R v TANNER - [2006] SASC 320

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v TANNER
[2006] SASC 320
Judgment of The Court of Criminal Appeal
(The Honourable Justice Duggan, The Honourable Justice Sulan and The Honourable Justice David)
18 October 2006
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES INVOLVING MISCARRIAGE - IMPROPER ADMISSION OR REJECTION OF EVIDENCE
Appeal against conviction - appellant was charged with aggravated serious criminal trespass in a non-residential building, theft and using a motor vehicle without consent, contrary to ss 169(2), 134 and 86A of the Criminal Law Consolidation Act 1935 (SA) respectively - appellant was charged with two other accused with whom he was said to have participated in a joint criminal enterprise - appellant was tried alone - appellant and co-accused were said to have stolen a truck which they used in the course of the theft - appellant's case was that he was asleep in the truck at the time of the offending as a consequence of drug and alcohol consumption and was not aware of the offending of the other two accused - no questions put to the appellant in cross-examination in relation to his state of sobriety or tiredness at the time of his arrest or during police questioning shortly after the offences occurred - prosecution sought to call evidence in rebuttal and trial Judge allowed prosecution to re-open case - held, although prosecution could not have anticipated issues which arose in appellant's testimony, the correct course for the prosecution to take would be to cross-examine the appellant, seeking an adjournment if necessary, and then applying to call further evidence if necessary - whether trial Judge erred in permitting the prosecution to call rebuttal evidence and, if so, whether miscarriage of justice arose - held, although trial Judge did not follow the proper course, this did not cause a miscarriage of justice in the circumstances of the case - whether Judge erred in refusing to order a mistrial - held, trial Judge was correct in refusing to order mistrial - whether Judge erred in failing to withdraw from the jury those issues on which the appellant had not been cross-examined - held, failure to cross-examine was not a reason to withdraw rebuttal evidence about appellant's sobriety from the jury - whether suggestion put by prosecutor to jury that was not part of prosecution case caused miscarriage of justice - held, matter was not important in summing up and defence case was fairly left to jury - whether trial Judge erred in directions to jury about failure of prosecution to cross-examine appellant - held, direction was based on flawed procedure, but no miscarriage of justice resulted - appeal dismissed.
Criminal Law Consolidation Act (1935) SA, referred to.
Wilde v The Queen (1987) 164 CLR 365, applied.
R v Chinn (1985) 157 CLR 671; Killick v The Queen (1981) 147 CLR 565; R v Soma (2003) 196 ALR 421; Shaw v The Queen (1952) 85 CLR 365, discussed.
Weiss v R (2005) 223 ALR 662, considered.

R v TANNER
[2006] SASC 320
Court of Criminal Appeal: Duggan, Sulan and David JJ

DUGGAN J. I agree that the appeal should be dismissed for the reasons given by Sulan J.
I restrict the following additional comments to the issues raised by the calling of evidence in rebuttal.
I agree that the version which the appellant gave in evidence of falling asleep as a result of the effect of drugs and alcohol could not have been reasonably anticipated by the prosecution. The evidence which the prosecution called in rebuttal was of some relevance to this issue and the leading of the evidence did not amount to a splitting of the prosecution case.
The next question is whether there was unfairness resulting from the prosecutor’s failure to confront the appellant during cross-examination with the effect of the proposed rebuttal evidence. The prosecutor should have put to the appellant the effect of the evidence which he proposed to call in rebuttal. However, the significance of this failure must be assessed against the background of the circumstances of the case.
The appellant gave evidence that he awoke not long before the vehicle in which he was a passenger was stopped by the police. He gave evidence of his condition at this stage. He said he was fully awake when the police apprehended him and that the police told him and the others in the truck that they did not smell of alcohol. He gave evidence from which it could be inferred that he was fully conscious and aware of what was occurring at the time of, and subsequent to, his apprehension.
The evidence led in rebuttal consisted mainly of the evidence of the arresting police officers concerning their observations of the appellant’s condition at the time of his apprehension and shortly thereafter. As the appellant was not suggesting that he was obviously affected by alcohol and drugs at the time of his arrest, there was little scope for any significant difference between the prosecution evidence and the appellant’s evidence as to his condition at the time of his arrest. In these circumstances the consequences of the failure to put the effect of the rebuttal evidence to the appellant in cross-examination were minimal and there was no risk of a miscarriage of justice.
