JMY -v- THE STATE OF WESTERN AUSTRALIA [2022] WASCA 60 (8 June 2022)

4 In addition to opposing the ground of appeal on its merits, the respondent invoked the proviso. It contended that, if the ground were established, there was no substantial miscarriage of justice because leave would, on any reasonable exercise of the common law discretion to permit evidence in rebuttal, inevitably have been granted, so that the same evidence would have been led absent any error concerning s 97 of the CPA.

5 For the reasons that follow, the ground of appeal is made out and we are not satisfied that the proviso can be applied. Consequently, we would uphold the appeal and order a retrial.

6 It is convenient to begin by outlining the legislative framework in which the issue on appeal falls to be determined.

7 Section 96 of the CPA provides that an accused who intends to give or adduce 'alibi evidence' must, within the prescribed time - namely 28 days before the trial commences - give written notice of their intention to do so, together with 'details of the nature of the evidence':

(3) Within the prescribed period before the trial date for a charge in an indictment, the accused must lodge and serve the following -

(a) if the accused intends to give or adduce any alibi evidence, written notice of -

(i) the accused's intention to do so; and

(ii) the details of the nature of the evidence; and

(iii) the name of each person who the accused intends to call to give any such evidence and the person's address or other information sufficient to enable the person to be located;

(b) any expert evidence material that relates to the charge;

(c) written notice of the factual elements of the offence that the accused may contend cannot be proved;

(d) written notice of any objection by the accused to -

(i) any document that the prosecutor intends to adduce at the trial; or

(ii) any evidence to be given by a witness whom the prosecutor intends to call at the trial,

and the grounds for the objection. (emphasis added)

any evidence that tends to show that the accused was not present when the offence is alleged to have been committed, or when an act or omission material to the offence is alleged to have occurred.

9 Section 97 provides as follows:

(1) In this section, unless the contrary intention appears -

disclosure requirement means a requirement imposed on a party by section 95 or 96 and any order made under section 138.

(2) If before or at a trial on indictment the court is satisfied that a party has not obeyed a disclosure requirement, the court, on the application of a party affected by the breach, may adjourn the trial for a period that allows enough time -

(a) if necessary, for the party in breach of the requirement to obey it; and

(b) for a party affected by the breach to investigate properly any evidence or other matter disclosed in accordance with the requirement and to obtain any evidence that may be necessary as a result of the disclosure,

or, if the trial is a trial by jury, may discontinue the trial, discharge the jury from giving its verdict and adjourn the prosecution.

(3) On any resumption of a trial adjourned under subsection (2) a party affected by the breach -

(a) may require a person who has given evidence in the trial, including the accused, to be recalled as a witness; and

(b) may cross‑examine or further cross‑examine the person about the evidence or other matter disclosed in accordance with the disclosure requirement; and

(c) may adduce evidence in rebuttal of the evidence or other matter disclosed in accordance with the disclosure requirement.

(4) The failure by a party to obey a disclosure requirement may be the subject of adverse comment to the jury by the judge, the accused or the prosecutor.

10 Given the confined nature of the issues on appeal, the State case can be summarised in broad terms. The five counts related to three incidents. The first incident, relating to counts 1 and 2, was alleged to have occurred between 10.30 pm on 27 November 2018 and 6.30 am on 28 November 2018, at 5 Blueridge Crest. There, the appellant was alleged to have stolen two debit cards and a blue Subaru.

11 The second incident, concerning counts 3 and 4, was alleged to have occurred shortly after 6.30 am on 29 November 2018 at 24 Fairbairn Road, where the appellant was alleged to have stolen, among other things, a telephone and a wallet.

12 Count 5 was alleged to have occurred on 29 November 2018 between 7.25 am and 9.40 am at 3 Albatross Court. At that location, the appellant was alleged to have stolen a number of objects, including a passport, jewellery, an iPad and a laptop.

13 The prosecution case was circumstantial. Among the items of circumstantial evidence relied on by the State were CCTV footage of the appellant attempting to use the stolen debit cards, and the fact that the appellant was found near a red suitcase which contained stolen items the subject of counts 3, 4 and 5.

14 At the trial, the appellant did not challenge the evidence presented by the prosecution. The appellant gave evidence, and his case was, that he was not present at the time each offence was alleged to have occurred.

