Similarly, under subsection (3):

The response of the accused to the notice of pre‑trial admissions must indicate what evidence . . . is agreed to be admitted as evidence without further proof and what evidence is in issue and, if issue is taken, the basis on which issue is taken.

If that language in subsections (2) and (3) had remained without any further provision in the statute, there would be an obvious occasion, notwithstanding the absence of any such purpose explicitly in section 1 of the Act, to inquire whether this was, in fact, a very large reversal, indeed, of an aspect of the accusatorial principle; a core aspect.  But subsection (4) puts paid to any such large reform because whatever else is meant by identifying:

acts, facts, matters and circumstances with which issue is taken and the basis on which issue is taken.

or the same with respect to evidence, it does not call by requirement on the accused for the identification of any witness, other than the separately provided for case of experts.  And, of course, not being required to state the identity of any witness would be an idle stipulation if nonetheless you were required to provide, by explanation, information from which the identity could be inferred.  Under paragraph 183(4)(b), furthermore, this is notwithstanding what is possible as a matter of ordinary English from the basis on which issue is taken, this is not an occasion upon which there is accelerated the time when the accused elects to give evidence.

GLEESON J:   So, the possible bases on which issue is taken, that the fact is not admitted or the fact is denied or ‑ ‑ ‑

MR WALKER:   Yes.

BEECH-JONES J:   But at least scope for the accused to make a judgment as to what they will say and what they will not say, does it not?

MR WALKER:   My word, because the accusatorial principle does not always mean it is in the accused’s interests to remain ugga‑mugga about the accused’s position.

BEECH-JONES J:   And did they make a forensic decision?

MR WALKER:   Absolutely.  They make the decision in their interests.

BEECH-JONES J:   Yes, and forensic consequences flow as in all cases.

MR WALKER:   Yes.  However – and that is an important point in the way in which we criticised Justice Macaulay’s approach – it does not follow from that – which is entirely proper – that forensic consequences flow from not doing more than one is obliged to do in terms of the splitting the case discretion to which I am about to come.

GORDON J:   What about section 184 in that context?

MR WALKER:   I am about to come to it, your Honour. 

GORDON J:   Thank you.

MR WALKER:   As you have seen in our argument, it is important to bear in mind that, as a result of the way in which section 183 is to be understood, it is not to be supposed that, either in that document or in a later presentation of that document to which I am about to come, it would be proper to require the accused to tell the jury about evidence which had not yet been elected to be given.  It would be quite wrong for there to be permitted to be something which would bear some strange, distorted avatar of dock statements.  And I will come to the way in which the presentation provision works.

At the stage in the sequence of trial that section 183 contemplates, we are not talking about documents which include, so to speak, proofs of evidence.  Section 184, about which Justice Gordon has asked me, imposes procedural obligations, which appear to be pre-trial, by reference to the expression: 

must so inform the court and the other party in advance of the trial –

And section 185, of course, is an aspect of what would be a position in any event concerning prosecution disclosure.  Section 184 reflects the facts that circumstances can change, and that pre‑trial – that is, up to the beginning of the trial – the documents referred to in section 183 as well as the documents to which they respond under section 182 that need to be, as it were, updated. 

I draw to attention the familiar provisions re‑enacted here in section 190 concerning alibi evidence, and we have also drawn to attention in our written submissions.  Again, familiar provisions – see section 189 – about expert evidence being species of matter in a case which have for a long time been the subject of statutory requirement entrenching upon the accusatorial principle with respect to disclosure in advance of the trial, and certainly before the prosecution case has closed by the accused. 

GORDON J:   In relation to alibi evidence, you have just taken us to 190.  I know that subsection (4) identifies a level of particularity in a notice of alibi. 

MR WALKER:   Yes, and not just the particularity of what I will call the alibi itself but also enlisting the assistance of the accused to the authorities, including the prosecution, about the witness.

GORDON J:   And is it limited to what is set out in subsection (4)? 

MR WALKER:   Yes.

GORDON J:   Thank you.

MR WALKER:   When your Honour says “limited”, that is a very ample scope of information:

particulars as to time and place of the alibi –

et cetera.  Now, can I then take you – we are now into Part 5.7, “Trial”.  We have been in Part 5.5.  In the book it starts at page 18, Division 4, the provision in section 224 concerning the “Opening address by prosecutor”; an obligatory step.  You see that there is a relation back by subsection (2) to, among other things, the state of affairs under section 182 – the summary and pretrial admissions documents.  There is then, in section 230 – sorry, there is then, in section 225, a requirement – sequentially it is “immediately after the prosecutor’s opening”.  So, it is before the first evidence is called for the prosecution:

if represented –

the accused:

must present . . . the response of the accused to the prosecution opening prepared in accordance with Part 5.5.

That is subsection 183(2), to which I have taken you to earlier.  Now, leaving aside some possibilities that may or may not be theoretical, that do not matter in this case, raised by the word “if” with which subsection (2) of section 225 commences, one sees that there is an intended reflection, similar for the defence as for the prosecution, of the accused’s response by reference to what had been served under subsection (2) of section 183.  

Again, bearing in mind that this is counsel addressing the jury before any evidence has been given for the Crown, and, by definition, before any election is called for by the accused, it would be alien to the exercise for that to call, by way of obligation, for there to be reference to material which may never be before the jury.

BEECH-JONES J:    Right.  So, Mr Walker, going back to – just looking at that in light of section 183, which gives the accused scope, they are not obliged to, but they can give a fulsome statement of their defence.  Even a positive one if they wanted to.  If they did that, they then obtain the forensic advantage of being able to open that positive defence and plant it in the jury’s mind by reference to 225(1), would they not?

MR WALKER:   The short answer to all that is yes, subject to the proprieties I have referred to.  There may be cases, and they might be readily imaginable, where counsel would be in a position, particularly if asked by a judge, to say, well, yes, I will be calling that evidence; that if things were to change, or if insufficient thought were given to the reality of the election which had not yet been exercised, then obviously there would be a real problem of needing to abort a trial if there had been such statements to a jury, and let us suppose, persuasively put, but no evidence called.

BEECH‑JONES J:   If the accused simply said, I do not admit, then their opening under 225(1) would be a pretty anodyne and boring statement, would it not?

MR WALKER:   Yes.  One remembers that – although your Honour understandably calls it an opening, there is another stage I am going to come to.

BEECH‑JONES J:   Of course, the response.

MR WALKER:   This is actually the presentation of the response – indeed, so much as it related to that document that you have the perhaps unnecessary provisions of subsection (4) dispensing one from a verbatim presentation of it.

BEECH‑JONES J:   But this is as the jury are empanelled, before we hear the Crown’s evidence.

MR WALKER:   That is right.

BEECH‑JONES J:   That is right.  So, it is not a bad time to get your case in, if that is the course you want to take.

MR WALKER:   That is right.  However, as I have said, there are proprieties involved in terms of what you tell a jury, bearing in mind the course of the trial, you are not committed to call that evidence.  Now, what matters, obviously enough, is, we say there is no impropriety, no unlawfulness in an accused deciding not to take the forensic advantage that Justice Beech‑Jones is being asking about – and which I accept is a reality – but rather, decides to exert, correctly, the right of – it is fairly to be called a “right” – not to say more than the statute had required.

Now, your Honours have seen, we have drawn to attention the Court of Appeal’s decision in Alfarsi – I do not need to take your Honours to it – but it suffices to say that there, their Honours closely considered and rejected the notion that there was some drastic entrenchment upon the accusatorial principle by these provisions, and strongly, through their explication of what it meant to provide a basis for taking issue – for their being something based in issue – and strongly supported the proposition that one could say, for example, as would frequently be the case, that certain facts depend upon the evidence of a witness who was unreliable, for example – a Crown witness, that is.  In section 226 – again working through sequentially – and under the heading “Case for the accused”, it is:

After the close of the case for the prosecution –

an expression which plainly carries in its train the significance of that under our system of accusatorial trial:

After the close of the case for the prosecution, an accused is entitled –

to do certain things, and it includes, obviously, the exercise of an option of whether to give evidence – see paragraphs (b) and (c).  Under section 227, where somebody’s professional obligations as counsel for the accused engaged by reason of representation, the trial judge as the power to question counsel in order to determine which of those options are being taken.  Under section 230, with respect to evidence, that questioning could include the trial judge calling on accused to provide “names of witnesses” where the accused “intends to call witnesses”, and one can see the evident intent with respect to the efficiency of process:

the order in which those witnesses are to be called.