SULAN J: The appellant appeals against his convictions of aggravated serious criminal trespass in a non-residential building, theft and using a motor vehicle without consent, contrary to ss 169(2), 134 and 86A of the Criminal Law Consolidation Act 1935 (“the CLCA”) respectively. The appeal raises the issue of a trial Judge’s discretion to permit the prosecution to lead evidence in rebuttal.
Background
The facts alleged by the prosecution were that on 20 April 2005, the appellant and two other men, Daniel McEvoy and Daniel Hammond, stole a Nissan truck, and that the truck was then used when the three men broke into a showroom of Bridgeland Motor Cycles at Murray Bridge and stole three motorcycles. Earlier that afternoon or evening, the truck had been taken from premises belonging to Adelaide Ice Service at Greenacres.
The theft at Murray Bridge occurred at about 10 p.m. that same evening. The plate glass window in the showroom of the premises was broken, and the motorbikes were taken. At the time of the break-in, the alarm was activated. A witness saw two people at the back of the truck, who appeared to be closing the back door. He heard yelling and he saw one person run to the driver’s side door of the truck. He was unable to see the other person prior to the truck being driven away. The witness telephoned the police. He and another witness were able to take the registration number of the truck and one of them observed three men in the front of the truck as it drove past and left the scene.
About forty-five minutes later, police stopped the truck at a roadblock and arrested the three men, one of whom was the appellant who, at that time, was seated in the passenger’s seat nearest the passenger door of the truck. Daniel McEvoy was the driver, and Daniel Hammond was seated in the middle between the driver and the appellant.
The prosecution case was that the three men were involved in a joint enterprise to break into the premises and steal the motorbikes. It was as part of the joint enterprise that they had also taken the vehicle from Adelaide Ice Service’s premises earlier.
The appellant was presented for trial on his own. At the trial, the prosecution tendered a number of witness statements, the effect of which established the break-in, the time at which it occurred and the circumstances of the apprehension by the police of the stolen truck and the accused.
Constable Pfeiffer gave evidence of apprehending the truck with the three men in the front, including the appellant. When the men had been arrested, he recovered the stolen motorcycles, which were in the rear of the truck. He accompanied the appellant and the other two men to the Mount Barker Police Station. A number of police officers gave evidence about the movement of the truck and the apprehension of the three occupants shortly after the break-in had occurred. Constable Francis gave evidence about the arrest of the appellant. He and Constable McLean conveyed the appellant to the Murray Bridge Police Station, where he was arrested and charged. Constable McLean was present when the appellant was charged and interviewed. No questions were put to Constable Francis in cross-examination. Constable McLean was questioned, but no suggestions were put to Constable McLean, nor were any questions asked of him about the condition of the appellant at the time he arrested him, or at the time he charged or interviewed him at the police station.
The appellant gave evidence that he had been drinking at a friend’s place throughout the day of the offence. He said that he had also smoked a large quantity of cannabis and heroin. He said that the effect of the alcohol and drugs was that he felt drowsy and wanted to fall asleep. He said that McEvoy had, according to his understanding, borrowed a van.
He said that at about 7 p.m. he, McEvoy and Hammond left in the van. He said shortly after they left he “blanked out”. He said that when they left the premises of his friend, McEvoy was driving the van and he was in the back seat sitting on a couch. Hammond was in the front seat. He said that he thought he was going home to Kilburn, but he then “blanked out”. He said he next remembered waking up at Murray Bridge and he was sitting in a little truck, between Hammond and McEvoy. He asked McEvoy where they were, and McEvoy said that they were at Murray Bridge and he should go back to sleep, which he did. He had no recollection of how he had got from the van into the truck.