15 In essence, broadly summarised, the appellant gave evidence that, at the relevant times, he was at the house occupied by a man named Sean, who was his supplier of methylamphetamine, and that explained his possession of the Subaru and stolen debit cards, and the presence of the red suitcase near him. We will detail his evidence later in these reasons.

16 The issues on appeal make it necessary to outline the course of proceedings at trial in some considerable detail.

The course of the trial The first day of the trial

17 The trial commenced on Monday, 9 November 2020. In the week prior to trial, the defence emailed the prosecution, providing notice of evidence which, at that stage, the defence did not concede constituted 'alibi evidence'.[2] In response, and prior to trial, the prosecution provided notice of 'what sorts of details might come out in cross-examination'.[3]

18 The emails were handed up at the hearing of the appeal. An email sent by the appellant's solicitors on 4 November 2020 disclosed that the appellant would be giving evidence at the trial that 'at around 9.00 pm on 27 November 2018, he left his home address ... and went to see his drug dealer, Sean, to consume drugs and play video games. He spent the night at Sean's house and remained there until he went to the Ezy[P]lus convenience store in Kardinya at around 6.30 am the next morning.' A further email on 6 November 2020 disclosed that the appellant would give evidence that 'after attending the EzyPlus on the morning of the 28/11/2018, [the appellant] returned to his drug dealer's house. He then stayed there until after 8:30am on 29 November 2018, when he drove the Subaru Forester to a house in South Lake.'

19 The (late) disclosure of the alibi evidence was raised by the trial judge at the very beginning of the first day of trial, before the jury was empanelled.[4] The prosecution submitted that the evidence sought to be led was alibi evidence, and, pursuant to s 96 of the CPA, it should have been disclosed.[5] At trial the prosecutor did not challenge the defence assertion, made in the correspondence, that the email constituted compliance (albeit late) with the obligation under s 96 of the CPA.[6]

20 Adopting the assumption invited by the judge, that the defence had belatedly complied with their disclosure obligations, the prosecution stated that they sought a brief adjournment to instruct the police to commence inquiries, following which the trial could proceed:[7]

FLYNN DCJ: Assume for the moment that there has been belated compliance with the obligation under section 96.

[PROSECUTOR]: Yes.

FLYNN DCJ: What would your position be then as of now?

[PROSECUTOR]: Well, then I will make a quick call to my investigating officer who's waiting nearby. There's a couple of lines of inquiry that spring to my mind. And he's waiting because he was copied in to my email to the court about this. So he's ready, car engine running, to run about and do our bidding. Based on what we know, I don't think that's going to delay proceedings.

The worst thing that could happen is that evidence does come out that requires investigating and some of that could even touch upon - I can think of two witnesses today whose evidence might need to be called again should the details of the alibi evidence reveal things that it may or may not reveal.

So there is that possible mischief to be contemplated. I don't have a crystal ball so I don't know what's going to happen, but at this stage, I'd be content to at least empanel a jury, maybe even have opening remarks, and it may well be by then that my investigating officer can tell me something.

21 The prosecution, in effect, proposed a brief adjournment to instruct the investigating police officer, who would conduct his various inquiries while the trial continued (that is, while a jury was empanelled and possibly while opening remarks were given). Following those inquiries, and subject to the evidence which came out at trial, the prosecution said that it may be necessary to recall witnesses.

22 The judge then summarised what his Honour perceived to be the three options: (1) adjourn the trial; (2) seek a comment under s 97(4) as a result of the non-compliance; (3) adjourn briefly to see whether or not the first or second options need to be pursued (in effect, the course the prosecution had described in the extract quoted at [20[8]] above).8

23 The following exchange between the judge and prosecutor then occurred:[9]

[PROSECUTOR]: Yes, and I'm not quite sure of the legislative foundation for the third course that I'm proposing.

FLYNN DCJ: No, no. I'm not questioning that. I'm just trying to understand your position.

[PROSECUTOR]: That's effectively it.

FLYNN DCJ: That's really what you're suggesting, that middle course.

[PROSECUTOR]: But the third course, your Honour, might be no more than empanelling a jury. I'll ring my investigating officer.

FLYNN DCJ: All right.

[PROSECUTOR]: What I'm asking for the court to do now is to adjourn just for long enough for me to do that.