Under subsection 230(2), there are some teeth in that.  Then we come to a true opening address for the accused, which is section 231.  That is posited upon there being a state of affairs described as where the accused:

intends to give evidence, or to call other witnesses on behalf of the accused –

In that case:

the accused is entitled to give an opening address –

and it echoes language that you have seen earlier:

outlining the evidence the accused proposes to give –

I stress, entitled to give an opening address.  It would be odd if at that stage, where there is an intention to call evidence – including, perhaps, from the accused – that the outline of evidence is one which the accused is entitled to give.  It would be curious if, at a very much earlier, anterior stage of procedure, the accused had, in a document, been required, in effect, to outline the evidence on the basis of which an issue was taken with something relied upon by the Crown.

Then we come to the provision which is in question in this case.  We are now in the trial, Division 6, Part 5.7, section 233.  Subsection (1) is another of the provisions which is based upon the evident expectation or hope, or aspiration, for efficient trial process that was to be contributed to by compliance with section 182, which is at the heart of those matters which are described in subsection 233(1) as being:

in accordance with Part 5.5 –

Then you see the specific reference to the two kinds of documents to which I have made reference.  Then we come to the particular part of section 233 which is particularly in question in this case:

If, after the close of the prosecution case –

Again, a momentous point in a criminal process in our system:

the accused gives evidence –

So, this applies only after the accused has given some evidence:

which could not reasonably have been foreseen by the prosecution having regard to –

(a)the response . . .

(b)the response –

As I have already said in answer to Justice Gordon, we submit, for the reasons that we have written – particularly by reference to matters such as the requirement for an alibi notice – that it could not be supposed that to enliven that discretion, one is required to ignore what an alibi notice plainly notified the prosecution well in advance of the trial.

If we are right in that, then the error in this case, for the reasons I am about to come to, by the factual forensic course in these proceedings, is one consisting of the wrong regarding of the discretion as having been enlivened.  Alternatively, it is for the reasons I have already put:  the failure to pay regard to, among other things, the alibi notice in exercising a discretion if, contrary to our primary position, it had been enlivened at all.

GORDON J:   Is another way of putting that, it would be odd to consider the reasonable foreseeability of the evidence at both stages, by reference to different things?  In the sense that if it is limited to the two documents, and as I read the test it is:  could not reasonably have been foreseen by the prosecution, having regard to those two documents, but then when you came to the exercise of the discretion, one brings back in some other documents, and then ‑ ‑ ‑ 

MR WALKER:   Which are intrinsically relevant, so as not to take account of them would be error.

GORDON J:   I think we have that point.

MR WALKER:   Yes.

GORDON J:   The second question is, am I then undertaking the same assessment, i.e., the discretion, I have to consider again whether it is reasonably foreseeable by reference to the new information, in the exercise of the discretion?

MR WALKER:   In a sense, yes, that is, the force of that other material, that other consideration, would be to render most artificial an incapacity reasonably foreseen by reference to material which was not the universe of the material upon which a reasonable foreseeability would be based, so, yes.  So, if you did – if the discretion was, in a formal way, enlivened by the blinkers being on at that stage by reference only to those two documents, once enlivened, you would say, but why should I exercise it, because if it was not in those documents it was in the following dealings which made it crystal clear, et cetera.

Now, it is to be remembered that under section 225, which is not one of the things referred to in section 233(2), under section 225 there had been, by definition, at an earlier stage in that very trial – because it is before even the first evidence of the Crown – a presentation of a response to the prosecution opening which, as noted under subsection (2), subject to the trial judge’s ruling, need not be confined to the documents that had been exchanged – those are the documents, after all, that were referred to in 233(2).

In other words, the sequence that these provisions contemplate could have a response of the accused to a prosecution opening by leave of the trial judge, including something of significance – that is, material – which had not been found in the earlier response documents.  That, one would have thought, would be entirely in the spirit of these provisions.  How artificial and odd to regard the enlivening of a discretion under subsection (2) as proceeding at that first stage of judicial consideration by ignoring what had been, by the trial judge, permitted to be added to one of those formal written responses in the response of the accused to the prosecution opening to the jury.

In our submission – though the matter may strike different readers differently – by far the preferred approach would be that this discretion is not enlivened if, taking into account everything that must be taken into account, which is not limited to (a) and (b), those things which are intrinsically relevant also have to be taken into account, if the evidence could not be regarded as evidence which could not reasonably have been foreseen.

GORDON J:   Can I ask, in that context, something about 233(1)(b)?

MR WALKER:   Yes, your Honour.

GORDON J:   So, this is by the prosecutor – so, in terms of the running of the trial, it permits the prosecutor, with leave, to introduce:

evidence which was not disclosed in accordance with Part 5.5 –

MR WALKER:   Yes. 

GORDON J:   But it uses “a substantial departure”.  Does that pre‑suppose that there will be – I mean, it assumes, which right, that there will be departures?

MR WALKER:   Yes, yes.  If one contemplates what is fairly clearly intended by the language of section 182(2) – particularly paragraph (b), but I am not leaving paragraph (a) out – you have:

the acts, facts, matters and circumstances being relied on –

The way in which one expresses acts, facts, matters and circumstances obviously involves professional choice concerning the degree of specificity or generality with which things are expressed.  There is always – in other words, one would expect that something which is talking acts, facts, matters and circumstances is not the same as a comprehensive narration in full detail of everything – lo and behold, it would be the evidence – by which finding of guilt is sought.

So, plainly, there may be, in the running of a trial, something which might be regarded as in the nature of a “departure” but not “substantial” because the matter still falls sufficiently fairly within the acts, facts, matters and circumstances adumbrated earlier.  But if there is a departure by reference to some telling detail, et cetera, et cetera, the Court can, obviously, permit that without demur.

If there is something which is a “substantial departure”, it is still within the discretional power of the trial judge guided, unquestionably, by fair trial considerations, to give leave to do so.  So, those are not documents which can be said at the trial – or at any stage in the trial – to be tramlines that compulsorily and always restrict the course the case can take.

GLEESON J:   What is the purpose of specifying subsection (2)(a) and (b) if not to simplify the question for the trial judge in identifying the enlivening of the discretion?

MR WALKER:   The first answer to that is, all of that, of course, is in the context of subsection (3) as well.  So, when your Honour asked about purpose, this is a provision which does not replace what I think one would call the broader common law position, with which the Court is familiar.  That is only a lead‑up to my answer to Justice Gleeson.  It would be fair to see that as serving a purpose.  One aspect would be in paragraph (a) of section (1).

BEECH-JONES J:   Mr Walker, they might be the documents on the court file.

MR WALKER:   They would be – and served.

BEECH-JONES J:   And the trial judge would not necessarily have, unless one of the counsel puts it under their nose, all the emails that passed between the parties.

MR WALKER:   No, no, quite.

BEECH-JONES J:   That might be the starting point – on your argument, I would assume you would say, it is the starting point of what the trial judge has.

MR WALKER:   I adopt all of that and I add this, that what 233(2) does is to continue an emphasis on what might be called the innovation – it was not a complete fresh innovation, it was an evolution – but the innovation of these formal documents and, furthermore, formal documents which called for a response by an accused.  The formal documents calling for a response by the accused, we accept that the cliched distaste for trial by ambush informs an understanding of these provisions.

Those documents are not only on the record, but they have been produced by the rather detailed stipulations operating sequentially from the pre‑trial and then during the trial, including before any evidence is called, and that is why, in our submission, they provide a ready reference which has to be taken into account when considering whether evidence from the accused could or could not have been reasonably foreseen, that is, before it was given.

But it makes no sense whatever, bearing in mind the expectation in these provisions, that there may have been or there will be, in some cases, a departure from that position simply revealed by that document which indicates what the accused will do.  That might only be by subsequent documents, it may also have been by a notice of alibi which, if one looks at the provisions, could well, in most cases, be required to be more detailed than the response documents have to be.  It is for those reasons, in our submission, that one would not read the reference to paragraphs (a) and (b) in subsection (2) as blinkering the judge at the stage of whether the discretion is enlivened from the other steps that the statute itself contemplates will be means by which the accused will have, as it were, consistently with the rights of the accused to reserve his or her defence, foreshadowed without having to have served proofs of evidence. 