The appellant said he was awakened by Hammond, who said, “Get up, get up, we’ve got the cops behind us”. He said to Hammond, “What’s going on?. The next thing that occurred was that they turned around a corner and there were about five or six police cars. He said they all jumped out and he was arrested. He said that McEvoy had stopped the truck when they were confronted by police in what he described as a “roadblock”. The appellant was arrested and charged with criminal trespass, theft and illegal use. He denied that he had entered the premises from which the motorcycles were removed, and he denied any involvement in taking the truck or the motorcycles. He denied knowledge of any plan or arrangement to take the truck or to steal the motorcycles. He said that he was not awake throughout the time when the truck was taken and when the break-in occurred at the motorbike shop. His evidence was that the reason he was asleep was due to drug and alcohol consumption and that he first became aware of what had occurred when he was charged.
In cross-examination, the appellant said that he did not recall being transferred from the van into the truck. He said that he was awake when the police stopped the truck and arrested the three men. He said that he was not aware of any plan by McEvoy and Hammond to steal a truck and go to Murray Bridge.
No questions were put to the appellant about his state of sobriety or tiredness when the police arrested him, or when he was questioned in the police car or at the police station. No suggestion was made to him that his state of awareness, when interviewed by the police, contradicted his suggestion that he was asleep throughout the offending due to his consumption of alcohol and drugs. No video recording of him being charged or interviewed were shown to him in cross-examination. The prosecutor did not seek an adjournment to enable the prosecution to obtain instructions in order that the appellant could be cross-examined about police observations of him at the time of his arrest and when he was charged.
At the conclusion of the accused’s evidence, some discussion took place about relevant matters upon which the Judge should direct the jury. Counsel for the appellant informed the court that he intended to make an issue about the prosecution’s failure to call McEvoy and Hammond. The discussion then moved to whether the Judge should comment to the jury about the failure of defence counsel to put to any prosecution witness that the accused was affected by drugs or alcohol.
Counsel for the appellant submitted that the defence case was not intoxication, but rather that the appellant was asleep during the relevant period when the offences were committed by McEvoy and Hammond. The defence case was that the appellant was awakened just prior to the police apprehending the truck. Mr Mancini, counsel for the appellant at trial, submitted that there was nothing to put to police witnesses, as they could not give evidence about the appellant’s state at the time the offences were committed. The following exchange took place with counsel:
HIS HONOUR: What about a Browne v Dunn observation about the failure of the defence to put to any prosecution witness the alleged intoxication?
MR MANCINI: There is, indeed, nothing in the observations about that that would indicate that any view was formed one way or the other. By the time he came to be awake, it wasn’t something that, in my submission, would indicate his intoxication at that stage. What we’re talking about, in essence, is his being asleep and the explanation for that, but he’s not asleep by the time the police come upon him; he’s fully awake and cooperative.
The following day, the prosecutor sought to recall the arresting officers and to tender video tape recordings of the appellant when he was charged and when he was interviewed to establish that observations of the appellant by the police demonstrated that the appellant was not affected by alcohol or drugs. Mr Mancini opposed the application. He submitted that the video evidence had not been put to the appellant in cross-examination, and that counsel for the prosecution had not applied to adjourn the cross-examination of the appellant for the purpose of obtaining instructions and cross-examining the appellant about the observations of the police witnesses. The prosecution had not put to the appellant that he had not consumed alcohol or drugs. Mr Mancini submitted that the prosecution should not be permitted to call evidence in rebuttal.
The prosecutor conceded that he had not put to the appellant that his evidence was a fabrication. The prosecutor agreed that he had not put to the appellant the matters that he now sought to lead from the witnesses in rebuttal.
The prosecutor submitted that it was only proper to cross-examine the appellant about his state of sobriety at the time of arrest, and to put the video-recording to him, once an evidential basis had been established to cross-examine the appellant about his state of sobriety when he was arrested. He submitted that the proper course was for him to lead the evidence in rebuttal, and then the appellant could be re-called for further cross-examination
The prosecutor submitted:
The course I propose, and I propose is the correct course, is for the rebuttal evidence to be led and for the accused to elect whether or not he challenges that evidence and wishes to give further evidence, and it is not, as I submit, the Crown’s election to have the accused cross-examined further on these points.