24 Defence counsel began by saying that he did not disagree with anything the prosecutor had said.[10] He accepted that, due to the lateness of disclosure, there had been a breach of the disclosure obligation,[11] but submitted that the content of the disclosure now satisfied s 96.[12]

25 Defence counsel submitted that there was no intention to give any more evidence-in-chief than what had already been disclosed. He added that if the prosecution wished to cross-examine, 'it's up to my learned friend. If he wants to cross-examine, he can cross-examine on all sorts of things',[13] but that the inquiries referred to by the prosecution 'don't really come into play' as the defence didn't intend to call anyone other than the appellant to give evidence.[14]

26 Defence counsel pointed out, by way of background, that the appellant had been in custody since 19 December 2018 and his phone had been confiscated, so he had had no contact with anyone, including Sean, the drug dealer. Thus, counsel submitted, he had disclosed all that he, on behalf of the appellant, could. The judge observed that nobody was putting that in issue.[15]

27 Defence counsel said there was no objection to the third course, as proposed by the prosecutor and identified above.[16]

28 In reply, the prosecutor said that the prosecution reserved its right to seek an adverse comment as to the late disclosure. In response, the judge observed that that would be a matter to be dealt with by way of submission at the relevant time.[17]

30 After the adjournment, the prosecutor stated that the inquiries were ongoing and may not be complete until the afternoon, but that the trial should proceed, saying:[18]

The forensic advantage, potential forensic advantage [to the State] to be gained, depending on the outcome of those inquiries, isn't really prejudiced in any way by us proceeding now. (emphasis added)

31 Having returned from the brief adjournment to allow the prosecution to brief the police, the trial judge observed, and the prosecution accepted, that once the trial commenced the prosecution was 'stuck' with the trial proceeding.[19] The remedy to any evidence which emerged from the inquiries would be to adduce it in the trial, not to adjourn the trial.[20] The prosecutor sought to reserve the right to apply for an adjournment if 'another non-disclosure or breach of the disclosure obligation' occurred.[21]

32 There being no application to adjourn, the trial proceeded.[22]

33 The appellant's evidence‑in‑chief may be summarised as follows:

(a) The appellant used methylamphetamine.[23]

(b) On 27 November 2018 at around 9.00 pm, the appellant walked to Sean's house to purchase some 'meth'.[24] Sean was his supplier.[25] At that time, the appellant was living with his then partner at an address in Lavinia Crescent in Coolbellup. Sean's house was a five or ten‑minute walk from the appellant's place.[26] Nothing more was asked or said as to the location of the house.

(c) He stayed at Sean's house until the morning of 28 November 2018. On that morning, at around 6.15 am, another person, referred to as 'Muzza', came to Sean's house.[27]

(d) Muzza was driving the blue Subaru that had been shown in court on video. The appellant assumed the Subaru was stolen, as Muzza was wearing gloves.[28]

(e) The appellant drove the stolen Subaru to the EzyPlus deli, and attempted to use the debit cards Muzza had provided him. He assumed that they were also stolen.[29] The appellant admitted that he was depicted in the relevant CCTV footage at the EzyPlus deli.[30] He was wearing a black hooded jumper with a semi‑grey panel.[31]

(f) The appellant then drove back to Sean's house.[32] Before Muzza left Sean's house with the stolen Subaru, the appellant requested Muzza bring the Subaru back in order for the appellant to wipe his fingerprints from it.[33] The appellant remained at Sean's house until the morning of 29 November 2018.[34]

(g) When Muzza returned with the Subaru at approximately 8.30 am on 29 November 2018,[35] it had a red suitcase and a sledgehammer in it (which had not been previously present in the car).[36] At Muzza's request, the appellant drove Muzza to a house in South Lakes,[37] before driving the Subaru to Rinaldo Place and attending his friend's house at Unit 2, 2 Elinor Place.[38]

(h) Someone at that house (Ms Layla Phillips) requested the appellant drive her to a bottle shop. The appellant informed Ms Phillips that he believed that the car was stolen.[39]

(i) On 29 November 2018 at around 4.30 pm, when the appellant and Ms Phillips were driving in South Lakes, the police attempted to pull him over.[40] The appellant panicked, accelerated away and successfully evaded the police.[41]