In our submission, the last point of interpretation I wanted to put was this.  The notion of that which is reasonably foreseen does not, in our submission, open up arguments which might be thought to be implicit in Justice Macaulay’s approach by which the limit on what an accused is obliged to do, both pre‑trial and at the commencement of the trial, merely presents a position where the accused is at risk of the prosecution splitting its case, calling, in so‑called reply, evidence that could have – and the accused would say should have – been done in‑chief simply because the accused had not either committed themselves to giving evidence, let alone to any particular effect, or to calling any particular or identified witnesses, let alone to any particular effect.

So, the reasonableness means in the context of the balance of interests of efficiency and the accusatorial principle that this statute attempts, and it is particularly informed by the evident and proper lack of full knowledge that one expects a prosecution will have of how a defendant, how an accused in evidence – this is in evidence – seeks to answer the case against him or her.

Or, to put it another way, with all the well‑known prejudice that a Crown case split can cause – accepted in this case as common ground – we do not have 233(2) saying, we have preserved in very large measure all the accusatorial principle features that protect an accused so as to allow the accused to asses his or her position only after the Crown case is closed, but, by the way, if you do not, in advance, disclose all this in sufficient detail so as to be compared with the evidence, the actual testimony you later give, then the Crown can split its case.

BEECH‑JONES J:   Mr Walker, if there was no alibi notices, as was the statutory provisions, as was the case in Killick, the usual position, as I understand it, was this:  the Crown might, without any knowledge of alibi, ask the accused counsel, are you running alibi?

MR WALKER:   Yes, quite.

BEECH‑JONES J:   Now, if the answer was, I am not going to tell you ‑ ‑ ‑ 

MR WALKER:   Then you ‑ ‑ ‑ 

BEECH‑JONES J:   And this is – and they are not obliged to.

MR WALKER:   That sets the bucket on top of the door, I agree.

BEECH‑JONES J:   Then, all of a sudden, the Crown hears alibi in the accused’s case, the Crown can call evidence in response.

MR WALKER:   Unquestionably.

BEECH‑JONES J:   And that is just an example of a forensic choice for the accused as to whether to tell, in advance, something that they do not have to tell.

MR WALKER:   Absolutely.

BEECH‑JONES J:   You do not seek to contradict that?

MR WALKER:   No, no.  That is the advantage of having disinterested professionals representing parties, yes.  Of course, in Killick, the actual ‑ ‑ ‑ 

BEECH‑JONES J:   They knew about it.

MR WALKER:   The actual facts were – forget formal notices, there had been sworn evidence.  If one can, by an analogy that is no doubt far too broad, imagine 233 being applied on the facts of Killick it would be, in our submission, really unthinkable to regard the discretion as being enlivened in such circumstances where there had been an oath given to an alibi, twice:  extradition and bail.  It would be, in our submission, overly formalist to say, no, no, no, 233 says only look at those documents – it does not actually say only look at those documents, the question is, does it say that?  But if you assume it was only look at those documents, then we will consider the fact that I had sworn previous provision of the alibi evidence, and that will simply mean I will not exercise the discretion.  That is excessively formal, in our submission.

That completes what I wanted to say about proposition 2.  Now, your Honours are familiar with the next matters to which I turn.  The substance that I will call 1,4‑BD is a substance that apparently has licit as well as illicit uses.  A licit use is as a cleaning agent, and our client had a cleaning business. 

Among other aspects of the Crown case was the placing of our client as an actor in offending by way of illicit use of this substance.  That is, for illegal human consumption.  By reason of his involvement in the hiring of the HiAce van, which was the vehicle by which a very large quantity of this material – licitly as a cleaning substance, illicitly as a human intoxicant – was moved in circumstances which were plainly put forward by the Crown as indicative of the illicit nature of the enterprise. 

There were two ways in which, in relation to the van, the Crown case against our client proceeded.  The first was that he was actually the one who hired it; late at night, et cetera.  The second was that he was among those present when the van was being used by being loaded and unloaded for what I will call a ferrying or redistribution process; all at night.  In the manner that we have drawn to attention, in our paragraphs 22 to 24 of our written submissions, there can be no doubt that there was a serious error made by everyone at trial concerning the knowledge of the Crown – the notification to the Crown with respect to hiring the van – that our client did hire the van.

That, of course, stands in stark contrast to the way in which the argument for the Crown, under section 233, proceeded.  I do not need to take your Honours to the transcript, we have extracted emblematic parts of that in our paragraph 21.  As extreme as, the first time the Crown heard that my client “now says he did hire this van”.  That is, the first time being his evidence at the trial. 

Whereas, as we have pointed out, including by formal exchanges, that simply could not be right.  I do repeat, the mistake was made by everyone; by the Crown, adopted understandably by the judge, and most unfortunately not corrected by us.  However, the documents are plain.  Could I take you in the appellant’s book of further materials, pick it up at page 115, which is part of the so‑called pre‑trial admissions document. 

I am bound to observe, though we think it plays no part whatever in either side’s argument, that it is really quite difficult to see how the form of this document complies with the statute.  But the differences, discrepancies or departures really will not matter because one can see here the Crown putting propositions as if they were, indeed, admissions being sought, and so they most certainly served the function of providing grounds upon which one might foresee certain evidence.

At page 115, can I draw to attention paragraphs 37 to 41, which painstakingly step‑by‑step place or state our client is the one who hired the van.  I note, in that connection, paragraph 42, which added, as a circumstance, a statement by our client to the hire car attendant of a purpose forgetting the van.  That is responded to, informally but very clearly, at page 118, where our then solicitors say they do have instructions about the admissions. 

All are admitted save for – and I draw to attention that the exceptions include 42 but, all the more clearly, of course, not those immediately preceding 42, which amount to the hiring.  That, in our submission, was plainly a rather large slip by the Crown, which has misled the judge and has been done without us having made the obvious available correction.  It was, in a sense, even worse because, as I say, this is the fifth trial.  In one of the previous trials, there had been a question for the trial judge about just this – not disputed that we rented the van.

And then, in a circumstance which is important for the whole of our argument, one puts it together with the notice of alibi, which you will find in the bundle immediately following the last document, pages 119 and following.  The particular proposition there is to be found on page 120, about a third of the way down:

all material times –

At his family home:

except for explained absences taking his parents to the airport, attending at a car rental establishment and returning home.

BEECH‑JONES J:   He does not say he went to Allouche’s house.

MR WALKER:   No, he absolutely does not say that.  That is an alibi, notified in November 2018, which was adhered to in May 2019.  Justice Beech‑Jones has, with respect, drawn to attention an aspect of the alibi, and therefore of the whole of the pre‑accused’s evidence dealings – pre‑trial and during the trial – with which I have to deal, because one does not find in any of the documents, formal or informal, a statement that the attending of a car rental establishment included doing something with the car – with the van – which involved its delivery to Allouche, which is the evidence he gave.

However, in our submission, what is plain is that the notification of attending at car rental and the denial of being present at the scene means that – and I should say, the car being rented, being the HiAce van.  The admission of hiring was not of just any vehicle but the particular one used, allegedly by persons including us.

If you put that together, we were not there for the offending conduct in relation to the van, but we did hire the van.  It must be – laws of physics – that someone else had the van for the offending, not us.  That does not require speculation or following breadcrumbs, that is a single step; inexorable inference.  Then we come to the reasons why, in our submission, it can be seen that it did not require any guesswork for Allouche to be the person to whom the van was delivered.  Your Honours have seen the ‑ ‑ ‑

GLEESON J:   There is a step there, which is about the idea of delivery to someone.

MR WALKER:   Yes.  So, the HiAce van which was the subject of the apprehension.  It was not spirited away; it was not lost.  It went from being hired by us to eventually being at the scene of the crime.  For that to be possible, somebody else must have taken it to the scene of the crime.