Mr Mancini submitted that the proper course would have been for the prosecutor to put the matters to the appellant in cross‑examination, and he had failed to do so. He submitted that the prosecutor having failed to do so, it was unfair to permit the prosecution to call evidence from witnesses that had not been put to the appellant. He submitted that the course proposed by the prosecutor was unfair. The prosecution had made a tactical decision to cross-examine the appellant to the extent it did and, in seeking to lead rebuttal evidence, the appellant had been deprived of the opportunity of giving an explanation about his appearance and apparent state of sobriety when arrested.
The approach of the prosecutor demonstrates a fundamental misunderstanding of the procedure to be followed. If an accused gives evidence and raises issues which counsel for the prosecution could not have anticipated, then the prosecution is required to put to the accused in cross-examination those matters which the prosecution seeks to challenge. It may be necessary, when the prosecution is caught by surprise, for counsel to seek an adjournment whilst these matters are investigated and instructions are obtained. If matters are to be contested, the prosecutor should cross-examine the accused about them. The accused must be given an opportunity to respond to evidence which may then be led in rebuttal.
For example, if for the first time, without any notice to the prosecution, an accused person were to suggest that he suffered from a medical condition which required him to take medication which had an effect upon him so that he would fall asleep more readily but, if awakened, not demonstrate any signs of having been asleep or being affected by the drug, then the course for the prosecution is to seek an adjournment and investigate the claims of the accused. If, upon investigation, it were ascertained that the doctor who prescribed the drug had done so some six months prior, but that no repeat prescription had been obtained and that the doctor had not seen the accused for some months, then that should be put to the accused in cross-examination in order to give him an opportunity to explain. If the accused challenged the accuracy of what was being put to him in cross-examination, then the doctor could be called in rebuttal. It may be that the accused does not challenge the doctor’s evidence, but could explain that he had obtained the prescription from another medical practitioner. Evidence in rebuttal may become unnecessary, depending upon the responses of the accused.
Counsel for the appellant opposed the application to lead evidence in rebuttal. The trial Judge ruled that the prosecution could re-open its case. In his ruling, he made the following observation:
In circumstances where, in the first place, the question of intoxication was introduced for the first time by the accused in the course of giving his evidence-in-chief and, secondly, where I am satisfied that the introduction of that issue could not have reasonably been anticipated by the prosecution and, thirdly, notwithstanding the accused’s primary position that he was asleep at the time, I, nonetheless, find it necessary to give a full intoxication direction to the jury.
I find myself satisfied that the Director should have leave to re-open its case to call evidence from the police officers as to their observations of the accused’s sobriety or general state at the time of his arrest and for a period afterwards, including the period encompassing the record of interview.
I am mindful that, in the course of its cross-examination, the prosecution did not squarely put to the accused that his claim of a drug/alcohol-induced sleep was fabricated, and that it has chosen not to seek his recall for the purpose of putting those matters. Even so, I am minded to grant the application.
Granting the application has two implications for you, Mr Quinn: you obviously want to call those witnesses, but if you want to show the record of interview, then you will need, I supposed, [sic] to elicit from the police officer concerned that, in the course of the record of interview, the accused exercised his right of silence, as he was entitled to do.

The witnesses, Constables McLean and Francis, were re-called. The effect of their evidence was that, at the time they arrested the appellant, he did not appear to be affected by drugs or alcohol. They gave evidence of their observations of him, and of his ability to comprehend questions and to answer them. The video tape recordings of the appellant when he was charged and the video tape recording of the appellant when he was interviewed were tendered over the objection of counsel for the appellant.
In the course of the prosecutor’s address to the jury, he said:
The accused did not raise the issue of intoxication at all during the Crown case. The police officers who arrested and handled the accused that evening were well-placed to talk about their observations of the accused in respect of his intoxication and the consequential fatigue which he has told us about and the failure of my friend to question those officers led to the re-call of two witnesses, Constable McLean and Senior Constable Francis.
He went on to say:
The real issue in this case was, and is, whether or not the accused was intoxicated and whether, because of that intoxication, he fell into such a deep sleep as to miss the whole thing. That is a question, ladies and gentlemen, was the accused intoxicated and did he fall into a deep sleep as a result? Of course, what stands against the accused being so intoxicated as to be incapable of anything other than sleeping is the evidence of the two officers that you have just heard.