(j) The appellant eventually returned to Elinor Place in the Subaru with Ms Phillips. The appellant put his jumper and the sledgehammer in the red suitcase.[42] While at Elinor Place, the police arrested Ms Phillips, but not, at that point, the appellant.[43]

34 Cross‑examination of the appellant began late on the second day of the trial.[44]

35 The appellant was cross‑examined as to the route he took in walking from the house in Coolbellup where he was living, to Sean's house.[45] In response to the prosecutor's request, he plotted his course on a plan, exhibit 17, with a cross at the location of Sean's place.[46] He also marked what he said was Sean's home with an X on what became exhibit 21.[47]

36 Later in cross‑examination, the next day, he was shown exhibits 16 and 21.[48] He was asked to highlight the location of Sean's home on exhibit 16. The appellant said that he could not do so because the location of Sean's home was not shown on that map.[49]

The prosecution applies for, and is granted, an adjournment

37 After some further cross‑examination, the prosecutor enquired of the judge whether it was a convenient time for the morning break, as he wished to speak to the investigating officer.[50] Shortly thereafter, the judge sent the jury out for the morning break. During the break, the prosecutor made the following submissions:[51]

Your Honour, as a result of what we learned in cross-examination yesterday about the supposed location of the home of Sean, which is effectively the location of the alibi, we made some inquiries yesterday which came to not a lot, but it's occurred to me now that there is more that could be done to investigate that.

And as a party affected by breach of the requirement to disclose alibi evidence, I now wish to make an application to adjourn the trial for enough time for us to make further inquiry into that address.

I would like to ask some further questions in cross-examination to see if we can narrow down the location and then police are going to make further inquiries into who has lived at various homes in the past few years.

It may well be that tomorrow morning we either wrap up cross-examination or I apply to recall Detective Feakes to give evidence about what has come from those investigations. (emphasis added)

38 The prosecutor said that he sought to adjourn the trial at that stage.[52]

39 The prosecution stated that, following further investigations, he would, or may, seek to recall the accused to cross‑examine him further as to 'the evidence or about the matter disclosed in accordance with the disclosure requirement'.[53]

40 Defence counsel accepted that the alibi disclosure was late, but submitted that he, on behalf of the appellant, had disclosed all that he could possibly have disclosed about the alibi, given that the appellant was not able to say the street name or number.[54]

41 With reference to the phrase 'details of the nature of the evidence' in s 96, the judge observed that the State was saying, in effect, that it now had more details that had been disclosed as a result of cross‑examination. The judge then said:[55]

Putting it at the highest from their point of view, [the State was saying that] 'If we had have had disclosure 28 days beforehand, we might have said to you we want details in the form of a cross on a map, and if we had that we would have had the time to do that.'

42 In response, defence counsel said that he would not push the point any further. However, he emphasised that the appellant was not obliged to give details of any person's name and address because the appellant did not intend to call any other person.[56]

43 The judge observed that he was inclined to grant the adjournment, in response to which defence counsel said, 'Well, yes, I won't oppose then'.[57]

44 The trial was adjourned for the day without any further evidence being adduced.

45 The trial resumed the next morning. At the outset, the prosecutor indicated that Detective Feakes had undertaken further investigations, outlining the results of those investigations. The prosecutor foreshadowed that Detective Feakes would be giving hearsay evidence, in substance that none of the persons he had spoken to knew of any person called Sean living there. The prosecutor indicated that if the defence did not consent to the evidence being given in that hearsay form, an adjournment would be sought.

46 The judge summarised the prosecutors' position, namely that the prosecutor would complete cross‑examination and then make an application to call rebuttal evidence.[58]

47 The judge indicated to defence counsel that he could hear from him as to the proposed rebuttal application then, or at the time it arose. Defence counsel indicated a preference for cross‑examination to be completed.[59]

48 The prosecutor then resumed cross‑examination of the appellant, beginning by reference to the mark on exhibit 21 placed by the appellant, showing where Sean was said to live.

49 The prosecutor then provided the appellant with a further, more focused map, showing substantially only the relevant street and the park adjoining it. That map ultimately became exhibit 22.

50 At the prosecutor's request, the appellant marked an X on exhibit 22 on the location where he said Sean lived.[60] When asked whether Sean's home had a fence or boundary joining onto the nearby park, the appellant said, 'No'. The appellant was then asked to circle the home said to have been occupied by Sean. The circle was evidently drawn around number 34 Archidamus Road, whereas the X was located closer to number 31.