As your Honour correctly points out, what does that say about evidence nominating that – as Allouche at his place – as being enough for us to say the discretion is not enlivened, or it certainly should not have been exercised against us.  The way in which we put that is our proposition 6, to which I now come.  It was in the Crown’s case – the evidence of Mr Moustafa, whose credibility and reliability was hotly in issue – that he had contacted Mr Allouche at a suggestively relevant time:

to request that he organise a van –

So, we have that as evidence from the Crown.  Still in the Crown case but cross‑examination on our behalf, there is the suggestion to him, Moustafa, that Allouche could not, by reason of his age, hire the van.  In the Crown case – albeit in cross‑examination of the Crown witness – there is, raised on behalf of the accused, the possibility that someone else, not Allouche, would have to hire.  Then, the cross‑examination extended to the obviously evocative proposition put by counsel, you:

would not know whether –

and that obviously flags to any listener, forensically, that the proposition that this particular witness cannot say, one way or the other, is something that is seen by the questioner as having relevance to the issues.  The actual thing here is, you:

would not know whether –

Allouche had contacted Obian:

about hiring a van –

We then have not only the agreed fact that Allouche and our client are not strangers, they are know to each other, but it goes further than that in a part of the record that we have supplied to your Honours today.  Referred to in 6(d) of our outline, you will see transcript of the cross‑examination of the investigator in which you can see that Mr Allouche, with our client, had been an initial target; one of the two additional targets of the whole investigation.

Mr Allouche is not some “who, he?” character, he is someone who, from the beginning of the investigation, has been in the picture.  To adopt, in an opposite way, the idiom of the trial judge who reasoned that Mr Allouche was out of the picture, now he is only out of picture in the sense that Moustafa had given evidence that Allouche said he could not help.  But Moustafa’s evidence, as is accepted here and was accepted below, was hotly in contest as to its credibility and reliability, and reasonable foreseeability does not proceed by saying a witness’ credibility is in question – should be treated as a rolled‑gold guarantee that what he said in the particular answer is true – could not be contradicted.

GORDON J:   What do we do about the intercepted call which was the other way around, that Moustafa was asking Allouche for a van?

MR WALKER:   Sorry, that is what I am referring to.

GORDON J:   Is that not against you, that it was the other way around?

MR WALKER:   No, Moustafa is asking Allouche.  So, Allouche as a person to get the van was a plan – at an earlier time, at a time just before, was part of the plan.  That is not against me, that shows that Allouche is in the picture as a person to get the van.  The Crown says that that gets detracted from by Moustafa saying, but later Allouche said I cannot.  But the fact is that, on the Crown’s case, there had been an attempt through Moustafa to have Allouche get the van, we are talking about the same van, the van for the guilty conduct.

The fact that Allouche was thereby the one person apart from our client to be a candidate to have hired the van is said to have fallen out of the picture for the judgment of the reasonable foreseeability of our evidence that we hired the van only because Moustafa also says, Allouche said, I cannot.  That is why it was significant that he was cross‑examined to raising the proposition that in fact Allouche had contacted our client.  So, Allouche not able to hire but, if I may say so, obviously willing to do so ‑ ‑ ‑ 

BEECH‑JONES J:   Mr Walker, there was not a suggestion raised about Allouche contacting your client, it was only a suggestion that Allouche had a telephone conversation with Obian about hiring a van, and that could have been another conversation of the kind that Mr Moustafa was talking about, that is, your client contacting Allouche.  In other words, it is ambiguous as to – it is not putting to him, not even raising it as an express suggestion that Allouche then contacted your client to hire a van.  It is only raising a suggestion of a conversation about hiring a van, as I read that.

MR WALKER:   I think my answer is no.  What your Honour has said is true of part of the cross‑examination.  We have tried to extract it in our paragraphs 67 and 68.  Certainly ‑ ‑ ‑ 

BEECH‑JONES J:   That is what I am reading from, and if I have got it wrong, please ‑ ‑ ‑ 

MR WALKER:   May I attempt to persuade, your Honour has got it wrong.  In paragraph 68, the suggestion:

you wouldn’t know whether Mr Allouche had a telephone conversation with Mr Obian about hiring a van –

is what I am referring to.

BEECH‑JONES J:   Yes.

MR WALKER:   That is certainly talking about Allouche being in contact with our client to hire a van, which our client did, that is, he did hire the van.  That would explain that, plainly, as Allouche being the commissioner of the hiring.  In other words, evidence that the van was taken back to the man who had asked for it to be hired is absolutely foreseeable, given that, on our evidence, and plainly and appropriately foreshadowed, we were not at the scene of the crime with the van.  So, something got the van there and we delivered it to Allouche.

So, that is why I say, with respect, that, no, there is not the ambiguity, and in any event, the reasonable foreseeability in question does not get tested against some completely fantastical notion of the needing to supply full proofs of evidence.  This was very clearly, in the Crown case, putting Allouche right at the heart of the possibility of hiring.  He was asked to, he could not, and the suggestion through the question to Moustafa in cross‑examination was that that was a proper thing for counsel to raise – relevant.

For what it is worth, your Honours, I think, are aware from – excuse me – your Honours will see from page 9 of the core appeal book, at the end of the original witnesses list – signed by the prosecutor – you will see on page 9, the two operatives in question, 116 and 26.

GORDON J:   Did the hand‑up brief include evidence of their surveillance?

MR WALKER:   Yes.

GORDON J:   Of the kind that was, ultimately, adduced in evidence in relation to 116?

MR WALKER:   Yes.  Yes.  I am now talking about something that is not before the Court – but I invite my friend to correct me – what I have seen is this:  of 26, it can be said that most of the work was at Allouche’s location, residence, most of the surveillance was of that location.  Of 116, it was part of a fair bit more surveillance, and with 116, the Allouche location surveillance was for a slightly longer time.  It was 116 who was actually called.  So, of both of them, 116 and 26, it is the case that their surveillance evidence includes evidence of the Allouche premises.

BEECH-JONES J:   What do we get from that?  That is, it sounds like the Crown had it, they said – subjectively, you say that they were wrong – they thought it has nothing to do with this case; we do not need to bother the jury or ‑ ‑ ‑

MR WALKER:   That is, I think, the flavour intended to be conveyed by the argument against us.  In our submission, it is utterly unrealistic for these reasons:  it has nothing to do with this case.  The surveillance evidence, as I say, includes – and not merely incidentally, or by some kind of dross effect – it includes the surveillance of Mr Allouche’s location.  That is the first thing.

The second thing is they called evidence about Allouche being the person asked by Moustafa to arrange the van.  The next thing is they knew there was a connection, including going back to the initiation of the investigation between Allouche and our client.  The next thing is the alibi made it clear that we were not at, we say, the scene where the van was being used.  You add to that we did hire the van.  So, how did the van get from us hiring it to the scene, and you have the suggestion raising the possibility of Allouche having commissioned our client to hire the van, and obviously our client not then accompanying the van to the scene, the van having been delivered to Allouche for him or someone else to do so.

We say that is all obvious, largely backed up by, as I say, the laws of physics – you cannot be in more than one place at once, and the van had to move from hire to scene.  For all of those reasons, in our submission, it was never the case before the Crown case closed – before the Crown case closed it was never a case that Allouche had nothing to do with this.  It was obviously relevant to show that no van at the relevant time came to Allouche’s location.  That would be part of the case by which the Crown set out to prove that we were with the van when the van was being used.  They already had the fact that we hired the van.

GLEESON J:   Why was Allouche’s location relevant?

MR WALKER:   Because that is the place where, on our evidence, it was delivered from the hire.

BEECH-JONES J:   If the Crown – I know you say they should have reasonably foreseen it, but if your client had never given this evidence and this had not been issued, the Crown could surely have said, we do not need to call these surveillance operatives.

MR WALKER:   Your Honour is saying, if we had not given the evidence that triggered ‑ ‑ ‑

BEECH-JONES J:   Or, sorry, if it had not been raised.  In a world where there was no suggestion or foreseeable suggestion that your client had arranged the van to be delivered to Allouche, then does not all this suggest that the Crown, of course, as part of the investigation had surveillance of someone associated with it, came to the trial, subjectively did not anticipate that that was issue, and decided not to call them?

MR WALKER:   Your Honour, one has to identify what was not an issue.  Do not forget that the whole of this decision by the judge started on the basis that we had always, hitherto, disputed that we had hired the van.  So, we have to put that one side.  But they knew that we were going to say we hired the van.  They also knew we were going to say, we were not at the scene of the crime.  Those are the two things that then have to be dealt with.

GORDON J:   Can I just raise one issue about that.  You did not challenge Ms Wang’s evidence, did you, which said, I think, that the man who hired the van said he needed to move a box.  Does that not change it?