The prosecutor then referred to the appellant’s evidence. He highlighted the appellant’s statement when asked at the time of charging whether he had recently suffered a loss of consciousness and his response that he had not. Counsel referred to the video evidence and the observations of the police officers. He submitted to the jury that the accused was not intoxicated at all during the Murray Bridge adventure. He went on to say:
From those facts you are entitled to infer that the accused was not at all intoxicated during the commission of these offences and if that is what you find, then the accused’s evidence as to blanking out from the combined effect of alcohol, cannabis and heroin, starts to look very weak. So weak in fact ladies and gentlemen that you are further entitled to dismiss it.
The summing up
The trial Judge in summing up referred to the accused’s evidence that he had consumed alcohol and drugs in the afternoon, which caused him to “blank out”. The trial Judge went on to direct the jury:
If you think it is a reasonable possibility that the accused did indeed sleep through everything that happened, that he did not participate in the acts constituting any of the counts and was not a part of any joint enterprise with the others to do those acts, then you will acquit him from the charges relating to them.
The trial Judge proceeded to give a direction about intoxication and voluntariness. Counsel for the appellant at trial had not requested that the Judge give an intoxication direction, because it was the case for the appellant that he had been asleep during the time that the offences were committed. The consumption of alcohol and drugs was incidental and provided an explanation as to why he might have been asleep. Voluntariness or the appellant’s state of mind was never an issue in the case. The issue in the case was whether the Crown had proved beyond reasonable doubt that the appellant was a participant in a joint enterprise. In order to do that, the Crown had to satisfy the jury beyond reasonable doubt that the appellant was not asleep throughout the course of the commission of the crimes. The prosecution had to prove that the appellant had been a party to a joint enterprise to commit each offence.
Counsel for the Crown in the appeal conceded that the intoxication direction that was given was not in accordance with Part 8 of the CLCA, as amended. However, no point has been made about it by either counsel on the appeal, as both counsel concede it was unnecessary to give the direction. I do not need to deal with that part of the trial Judge’s direction any further, other than to observe that the direction was not in accordance with Part 8 of the CLCA.
The appeal
Grounds 1 and 2 complain that the trial Judge was in error in permitting the prosecution to call rebuttal evidence, and that there was a miscarriage of justice by virtue of the unfairness occasioned by the prosecution not putting its case to the appellant.
It was not suggested by counsel in the appeal that this was a case in which it was reasonably foreseeable that the defence would be that the appellant was asleep throughout the commission of the offences. Nor was it the case for the appellant that it was reasonably foreseeable that part of the defence case rested upon the appellant’s consumption of alcohol and drugs. The appellant’s counsel did not suggest that this was a case in which the prosecution sought to split its case.
The gravamen of the complaint is that when it became apparent that the defence was that the appellant was not a participant in the offence, that is, he was not a party to a joint enterprise because he was asleep throughout, and that his explanation for being in such a deep sleep was that he had consumed large quantities of alcohol and drugs, then the course that the prosecution should have adopted was to cross-examine the appellant. Prosecuting counsel should have put to the appellant the observations of the police officers of the appellant at the time of his arrest. It should have been put to the appellant that his defence of being asleep throughout the commission of the offences was a false explanation. The video tape-recordings should have been shown to the appellant to seek an explanation from him about this apparent state when viewed on those video tape‑recordings.
Counsel submitted that the trial Judge misunderstood the defence case. He wrongly considered that the issue in the case was intoxication. It was contended that the trial Judge fell into error in taking the view that evidence of the appellant’s apparent state of sobriety at the time of his arrest was relevant to the suggestion that he had been asleep throughout, when the offences were committed.
Counsel submitted that the procedure adopted by the prosecution and permitted by the trial Judge was erroneous. Evidence in rebuttal should not have been permitted. Fairness dictated that, before evidence could be led in rebuttal, the appellant should have been cross-examined about the matters the subject of the rebuttal evidence. Counsel submitted that it may well have become unnecessary to call rebuttal evidence, because if there had been no issue about the police observations, there would have been no need to call evidence in rebuttal. For example, if the appellant had agreed that he was not exhibiting any signs of having consumed alcohol and drugs when arrested, then there would have been no basis for the prosecution to re-call the police officers.