51 The prosecutor put to the appellant that he had first marked with an X a location on the corner of the park and then circled the property, number 34, that was around the corner. In essence, the appellant accepted this was so.[61]

52 The prosecutor put to the appellant that he had changed his evidence and that the two locations were 'some distance away'. The appellant responded:[62]

I don't think it is some far away, sir. It just looks it on the map. You cut through the park and it's literally like that.

53 After the completion of the appellant's evidence, and the defence case having been closed, the prosecution made two applications. The first was an adjournment of approximately three hours said to be 'to allow us to properly investigate evidence that's emerged in this trial'. The second application, in the alternative to the first, was an application to recall Detective Feakes.[63]

54 The defence opposed the application for an adjournment on the basis that the alibi notice disclosed all the evidence required by s 96 and, had it been given in the appropriate time frame, the prosecution would be in the same position as was reached following the appellant's cross‑examination. Defence counsel submitted that the giving of arguably inconsistent evidence by the appellant under cross‑examination is not grounds for an adjournment.[64]

55 The judge observed that he did not need to hear further from the defence as to the adjournment application.[65]

56 The judge then inquired of defence counsel as to the application to call rebuttal evidence. Defence counsel responded in terms, 'I think that that's fair enough'.[66] The judge said that he did not need to hear further from counsel on that.

57 The judge then proceeded to give reasons for decision in the following terms:[67]

There's two applications before me. One is an application for an adjournment of the trial. That application will be refused. Essentially the effect of section 96 and 97 of the Criminal Procedure Act, there's an obligation upon an accused to, in relation to alibi evidence, disclose details of the nature of the evidence within the prescribed period before the trial date.

What's emerged is that certain details of the nature of the alibi evidence of Mr Thompson were disclosed but they were not disclosed before the prescribed period. They were disclosed in the days before the trial commenced. Sorry, some details were disclosed in the days before the trial commenced.

What emerged in the course of cross-examination yesterday was that the accused provided more precise details of the nature of the alibi evidence. Specifically, marked an X on a map indicating where he - his evidence was to the effect that he was at that vicinity or in that vicinity at that time - at that location or in that vicinity at that time.

On the application of the prosecution, there was an adjournment of the trial. Essentially I took the view that had there been a proper compliance with section 96, there may have been some negotiations about whether or not the accused could provide further details before the trial commenced and that would enable the prosecution to have perhaps carried out investigations and the State should have the opportunity to carry out those investigations with the benefit of the details that were then provided by the accused.

Those investigations were carried out and the State is in a position where it wishes to call a witness, Detective Feakes, to lead evidence by way of rebuttal. I'll come to that shortly. What's emerged today in cross‑examination is that the State say that Mr Thompson has provided different details of the nature of the alibi evidence and it now seeks an opportunity to investigate those details.

I form the view that that opportunity should not be afforded. In the end the State has enjoyed some advantage in being able to obtain details through cross-examination and I think that that advantage is limited to at least one opportunity to pursue investigations. Had there been further questions asked yesterday, it may have been that different information come out. But be that as it may, I think the State has had an opportunity to fairly address the alibi evidence as it existed in cross-examination yesterday.

If there is in fact an inconsistency between the details of the nature of the alibi evidence yesterday as compared to today, then that's obviously a matter that the State will make submissions on to the jury at the right time. So that application for an adjournment is refused.

There's also an application to call rebuttal evidence in relation to the details of the alibi evidence that emerged over the last day and today. Bearing in mind the late disclosure of the alibi evidence in the days leading to trial and what's emerged over the last day or two, I am satisfied that it's proper in the exercise of the discretion, which is foreshadowed by section 97(3) that provides for the adducing of evidence in rebuttal of a matter disclosed, for that evidence to be called. (emphasis added)

58 The prosecution then recalled Detective Feakes.[68] The evidence of Detective Feakes was as to the investigations he carried out. These included conversations with residents living nearby to the location the appellant indicated Sean resided at, as well as searching relevant police databases for any record that a person by the name 'Sean', 'Shaun' or 'Shawn' lived at an address near where the appellant had marked the maps. Those enquiries included speaking to an occupant of 34 Archidamus Road and an unsuccessful attempt to do so at number 31.[69]

59 The appellant's sole ground of appeal alleges that the trial judge erred in permitting the prosecution to adduce evidence in rebuttal from Detective Feakes, or alternatively, a miscarriage of justice was occasioned as a result of the admission into evidence of Detective Feakes' evidence in rebuttal.