MR WALKER:   I am sorry, that was precisely the proposition that we said we would not admit.

GORDON J:   No, she gave that evidence and you did not cross‑examine in relation to it.  So that was paragraph 42 which was not ‑ ‑ ‑

MR WALKER:   I am so sorry, your Honour is talking about the actual ‑ ‑ ‑

GORDON J:   I am talking about the trial.  So, when the notice was given, you are right, there was no admission.  And then there was no cross‑examination of Ms Wang when she actually gave that evidence.

MR WALKER:   Your Honour is correct.  I apologise, I thought you were referring to the previous documents.

GORDON J:   No, I was referring to the trial.

MR WALKER:   But notwithstanding what was said apropos paragraph 42 of the notice, it was not carried through by challenge, no.

GORDON J:   Can I ask two other questions.  You said that the evidence given by surveillance operative 116 was not before the court, I think ‑ ‑ ‑ 

MR WALKER:   Before this Court, I think.

GORDON J:   In paragraph 298 on core appeal book 181, there is summary of that evidence.

MR WALKER:   Yes.

GORDON J:    Do you take issue with that summary? Core appeal book 181, and it starts at paragraph 296, but, most importantly, I think, at 298.

MR WALKER:   I am not aware of any point of difference, no.

GORDON J:   Thank you.

BEECH-JONES J:    Mr Walker, sorry, I think I may have been unclear.  I am just wondering what forensic significance you are seeking to ascertain from the inclusion of those surveillance operatives at that point in what looks like the expansive view of the Crown’s witness lists in circumstances where we do not have, and I do not think anyone raised, well, what were the steps in the reasoning of the Crown prosecutor at the trial by which they no doubt did not call these people?

MR WALKER:   Your Honour, I do not want to understate their significance, but it is simply this:  that that surveillance evidence, which included evidence of Allouche’s premises being surveilled at the relevant time, was, from the beginning, evidence that the Crown regarded as appropriate to be in its list of witnesses.  Now, the list of witnesses, we know, is nowhere ever intended – thank goodness, given its length – to be a locked‑in, irrevocable, recipe for the trial.

I accept all of that.  It is simply, however, not possible in face of that surveillance evidence having been part of the investigation that got to the stage of being notified through a witness list at the commencement of the exercise – it is not possible to say that it was utterly foreign to the Crown’s eventual endeavour to prove a case.  That is the first point.  And, of course, there is much more than that.  There is, as I say – I do not want to repeat the steps – those things which inexorably said, well, obviously Allouche is in the picture as a person to whom the man who says he hired the van but was not at the scene of the crime delivered the van.

GLEESON J:   No.  Why is that – I mean, there are two aspects to that.  One is the delivery to the person, and one is the delivery to the location.

MR WALKER:   Yes.  I accept those are two different things, yes.

GLEESON J:   The notice of alibi makes it clear that your client is saying nothing about the state of facts between hiring and returning home.

MR WALKER:   Except that returning home can involve a route – well, there could be more than one route home.

GLEESON J:   It does not necessitate driving the van home.

MR WALKER:   No, I entirely accept that, your Honour.  It being silent about that does not mean ‑ ‑ ‑ 

GLEESON J:   Or driving the van.

MR WALKER:   No – I said there was a journey, and, obviously, that means it is reasonably foreseeable that the means by which that journey was accomplished would be the subject of evidence.  Our point is that – it is the point I tried to make earlier – it cannot be that 233 is triggered because, in effect, you had not given a proof of evidence with all the detail.  I returned home is sufficient for the alibi, we submit.  Certainly, nobody has suggested that it was misleading.  When one comes to give evidence, the detail by which I returned home is not to be seen as evidence that could not be reasonably foreseen.

BEECH‑JONES J:   Mr Walker, on your client’s evidence, that alibi notice is misleading, is it not?

MR WALKER:   No, your Honour.

BEECH‑JONES J:   At all material times, it was in these places, none of which include Allouche’s home.

MR WALKER:   But returning home, by definition, is a number of different places – you are following a route.  I understand what your Honour is saying, and I think I have exhausted my response to it.  I should accept what Justice Gleeson has pointed out, that there is a difference between giving the van to someone and where you give it, but the significance of Allouche being signified as the commissioner of the hiring, that is my answer to Justice Gleeson on that.

GAGELER CJ:   Mr Walker, we will take the morning adjournment.

AT 11.18 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.32 AM:

MR WALKER:   Can I conclude what I want to say in relation to propositions 7, 10, and 11 by simply noting this.  One way of testing the position, so far as concerns either the enlivening of the discretion or its exercise under 233, is to ask the question of the admissibility of the surveillance evidence in‑chief, and, of course, resoundingly, it would have been admissible.  There was already sufficient raising of Allouche as a possible candidate for someone hiring the van by Mr Moustafa’s evidence, some of which could be right, and some of which could be wrong.  It is for those reasons, in our submission, that the link through testing what would have been possible, and proper, in the case in‑chief reinforces our proposition that the foreseeability was such as to deny the power that section 233 granted.

The next matter I want to turn to is, compendiously, to deal with our propositions 8 and 9 as follows.  A deal of what I want to say in relation to that has already been said in answers to some of your Honours’ questions, but in our submission – and for the reasons we have put in our written submissions on that aspect of the matter – it is quite artificial to separate out from the lively colloquy which stands as largely the reasons for the decision at first instance – consideration of whether or not our client admitted hiring the van.  It is, in our submission, intertwined and part of the whole of the position, which understandably struck his Honour at first instance as showing that this evidence that he had hired the van came as evolved from the blue.  That is why we say it is a retrospective view which artificially does not give full weight to the evident force which his Honour derived from the circumstance he understood, incorrectly, to be the case, namely, that there had been a reversal of the position concerning hiring the van.

Your Honours, in conclusion, if we are right concerning an error under section 233, then we think it is common ground that it was of a kind which would be apt to cause the kind of prejudice that would mandate a retrial.  And we have drawn to attention in our written submissions, ironically or otherwise, by our footnote 102, the trial judge’s surely correct observation during argument which gives substance to that; that there is a real prejudice of the highlighting in apparent reply or rebuttal of evidence that goes to the credibility of the accused having just given evidence, which is quite distinctly different – as the cases, including, of course, Killick, recognised – from the position had that evidence been given in‑chief.

BEECH‑JONES J:   Mr Walker, would you not say the comparison is between not having the evidence at all?

MR WALKER:   Yes.

BEECH‑JONES J:   So, something that was destructive of your client’s credit would not have been there.

MR WALKER:   That is exactly so, yes.  May it please the Court.

GAGELER CJ:   Thank you, Mr Walker.  Ms Ruddle.

MS RUDDLE:   Thank you, your Honours.  In our submission, the principal point that the Court needs to consider when looking at the ruling of the learned trial judge is the obvious split between the evidence regarding who hired the van, and what happened to the van thereafter.  The evidence that the van had been hired by Mr Obian was obviously part of the Crown case, and you heard my learned friend Mr Walker say that the Crown case regarding the van was put on two bases.  One, that he hired it, and two, that he was present with the van at the movement of the 1,4‑butanediol.

In our submission, the evidence of the surveillance officers could not have formed part of the preliminary case, because it did not shed any light on that first question – who hired the van – and it did not shed any light on the second question of Mr Obian’s presence at the movement of the 1,4‑butanediol.  That being the case, there can be no reasonable argument that the case has been split, and the surveillance officer’s evidence ought to have been left.

The evidence that the van was hired for and then delivered to Mr Allouche was a new battleground in the case, and it was not, in our respectful submission, foreseeable that that was the evidence the appellant would give.  I apologise for having to drag the Court through the transcript, but it is important to note what was actually put to Mr Moustafa on these very issues.  It starts at the appellant’s further materials on page 10, where the evidence in regards to the request of Mr Allouche by Mr Moustafa is said to be.  At line 15, the answer becomes – this is after the series of questions in relation to the call to Mr Allouche by Mr Moustafa:

And you say – you say he couldn’t help you?---That’s correct.  But there’s – how did he convey that to you?---He couldn’t help.

It continues on at 24 that the parties went to then visit Mr Allouche, and Mr Allouche indicated that he could not assist.