As a consequence of the trial Judge’s decision to permit evidence to be led in rebuttal, the issue of intoxication loomed as a major issue in the case when, in fact, it was not the issue. The jury, therefore, had been overwhelmed by that evidence. The question of the appellant’s state of sobriety when arrested assumed too much importance in the case.
Counsel for the appellant submitted that undue emphasis was given to the evidence of the accused’s condition at the time that he was arrested, charged and interviewed. Counsel submitted that the substantial issue in the case was whether the prosecution had established beyond reasonable doubt that the accused was not asleep throughout the commission of the offences. The issue had become subsumed by the evidence about the accused’s appearance and state of sobriety when apprehended. It was highlighted by the prosecutor when he referred to the evidence in rebuttal in his address. It gained undue emphasis by the trial Judge permitting evidence in rebuttal. It gained emphasis in the summing up. Counsel for the prosecution, in his address, referred to the accused’s evidence that he had fallen asleep. He then commented that the issue of intoxication was not raised by counsel for the appellant with any of the police officers who arrested the appellant.
Counsel for the appellant complains that there was an undue emphasis placed upon the failure of defence counsel to put to the prosecution witnesses questions about the appellant’s appearance and response to questions after he had been arrested.
The issue in the case was whether the prosecution had proved that the appellant was party to a joint enterprise. That issue was subsumed by the issue of intoxication.
Finally, counsel submitted that the directions that were given in respect of intoxication were unnecessary, as there was no issue of involuntariness.
Evidence in rebuttal
The principles relating to rebuttal evidence have been discussed and developed by the High Court in R v Chinn;[1] Killick v The Queen;[2] Shaw v The Queen;[3] and R v Soma.[4] In Killick, the High Court considered the circumstances in which it is appropriate to permit evidence in rebuttal in order to negative alibi evidence. Gibbs CJ, Murphy and Aickin JJ in a joint judgment discussed the principles that govern the admission of evidence adduced by the Crown in rebuttal. The Court referred to the statement of Dixon, McTiernan, Webb and Kitto JJ in Shaw v The Queen[5] as an authoritative statement of the principles. In that case, the members of the Court said:
Clearly the principle is that the prosecution must present its case completely before the prisoner’s answer is made. There are issues the proof of which do not lie upon the prosecution and in such cases it may have a rebutting case, as when the defence is insanity. When the prisoner seeks to prove good character evidence may be allowed in reply. But the prosecution may not split its case on any issue. … It seems to us unsafe to adopt a rigid formula in view of the almost infinite variety of difficulties that may arise at a criminal trial. It is probably enough to say that the occasion must be very special or exceptional to warrant a departure from the principle that the prosecution must offer all its proofs during the progress of the Crown case and before the prisoner is called upon for his defence … Further … the English cases make it plain enough that generally speaking an occasion will not suffice for allowing an exceptional course if it ought reasonably to have been foreseen. Again, it may be pointed out that even an unexpected occasion may be of such a nature that it would have been covered, had the Crown case been fully and strictly proved.[6]
[1] (1985) 157 CLR 671.
[2] (1981) 147 CLR 565.
[3] (1952) 85 CLR 365.
[4] (2003) 196 ALR 421.
[5] (1952) 85 CLR 365.
[6] (1952) 85 CLR 365, 379-380.
The majority in Killick observed that evidence tendered by the prosecution after the defence has closed its case has the potential to assume inflated importance in the eyes of the jury, and may tilt the case in favour of the prosecution. That is one of the reasons why evidence in rebuttal should only be permitted when there are special or exceptional reasons for so doing.
In R v Chinn,[7] Gibbs CJ and Wilson J confirmed that the circumstances in which rebuttal evidence should be permitted to be called are very special or exceptional, and if the occasion for calling of further evidence ought reasonably to have been foreseen, then generally it should not be permitted.
[7] (1985) 157 CLR 671, 676-677.