(1) The judge purported to exercise a discretion under s 97(3) and did not purport to exercise the power to permit evidence in rebuttal on any other basis, including under the common law discretion.[70]

(2) The power under s 97(3) had not been enlivened in the present case because:[71]

(a) on a proper construction of s 96(3)(a), an accused intending to give alibi evidence was required to give only the details of the nature of the alibi evidence they intended to give in their evidence‑in‑chief, not details of evidence that may emerge in cross‑examination;

(b) although provided late, the notice given by the appellant's lawyer prior to trial complied with that obligation;

(c) an adjournment under s 97(2) is permitted for a period sufficient to permit investigation of the evidence or other matter disclosed in accordance with the requirements of s 96, not for a period to enable investigation of matters disclosed in cross‑examination;[72] and

(d) the prosecution's application for the adjournment on the third day of the trial, and its application to adduce evidence in rebuttal, had the purpose and object of rebutting the evidence given in cross‑examination, not the evidence or other matters disclosed in accordance with the requirements in s 96(3) by the notice given just before trial.

(3) While counsel for the appellant did not object to the calling of evidence in rebuttal, that was evidently because he, like the trial judge and the prosecutor, proceeded on a mistaken footing as to the scope and purpose of s 97. Further, there could be no legitimate forensic reason for a decision not to oppose the leading of evidence in rebuttal - that was a matter incapable of giving rise to any forensic advantage to the appellant.[73]

62 The respondent submits that the precondition to the exercise of the power in s 97 did arise, because there had been a failure to obey a disclosure requirement, in that the appellant's notice was given late. According to the respondent, the power was exercised following the adjournment and it did not matter that the application was not made or determined immediately upon the resumption of the trial. Detective Feakes' evidence was properly characterised as evidence in rebuttal of the alibi disclosed under the disclosure requirement, albeit that it was more specifically directed to the rebuttal of the more detailed alibi information given in the course of cross‑examination.[74]

63 Alternatively, the respondent pointed to the trial judge's discretion at common law.[75] The respondent properly accepted that the existence of this discretion was a matter relevant, if at all, only to the application of the proviso. In other words, given that the judge acted solely in purported exercise of power under s 97, if the conditions for the exercise of that power did not exist, a miscarriage of justice was thereby established.[76]

64 We will outline the respondent's submissions relating to the proviso after explaining why we would uphold the ground of appeal.

65 Relevantly, s 96(3) provides that an accused who intends to give or adduce alibi evidence must, within the prescribed time, lodge and serve written notice of:

(i) their intention to do so; and

(ii) 'the details of the nature of the evidence' that the accused intends to give or adduce.

The 'evidence' referred to in the phrase in quotes in (ii) is the alibi evidence intended by the accused to be given or adduced.

66 The appellant submits, and the respondent accepts, that the alibi evidence intended to be given by an accused encompasses, and is limited to, the evidence‑in‑chief proposed to be given by the accused.[77] We agree. It would involve an unnatural straining of the statutory language - the accused 'intends to give ... alibi evidence' - to construe that phrase as encompassing evidence that the accused did not intend to give in evidence‑in‑chief, but which the accused expected was likely to be adduced in cross‑examination. Moreover, to so construe s 96(3) would produce so many contestable applications of the provision as to be unworkable. By contrast, the construction we prefer produces the workable outcome that the sufficiency of an alibi notice is to be measured against the evidence‑in‑chief given by the accused.

67 Applying s 96(3) as so construed, it was not in dispute at trial[78] and is not in dispute on appeal,[79] that the notice given by the appellant in the lead‑up to trial, as outlined in [18] above, complied with the obligation in s 96(3), apart from being done later than the time prescribed.