GLEESON J:   Just going back a step, Mr Moustafa says that Sam and Omar were together in the Corolla?

MS RUDDLE:   Yes, your Honour.  The first piece of evidence is – you will see at respondent’s further materials on pages 12 and 14, and then again at the appellant’s further materials at page 9, evidence that they were all together in the Corolla when the call was first made to Mr Allouche requesting the van.

GLEESON J:   And it was put to Mr Moustafa that the accused was not present?

MS RUDDLE:   It was, but only in very broad terms towards the end of the cross‑examination at page 17 of the further materials.  Your Honour will see about halfway down the page at 14, there is a sort of round‑up set of puttage:

I suggest to you that Mr Obian was not present at any of the establishments, Ashley Street or anywhere else you went to on the evening –

And then further on:

He did not assist, he was not present –

That is really the main puttage that was part of the cross‑examination of Mr Moustafa.  It was never directly put to Mr Moustafa, well, Mr Obian was not present when you made that call; Mr Obian did not come with you to Mr Moustafa’s house – it is all covered up just in that single discussion.

This is important because when you get to the part of the cross‑examination that your Honour Justice Beech‑Jones and my learned friend discussed – which your Honours will find at page 16 of the cross‑examination, it follows on from the evidence that Mr Obian and Mr Moustafa were in the car, they make the call, they go to Mr Allouche’s house, Mr Allouche says they cannot assist, and then, there is this series of questions in relation to a phone call between the parties.  So, starting at page 15, line 20:

So Mr Allouche didn’t have the facility by way of age to hire a van or a truck? . . . A van is different.

Did you ask him whether Mr Allouche had made inquiries . . . he said he can’t help –

So, then, it goes on to:

So you wouldn’t know whether Mr Allouche had a telephone conversation with Mr Obian about hiring a van, would you?

And the answer is:

It’s his – he was there with us.  Mr Saer was there with us.

Well, on your evidence . . . you are not able to say whether there was a later conversation, are you?

In our respectful submission, when one looks at that piece of evidence, it is not clear in any way, shape or form that what has been suggested is that, after the interaction with Mr Allouche, Mr Allouche has made a phone call to Mr Obian and said, Mr Obian, can you please rent me a van.  Because in the context – my learned friend says, Mr Allouche is all over this; it should have been obvious to the Crown.  But the Crown case and the evidence that was available to the Crown was that Mr Moustafa and Mr Obian were planning the movement.  They made a request to Mr Allouche and he was unable to assist.  There is no reason why the Crown would then presume – or guess at – there being some further involvement of Mr Allouche after he says he cannot locate, or obtain, a van.

It is not suggested, at any time, to Mr Moustafa that Mr Obian received a call from Mr Allouche saying, can you please rent me a van.  This question and answer at the top of page 16 is the high point of the puttage in relation to this point.  It was weakly put – and your Honours will see in the two pages that were provided yesterday – at page 70 of the transcript that did not make its way into the books.  All that is put in that question – so, at line 16:

Now, the man – by the way Mr Allouche did not have a licence, correct?

This is the cross‑examination of Mr Moustafa:

I can’t say if he did or didn’t.

Well, he was dropped off by his partner to you, was he not?‑‑‑Mr Allouche?

Mr Allouche?---When, what?

Mr Allouche, I suggest arrived in the van –

So, that would be something that could be potentially relevant to the question of foreseeability, except it then goes on to:

Mr Allouche did not, he wasn’t a part of us.  There was me, Sam.

Then, defence counsel says:

sorry, go on?

Mr Moustafa says:

You’re probably talking about Bchinnati.

Yes, all right, I’m sorry –

We do not see that further step of, no, no, I am suggesting to you Mr Allouche was in the van – Mr Allouche turned up at the factory in the van.  There is nothing to suggest – and we do not know, and my learned friend has not suggested a series of logic whereby Mr Allouche – where he is supposed to have disappeared to.

GORDON J:   It is a bit weird, is it not, because one of the reasons why Allouche could not help was he did not have a licence, so why would you be delivering a van to someone who did not have a licence?

MS RUDDLE:   Yes.  The evidence from Mr Obian was ultimately that Mr Allouche had a probationary licence ‑ ‑ ‑ 

GORDON J:   I see.

MS RUDDLE:   ‑ ‑ ‑ and could not rent a van, but the question was put by defence counsel to Mr Moustafa, I suggest Mr Allouche did not have a drivers licence, and the true state of affairs is not something that we are privy to.  But my point is there is nothing that would trigger the prosecution saying, okay, I accept that Mr Obian has rented the van but he must have given it to Mr Allouche.  Mr Allouche is not found at the scene.  It was not put to Mr Moustafa – other than in this question which he clearly sort of recants as a mistake – that Mr Allouche was present on the night.  It is not suggested to Mr Moustafa that Mr Allouche was assisting in the movement of the 1,4‑butanediol on the night.

So, my learned friend has taken you to proposition 6 of his oral submissions and it really reflects what was argued below and is summarised by Justice Macaulay at paragraph 338, which your Honours will find at court book 192.  In our submission, it just does not get to a foreseeable place, it is just not sufficiently clear that that is something the Crown was going to have to meet.  It really feeds back to that question regarding splitting the case because if the Crown had, prior to Mr Obian’s evidence, sought to lead the surveillance operative’s evidence, which amounts to we sat outside Mr Allouche’s house between three minutes past midnight and one minute past – 26 minutes past 1.00, we saw him go out for a kebab and we saw nobody else come or go to that location.

What could the prosecution have said to the jury about what they could do with that evidence, absent the evidence of Mr Obian that he had delivered the van, or first visited Mr Allouche and then delivered the van realistically within that time window?  It would have been irrelevant evidence.  My learned says friend that it is obvious that it should have been led, but the only link between Mr Allouche and this case is the evidence of Mr Moustafa that they went to visit him and the telephone intercept indicating that he was requested to find the van.

GLEESON J:   I know you say that the evidence was irrelevant, but what do you say about Mr Walker’s test that relevance and admissibility is a test for reasonable foreseeability?

MS RUDDLE:   Yes, your Honour, I accept that it will sometimes be the case that the prosecution needs to anticipate those obvious lines of defence that will come up.  If it had been the case that there was something, a shining light, that Mr Allouche was somehow said to be involved, or that there had been this delivery of the van, then, in my submission, yes, the relevance would have been triggered.  If there had not been any evidence of Mr Obian that he had gone to Mr Allouche’s house, collected the money, gone to Mini Koala Rentals, come back and handed the van to Mr Allouche – and if we just leave for one minute the clues that are said to be set out in proposition 6, we put those to one side – if that had not happened, it is hard to see how the Crown could have made anything of that evidence.

BEECH‑JONES J:   Ms Ruddle, can I ask you this.  That surveillance evidence that is adverted to at the end of the witness list, did that cover the period when Moustafa said he went to Mr Allouche’s house?

MS RUDDLE:   No, your Honour.  The only surveillance evidence that related to Mr Allouche’s house were the two witnesses that were called.

BEECH‑JONES J:   I see.

MS RUDDLE:   There were a number of other locations being surveilled, and there was some evidence to that effect.  In our submission, it just was not sufficient in the materials to trigger a reasonable foreseeability.  I accept, now sitting here in hindsight with all of the documents and five lawyers having pored over them for some time, you can scratch together a pathway.  But that is as high as it goes.  It is a scratched‑together pathway and it does not, in our submission, trigger the need for the prosecution to afford this evidence before hearing from Mr Obian.

The second point that was made – or really, the final point that was made against the Crown in relation to the application itself was that the trial judge was misled by the overstatements of the prosecutor.  This is one of those unfortunate events where there were multiple trials, multiple versions of the documents, so one can understand how at some point these things seem to have dropped off, because even the defence counsellor who was involved throughout failed to highlight that, no, I put it in that email and I said it to Judge Fox, and so on and so forth – my learned friends rightly acknowledged that.

Whether that is the case or not, we accept that it was on the materials reasonably foreseeable that Mr Obian would say that he had hired the van.  The issue is whether or not it was reasonably foreseeable that he would then go that second step – and it is only the second step that we say the evidence that was allowed in goes to – and say, I hired it for and on behalf of Mr Allouche.