In the end, the rules as to rebuttal evidence are based on fairness. In Chinn,[8] Dawson J said:
The relevant principle is essentially one of fairness. The accused is entitled to know the case which he has to meet so that he may have adequate opportunity to determine what questions he may wish to ask in cross-examination, what evidence, if any, he may wish to call and what objections, if any, he may wish to raise in the case against him. Ordinarily the depositions upon which he is committed for trial will provide him with this information in advance and if the prosecution intends to call additional evidence it is required to give notice of its intention to do so. The whole procedure would be undermined if the prosecution were permitted, save in exceptional circumstances, to call evidence in support of its case after the close of the case for the defence.[9]
[8] (1985) 157 CLR 671.
[9] (1985) 157 CLR 671, 685-6.
In R v Soma,[10] Gleeson CJ, Gummow, Kirby and Hayne JJ reaffirmed the general rule that the prosecution must offer all its proof before the accused is called on to make his or her defence. If the prosecution fails to do so, then it will not be permitted to lead that evidence by way of cross-examining an accused, or by way of rebuttal evidence. The High Court observed that if the prosecution failed to lead evidence of statements made by the accused during an interview with the police, then the prosecution should not be permitted to cross-examine the accused about those statements, because to do so would result in unfairness and would breach the principle that the prosecution should not be permitted to split its case.
[10] (2003) 196 ALR 421, 427 [29].
I consider that the procedure adopted by the trial Judge was flawed. The appellant gave evidence that he was asleep during the relevant time when the offences were committed. His reason for being asleep was his consumption of alcohol and drugs throughout the day. It is conceded by the appellant’s counsel that the evidence could not have been foreseen by the prosecutor. It was relevant that when he was arrested shortly after the offence of serious criminal trespass had been committed, the appellant did not appear to exhibit signs of intoxication. He should have been cross-examined and given the opportunity to respond to the prosecution contention that his state of sobriety, as observed by the police officers, and as seen on the video-tape, demonstrated that his evidence was untrue. That not having been done, the trial Judge should not have permitted the prosecution to call evidence after the defence had closed its case. If the proper procedure had been followed, the re-calling of prosecution witnesses may not have been necessary.
Has there been a miscarriage of justice?
The question then arises whether, in following the course that was followed, there has been a miscarriage of justice.
The evidence about the appellant’s condition at the time of his arrest within one hour of the motorbikes having been stolen was relevant evidence for the jury to consider, having regard to the appellant’s explanation that he was sleeping because of his consumption of alcohol and drugs. It was conceded by counsel for the appellant that the prosecution could not have foreseen that the appellant would claim that he was asleep throughout the events of that late afternoon and early evening. There was nothing put to the prosecution witnesses which would have alerted counsel for the prosecution that the appellant’s case was that he was asleep.
In the circumstances, the prosecutor was justified in seeking to raise the issue of the appellant’s condition at the time of arrest during the case for the defence. The prosecutor should have cross-examined the appellant. The video-tape recording of the appellant should have been put to him in cross-examination. Because the prosecution had not been put on notice, the prosecutor would not have split the prosecution case by challenging the appellant during cross-examination. The question is whether, by permitting evidence to be led from witnesses in rebuttal without the appellant having been cross-examined, there was too much emphasis placed upon the evidence in rebuttal. As a consequence, did the failure to follow the correct procedure lead to a miscarriage of justice?
Section 353 of the CLCA provides that:
If the court is of the opinion that a matter raised in the appeal might be decided in favour of the appellant it should nevertheless dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred. The appellate court is required to make its own independent assessment of the evidence and determine whether, making due allowance for the “natural limitations” that exist in the case of an appellate court proceedings wholly or substantially on the record, the accused was proved beyond reasonable doubt to be guilty of the offence on which the jury returned its verdict of guilty.[11]
[11] See Weiss v The Queen (2005) 223 ALR 662, 673-4.
In Wilde v The Queen,[12] in the course of their joint majority judgment, Brennan, Dawson and Toohey JJ said:
But the wording of the proviso is quite general and it is clear that it may be applied notwithstanding a misdirection concerning the law or the wrongful admission of evidence. In the end no mechanical approach can be adopted and each case must be determined on its own circumstances.
[12] (1987) 164 CLR 365.