68 Bearing in mind the breadth of the definition of alibi evidence - 'any evidence that tends to show ...' - there is room for the view that the disclosure requirement in s 96(3)(a)(ii) encompassed aspects of the appellant's intended evidence concerning 'Muzza'. However, on appeal, the respondent properly conceded that any such potential breach of the appellant's disclosure obligation was immaterial because it was immaterial to the prosecution's adjournment application, investigation and evidence in rebuttal.[80]

69 In the circumstances in [67] above, in our respectful view, s 97(2) provided no basis for the adjournment sought by the prosecutor and granted by the court on the third day of the trial.

70 Section 97(2) empowers the court, in circumstances where a party has not obeyed a disclosure requirement, to adjourn the trial for a period sufficient to achieve the objects identified in pars (a) and (b). Those objects are:

(a) If necessary, for the party in breach to obey the disclosure requirement.

(b) The investigation, by the party affected by the breach, of what is disclosed in accordance with the disclosure requirement and the obtaining of evidence that may be necessary as a result of the disclosure.

Thus, it may be seen that s 97(2) is framed exclusively by reference to the disclosure requirement and that which is disclosed in accordance with the disclosure requirement.

71 In our opinion, the stipulation in s 97(2) of the objects of the adjournment that the court is empowered to grant reveals and reflects the purpose of the power in s 97(2).

72 For the reasons that follow, the adjournment was not sought, nor was it granted, for a purpose within the scope of s 97(2).

73 As the respondent accepted,[81] the breach of the disclosure requirement - the lateness of the alibi notice - was not material to the purpose of the proposed investigations.

74 In the circumstances in [67] above, par (a) of s 97(2) had no work to do in the present case. Thus, the issue is whether the adjournment was sustained by s 97(2)(b).

75 The adjournment sought by the prosecutor and granted by the court on the third day of the trial was not for the purpose of permitting the State to investigate what had been disclosed in accordance with the disclosure requirement or to obtain evidence that may be necessary as a result of that disclosure. Rather, the purpose founding the prosecution application, and providing the basis for the adjournment granted by the judge, was to enable the prosecution to investigate what had been revealed in the course of cross‑examination. This conclusion, which was not seriously challenged on appeal by the respondent, is readily apparent on a review of the record, including from the following:

(1) On the first day of the trial, the prosecution did not seek an adjournment to investigate what had been disclosed in accordance with the disclosure requirement. In so proceeding, the prosecutor observed that the State was not prejudiced by proceeding at that time.[82]

(2) That approach reflects the practical reality that the appellant's alibi notice given before trial was in such general terms as to be incapable of any practical or substantial investigation.

(3) The prosecutor's application for an adjournment on the third day of the trial was expressed to arise 'as a result of what we learned in cross‑examination yesterday'.[83]

(4) In his reasons for decision on the fourth day of trial, in rejecting the prosecution's further adjournment application, the judge explained that the adjournment he had granted the previous day had been based on what had emerged in the course of cross‑examination.[84]

76 In those reasons for decision, the judge observed that, had there been proper compliance with s 96, 'there may have been' some negotiations about whether or not the appellant could provide further details before the trial commenced that would have enabled the prosecution 'to have perhaps carried out investigations'.[85] In our respectful opinion, that reasoning does not sustain the exercise of power under s 97(2). As the respondent accepts on appeal,[86] the appellant (i) was not obliged to disclose anything further and (ii) had adopted a firm position that he had disclosed as much as he could, and as much as he was required to disclose. That being so, the speculative possibility that, had the obligation in s 96 been performed earlier, the prosecution might have obtained further disclosure from the appellant did not provide a sound basis for the exercise of power under s 97.

77 In our view, because s 97(2) did not sustain the adjournment on the third day of the trial, s 97(3) was not engaged. The application of s 97(3) is conditioned upon the trial having been adjourned under subsection (2). When it applies, s 97 operates in accordance with its terms to confer a right to do the things stipulated - the right is not expressed to be conditioned by any exercise of discretion by the court. Moreover, the symmetry in the language of s 97(2)(b) and s 97(3)(c), and the evident logic of these provisions, should be noticed. If an adjournment under s 97(2)(b) is allowed so as to enable an affected party to investigate and obtain necessary evidence, it is understandable that, upon resumption, the affected party has the right conferred by s 97(3)(c) to adduce, as evidence in rebuttal, the fruits of the investigations enabled by the adjournment. However, where, as here, no occasion for an exercise of power under s 97(2) had arisen, s 97(3) is not engaged and so provides no basis for a party to adduce evidence in rebuttal.