GORDON J:   At paragraph 277 of Justice Macaulay’s judgment, the judge identified what the significance of this new evidence was.  Do you accept that that is a correct identification of it; that it was not simply that Mr Obian had hired the van, but he had hired for Allouche, delivered it to him and then returned home, claiming to have had nothing further to do with the use of the van thereafter?

MS RUDDLE:   Yes, your Honour.  When one reads the debate between the learned trial judge and the prosecutor and defence counsel on this application, it is clear that, whilst the initial application which is one for the calling of credibility evidence is put on this – this is the first time we have heard about the van, and I accept that that is an overstatement by the prosecutor as to the true state of affairs – very quickly, and really starting at page 48 of the appellant’s further materials, the trial judge leaps onto, well, this is really about Allouche.  If I might just take your Honours to that material ‑ ‑ ‑

BEECH‑JONES J:   And just to answer Justice Gordon’s question, do you accept 277 as an accurate statement?

MS RUDDLE:   Sorry, your Honour?

BEECH‑JONES J:   Just to answer Justice Gordon’s question, do you accept paragraph 277 as an accurate statement of ‑ ‑ ‑

MS RUDDLE:   Yes, your Honour.  Yes, that it was not simply that Obian hired the van – in fact, we press that as being highly important to both the trial judge’s initial findings and the viability of the Court of Appeal’s reasoning of both Justice Macaulay and Justice Niall.

GORDON J:   As captured by what then is set out in 227 by reference to the exchange between the trial judge and counsel for the accused.

MS RUDDLE:   Yes, your Honour.  And also, at paragraph 353 of the judgment of his Honour Justice Macaulay, which is at core appeal book 195.  So, it is quite clear that very quickly within the discussion, the issue of Mr Allouche’s involvement is highlighted by his Honour.  That starts at page 48 of the core appeal book at line 21.  So, it was not until the Allouche material comes in that you have the evidence that contradicts him, yes.  I do not propose to stand here and read you the entire transcript of the discussion, but when one reads it as a whole, rather than cherrypicking out small bits of it – which I admit I am doing right now ‑ ‑ ‑ 

GAGELER CJ:   Your outline refers to pages 40 to 109.  Are you sparing us that?

MS RUDDLE:   I promise I will not read all of that out, your Honour.  But, in my respectful submission, when you read the whole of the debate, it is quite clear that the judge’s focus was on the evidence of the van being given to Mr Allouche.  And the proof of the pudding is in the eating, because ultimately the evidence that is allowed in only goes to that second question.  That is, the delivery of the van to Allouche.

The two surveillance operatives can shed no light on the question of whether or not Mr Obian hired the van.  Surveillance of Mini Koala Rentals might have, and the evidence, obviously, of Ms Wang which had already been called as part of the Crown’s case in‑chief, obviously it did, but the surveillance operatives only goes to that second limb.  So, his Honour, again at page 50, lines 26 to 28 ‑ ‑ ‑ 

BEECH-JONES J:   You said earlier, 50 of the core appeal book.  Do you mean 50 of the appellant’s further materials?

MS RUDDLE:   Yes, I am sorry, your Honour.  I do mean page 50 of the appellant’s further materials.  So yes, it was 48 of the appellant’s further materials that I took the Court to a moment ago:

So, it’s a fact in issue whether he hired it the intent with which he hired it.

So, again, we are looking at that question of, what is he going to do with the van once he hires it?  And, again, at page 51 of the appellant’s further materials, lines 11 through 19, but primarily at 13 and 14, he:

hired the van on behalf of Mr Allouche and handed it over to him and nicked off.

That is a phrase that is then reflected at page 52:

That first time that comes out is in evidence‑in‑chief.

That is what his Honour says.  And so, when one reads the whole of it, in our submission, it is clear that his Honour was not distracted by the prosecutor’s initial misstatements as to the van.  The discussion relates very heavily to the involvement of Mr Allouche.  And, of course, there are statements within that where he says, he had not admitted the van – and we accept you cannot have the second one without the first, in that you cannot have Mr Allouche unless there is an admission of the rental of the van, but you could easily have the admission of the rental of the van without any suggestion that it went to Mr Allouche.

So, in our submission, it is quite clear that the trial judge is focusing on the right matters.  Again, at page 78 of the core appeal book, he puts to defence counsel, how could the Crown have had notice of that issue, being the issue of Mr Allouche’s involvement.

GORDON J:   What page was that?

MS RUDDLE:   Page 78, your Honour, at lines 18 to 20.  There is a debate for the pages that precede that in relation to – these are all the mentions of Mr Allouche, and the judge says, but where is the evidence that says – where is the bit that highlights to the Crown this is what you were going to say, or makes it – the phraseology would have been better – where is it that this would have alerted the Crown or made it reasonably foreseeable for them?  But the point of the issue, how was the Crown supposed to know that you were going to give this evidence about Mr Allouche.  And, importantly, the defence counsel, the man running the case at the time, cannot identify anything.

Now, my learned friends now identify their hit list of little bits and pieces from the transaction, but the person running the evidence on the day could not identify it to the learned trial judge and, in our submission, that really speaks to the speculative nature of the process that is now being undertaken for the purposes of appeal.

In our submission, you can consider the question of whether or not the trial judge has or could have been misled by the prosecutor’s initial overstatements by thinking about if the prosecutor had said right at the start, yes, of course we always knew he was going to say he was renting the van, he never said anything about Mr Allouche, we would be in the exact same position.  Unfortunately, that is not what happened but it is, in my submission, very open.  It was open to the judge and, in fact, inevitable that the judge would have allowed the evidence in even absent the prosecutor’s misstatements, because it is such a new piece of evidence rendering something that we say was inadmissible admissible.  So, those are the matters on the actual factual matrix of this case that I would like to address the Court on.

The final matter is, obviously, the interpretation of the relevant provision.  For the respondent’s purposes in this appeal, it is a distinction without a difference, and it is our submission that whether you apply the test posited by Justice Macaulay, whether you use the test posited by Justice Niall or whether you use the common law test of exceptional circumstances, this evidence would have been admitted.

Now, our learned friend took you through the provisions of the Criminal Procedure Act in some detail to support the proposition, as I understood it, that it did not intend to create a drastic change to the accusatorial system, and I accept that unreservedly.  The modernisation of these court processes to narrow the issues between the parties – and, in our submission, that is really what those initial sections, 182, 183, are designed to do – does not have the impact of requiring a defendant to posit a positive case.

However, as I think was discussed between your Honour Justice Beech‑Jones and my learned friend, there are forensic consequences to forensic choices, and that has always been the case.  In the case of Killick, it was not – and obviously, there was evidence, it is not on all fours factually, but in Killick, this Court found that whilst you do not have to disclose the defence case, there are consequences that flow from that, from essentially coming up with new evidence at the last minute.

Section 183 certainly allows a defendant to remain opaque in his defence or provide a more fulsome set of information.  It was suggested that there need to proofs of evidence, or something like that in order to give oneself protection from section 233.  We do not make that submission.  It would have been sufficient to trigger the Crown’s need to call the surveillance evidence for the defence response – or some other piece of evidence, but let us focus on the defence response at this stage – to say the van was hired and provided to Mr Allouche.  That would have been enough to trigger it.  You would not need, at 5.07 I drove down River Street and went to the 7‑Eleven, then I went to Mr Allouche’s house.

That level of detail may be – or certainly a level of detail higher than what was provided in this case is necessary, in our submission, to comply with the alibi notice, because Mr Allouche’s house is a place that Mr Obian is said to have gone during the period of time.  Nothing really turns on that because, in our submission, the issue was not taken below and the alibi notice does not give us any information that made the Allouche connection reasonably foreseeable.  It did, obviously, provide some information on that first limb – the hiring of the van – but it does not, and could not ‑ ‑ ‑

BEECH‑JONES J:   Does it not point the other way?  Does it not point the other way that it tends against it being reasonably foreseeable?

MS RUDDLE:   Yes, your Honour.  In my submission, the fact that the Allouche connection is not mentioned and no dropping‑off of the van is mentioned, all that is said is, he goes to the airport, attends at car rental establishment – again, a little deliberately opaque, one might think – but then fails to say, dropped the van off, went to Allouche’s house, attended those locations.  This is – I believe that Justice Macaulay refers to it as a Delphic trail of breadcrumbs, that yes, we have got that one piece of information about going to the car rental place but nothing that triggers the Crown’s knowledge or understanding that Allouche is going to re‑emerge as a player in this story.