Deane J said:
There is ample scope for the effective operation of such a proviso in cases where the particular court of criminal appeal is satisfied that the relevant misdirection, error or unfairness could not properly be seen as depriving the trial of the overall character of a fair trial according to law. It is in such cases that the strength of the prosecution case and the unimportance, in all the circumstances and insofar as the charges of which an accused was convicted are concerned, of the effect of the particular misdirection, impropriety or unfairness may justify the conclusion by a court of criminal appeal that, in the result, there has been no substantial miscarriage of justice.[13]
[13] (1987) 164 CLR 365, 377.
The jury were directed that, in order to find the accused guilty, they must be satisfied beyond reasonable doubt that he was a party to a joint enterprise and, if they thought it was a reasonable possibility that the accused was asleep throughout the events that occurred prior to his arrest, then he was entitled to an acquittal.
The suggestion that the appellant was asleep over a number of hours during which time the truck was stolen and he was moved from the van to the truck, and that he continued to sleep whilst the motorbikes were stolen from the shop during which time the burglar alarm was activated, was inherently implausible.
Not surprisingly, the jury must have rejected the appellant’s evidence that he was asleep and was unaware of what was going on over the period of hours prior to his arrest.
The case was a strong one. Although the procedure followed during the trial was flawed, I do not consider there was a miscarriage of justice.
Mistrial
The appellant complains that the trial Judge refused to order a mistrial. He further complains that the Judge erred in refusing to withdraw from the jury those topics upon which the appellant had not been cross-examined. Counsel for the appellant sought a mistrial by reason of the failure of the prosecution to put the case that was called in rebuttal to the appellant in cross-examination. This ground raises a similar issue to the matters raised in the grounds of appeal I have discussed earlier. Although the procedure followed at the trial was incorrect, for reasons I expressed when I dealt with the proviso, I do not consider that the refusal of the trial Judge to order a mistrial resulted in a miscarriage of justice. The complaint that the Judge should have withdrawn issues from the jury’s consideration is not sustainable. The jury were entitled to consider evidence about the appellant’s state of sobriety when arrested and charged. It would have been quite artificial for the jury to have been directed to ignore the evidence. The failure to cross-examine the appellant about his state of consciousness when arrested was not a reason to withdraw the evidence in rebuttal from the jury. The trial Judge was correct in refusing to order a mistrial.

The appellant complains that, in the course of his address to the jury, the prosecutor invited them to conclude that the appellant was one of the two men seen outside the truck by the witness who observed two men outside the truck. Counsel for the appellant submitted that that suggestion was never part of the prosecution case. The prosecutor did not open the case on that basis, nor did he put to the appellant in cross-examination that he was one of the two men outside the car. The complaint is that this resulted in unfairness to the appellant, resulting in a miscarriage of justice.
The appellant’s evidence was that he was asleep throughout the time. If the prosecutor was intending to suggest that the appellant was one of the two men outside the truck, he should have put that to the appellant. It ought to be said that, having regard to the appellant’s evidence that he was asleep, it was pointless to suggest to him that he was one of the two men seen at the back of the truck. However, if counsel for the Crown intended to put a suggestion to the jury that the appellant was outside the truck during the larceny of the motorcycles, in fairness, he should have put it to the appellant.
The suggestion of the prosecutor was not a matter that assumed any importance in the summing up. Nor can it be said to have led to an unfair trial. The defence case was fairly left to the jury by the trial Judge.
A further ground relied upon by the appellant is that the trial Judge erred in his directions to the jury about the failure of the prosecution to cross-examine the appellant.
The trial Judge directed the jury that the appellant’s counsel was not obliged to put matters to the police officers, including, in particular, the fact that the appellant was asleep when the offences were committed. The trial Judge said:
In any event the fact that he had not done so was precisely the reason the prosecutor was then permitted by the Court to re-call those two police officers to give evidence about those matters.
It is submitted that this direction was an error and prejudiced the appellant. This direction was based on a procedure which was flawed. However, for the reasons earlier expressed, I consider there has been no miscarriage of justice.
I would dismiss the appeal.
DAVID J. I would dismiss this appeal for the reasons given by Sulan J.