GORDON J:   So, the way you put it is one looks at the alibi notices, except for identified activities, and the activity relied upon now is not there?

MS RUDDLE:   Yes, your Honour.  And so, the Crown, when looking at whether or not it was reasonably foreseeable that the appellant would give evidence that the van was hired on the behest of and then delivered to Mr Allouche, the alibi notice does not assist the appellant.  It can only trigger some expectation that there be evidence that Mr Obian attended the car rental place.  So, it was suggested that the judgment of his Honour Justice Macaulay amounted to a suggestion that it was improper or there was some impropriety in failing to provide a positive defence case, and in our submission, when one reads it, that is not the case.  It is really just an issue of forensic choices have forensic consequences.

There is nothing that bites away from the accused’s right to silence. But, just like the case at common law, if the accused chooses to exercise that right in a way that does not allow the Crown to understand what evidence is going to flow, then there will be forensic consequences, that is, the allowance of further evidence initially at common law and now under section 322 of the Criminal Procedure Act.  Obviously, the discussion – the difference between his Honour Justice Niall and his Honour Justice Macaulay is what to make of the phrase:

reasonably have been foreseen by the prosecution having regard to the response of the accused to the summary of prosecution opening and the response of the accused to the notice of pre‑trial admissions.

Because ultimately both learned justices get to the same point, that you need to consider all of the circumstances in the exercise of the discretion – and we do not quibble with that, and nor do we quibble with the submission of my learned friend that the point of section 322 – 233 – no, I have written that down, sorry, your Honour – is the balancing act of fairness to the accused ‑ ‑ ‑

BEECH‑JONES J:   I think it is 233.

MS RUDDLE:   There you go, I have it the wrong way.  I have written it down once – thank you, your Honour.  Yes, so, 233(2).  I will look at the Act in front of me.  The focus of that is ultimately the balancing act of fairness to the prosecution in dealing with a case they could not reasonably have foresee and fairness to an accused in the accusatorial process.

But, in our submission, his Honour Justice Macaulay was correct to come up with essentially the two‑step process whereby the information in the prosecution opening and response to the notice of admissions is the triggering occasion, and that is because, when one looks at both Part 5.5 and Part 5.7, the framework of a criminal trial is now designed to be outlined in those two documents, and that is reflected in the preceding subsection, subsection 233(1), whereby, if there is going to be a departure from either the prosecution opening or the defence response, then there needs to be leave of the judge.

So, it is important to give the process that the legislature has put in place of these documents that give everybody knowledge of how the cases are to be put, to give them some importance and some weight.  But I accept that that cannot be the beginning and the end of the inquiry because ‑ ‑ ‑ 

BEECH‑JONES J:   Ms Ruddle, just in terms of what triggers the discretion, do you actually say that triggering – enlivening the discretion is the words – is only (a) and (b)?

MS RUDDLE:   Yes, your Honour, because otherwise those words are really given no work to do.

BEECH‑JONES J:   All right.  So, can I give you this circumstance:  say the accused did raise an alibi in one of those responses, but prior to the trial their counsel told the prosecutor they were not going to rely on it, and then the accused does give evidence of the alibi.

MS RUDDLE:   Yes, your Honour.

BEECH‑JONES J:   On that scenario, subsection (2) would not be enlivened because it would have been foreseeable, having regard to the response, and you would be off in common law, it would seem.

MS RUDDLE:   The point, actually, that my learned friend made probably answers that, in that the alibi notice is not one of the two documents to which regard has to be had.

BEECH-JONES J:   All right.  What if the alibi ‑ ‑ ‑

MS RUDDLE:   And my learned friends say that goes against your proposition, because what if there is an alibi notice and it is deeply obvious?

BEECH-JONES J:   What if the alibi was in the response, though?  The accused included it in the response.

MS RUDDLE:   So, the submission – so your Honour’s question is that the Crown could not say it was‑ ‑ ‑

BEECH-JONES J:   Then it is said ‑ ‑ ‑

MS RUDDLE:   Yes, I understand.

BEECH-JONES J:   It might be an obscure example.  I appreciate it.

MS RUDDLE:   No, your Honour.  I had not turned my mind to that particular question, because in our submission, most of the issue is really answered ordinarily by that second step, because everything that is relevant then goes into that second step.

GORDON J:   My problem with that submission, though, is the example that Justice Beech-Jones has just given you, where it may very well be that you do not get through the trigger, and you then fall contrary to the very principles that you have just propounded about fairness to both the prosecution and the accused.  You have this situation which actually does not reflect reality.

MS RUDDLE:   Yes, your Honour.  I understand that.

JAGOT J:   This is not critical to your case, is it?

MS RUDDLE:   It is not important to our case at all, your Honour.  In our submission, regardless of whether you use the test posited by Justice Niall, the test posited by Justice Macaulay, or, as I have already indicated, the common law test, which your Honours will recall, the learned trial judge said, I am going to apply the test of exceptionality, it might be a bit harsh on the Crown, but so be it – in that there was a question mark around it.  This would have met the test posited by this Court in Shaw or in Killick.  This is new evidence that could not have been foreseen.

JAGOT J:   The trial judge went to the evidence in detail, not to the two documents.  The trial judge assumed that for the purpose of the section it was open to look at the actual course of the trial.

MS RUDDLE:   Yes, your Honour, and it certainly – both Justices Niall and Macaulay have considered all of the evidence like the trial judge did.  We say when you consider all of the evidence in this case, the obvious answer is the one that the learned trial judge and their Honours Justices Niall and Macaulay came to.  That does not answer your Honour Justice Gordon’s question in relation to ‑ ‑ ‑ 

GORDON J:   Well, it might mean that the approach adopted by Justice Niall is the preferrable approach in all the circumstances.

MS RUDDLE:   Yes, your Honour.  As I say, it is of little moment to the respondent’s case which of the two tests applies.  I am just attempting to provide as much assistance as I can in relation to the interpretation, purely because the structure of that section – section 233 – is premised on the importance of those documents.

GORDON J:   I do not think anyone is seeking to walk away from the fact that there were – innovation, whatever you call the steps that led to the requirement for those documents, and they were a big step, and they have significance – but it is a question about what you do with them in the context of 233 by reference to what has happened at trial, examples given by Justice Beech-Jones, the evidence, which was also what happened at trial, too, in terms of what has transpired.

MS RUDDLE:   Yes, and we accept that it is not only those matters that happened at trial, but for instance, the email ‑ ‑ ‑

GORDON J:   Correct.

MS RUDDLE:   ‑ ‑ ‑  that was sent to the Crown that, obviously, was not before his Honour the trial learned judge but was before the Court of Appeal in this matter.

GLEESON J:   So, why should those documents have particular significance after the close of the prosecution case?

MS RUDDLE:   It is really just, looking at the section, it is hard to imagine why it is structured in that way if they do not have some sort of pre‑eminence, because otherwise there would be no need for having regard to those documents.  What is the point of that reference if they are not given some sort of pre‑eminence?  Now, whether or not it ‑ ‑ ‑ 

GAGELER CJ:   Well, they are ‑ ‑ ‑ 

MS RUDDLE:    ‑ ‑ ‑ rises to the level of a trigger, as his Honour Justice Macaulay has said, or is just something that needs to be taken into account, given the important of those documents, is ultimately a matter for this Court.

Those are the matters for the respondent, unless I can answer any particular questions.

GAGELER CJ:   Thank you, Ms Ruddle.  Mr Walker.

MR WALKER:   Your Honours, the only aspect that I want to add, otherwise having already said everything relevant to our friend’s arguments, concerns the idea that it is only a matter of forensic consequences of forensic choice.  There was more to it in the approach taken by Justice Macaulay, culminating in his paragraph 345 in the core appeal book, page 194.

Without reading it, there is strong language there redolent of our client as a miscreant rather than simply our client as needing to live with forensic choices, and particularly the notion of not being able to complain of a position brought about by him being in breach of the requirements is one which, in our submission, suggests a wrong approach to the exercise of this discretion.

May it please the Court.

GAGELER CJ:   Thank you, Mr Walker.  The Court will consider its decision in this matter and will adjourn until 10.00 am on Tuesday, 9 April 2024.

AT 12.14 PM THE MATTER WAS ADJOURNED