78 For these reasons, in our opinion, s 97 did not sustain the leading of rebuttal evidence by the prosecution in the form of further evidence from Detective Feakes. In ruling that the prosecution could adduce evidence in rebuttal, the judge relied solely upon s 97. As the respondent accepts, in circumstances where s 97 did not sustain the leading of rebuttal evidence, there was thereby a miscarriage of justice.[87]

79 That conclusion is not affected by the fact that, in the end, following the judge's expression of his inclination in relation to the proposed rebuttal evidence, the appellant's counsel did not oppose the leading of the rebuttal evidence. There was a material irregularity in the trial in that the judge permitted the prosecution to lead evidence in rebuttal in circumstances where the right to lead rebuttal evidence under s 97(3) had not been engaged. There is no basis to suppose that counsel's failure to object was founded on anything but a sharing of the misconception upon which the prosecutor and judge evidently acted. No forensic advantage could have been obtained by a failure to object to the leading of evidence in rebuttal.

80 Consequently, the ground of appeal is made out, subject to the application of the proviso.

Does the proviso apply? Respondent's submissions

81 Although the respondent did not rely explicitly on the proviso in its written submissions, at the hearing of the appeal the court granted leave for the respondent to file written submissions in support of the contention that if the court were satisfied that there was an error of law or that a miscarriage of justice occurred, the appeal should be dismissed because no substantial miscarriage of justice occurred.

82 The respondent contends that the proviso should be applied because:

(1) the trial judge had a common law discretion to permit the State to adduce evidence in rebuttal of the appellant's alibi;

(2) in circumstances where it was impossible for the prosecution to adduce the evidence as part of its case, it would not have been a reasonable exercise of the trial judge's discretion to refuse a common law application to adduce rebuttal evidence; and

(3) if the trial judge had proceeded under the common law, the jury would have heard the same evidence as it did in the trial that was had. Thus, the judge's error did not affect the verdict.

84 The respondent points to the statement in Killick v The Queen,[88] that, generally speaking, if an alibi, the details of which have not been disclosed, is raised at the trial, the Crown should be allowed to give evidence to rebut it. It also points to R v Bartels,[89] in which, applying what had been said in Killick, the Court of Criminal Appeal of South Australia upheld the trial judge's decision to permit rebuttal evidence.

85 The respondent submits that, although when the trial commenced, the prosecutor was aware of the appellant's intention to rely on an alibi, the details of the proposed alibi were so vague as to be practically impossible to investigate. Thus, having obtained additional information during cross‑examination of the appellant that enabled the location of Sean's house to be identified with reasonable precision, the prosecutor was then able to obtain some limited evidence to the effect that no person named Sean was apparently connected to houses in the relevant area.[90]

86 The respondent submits that, in those circumstances, the reasons in Killick and Bartels demonstrate that, had the application to adduce rebuttal evidence been considered under common law principles, it would not have been a reasonable exercise of the trial judge's discretion to refuse the application.[91]

87 Further, the respondent points to the fact that the appellant's counsel did not oppose the prosecutor's application to adduce rebuttal evidence, submitting that there is nothing to indicate that counsel would have adopted a different approach had the matter been considered from the perspective of the common law.[92]

88 Consequently, the respondent submits, had the judge proceeded under the common law, the same evidence would have been heard by the jury, which demonstrates that the judge's error did not affect the verdict and so the proviso should be applied.[93]

89 The appellant's submissions in response emphasise that, in order for the respondent to successfully invoke the proviso, it must demonstrate that the only reasonable exercise of the common law discretion would have been to grant the prosecution leave to adduce rebuttal evidence.

90 The appellant accepts that the prosecution did not know the location of Sean's house with any reasonable precision. However, the appellant submits that a number of other factors were relevant to the exercise of discretion:[94]

(a) The rebuttal evidence would be adduced immediately after the appellant had given evidence, giving rise to prejudice because it was likely to assume inflated importance and tilt the scales in the prosecution's favour.

(b) The evidence of the location of Sean's house was not adduced in evidence‑in‑chief, but, rather, was elicited from the appellant in cross‑examination, reflecting a deliberate forensic decision by the prosecutor which carried with it the risk that rebuttal evidence may not be permitted.

(c) That evidence was adduced in circumstances where, at the commencement of the trial, the prosecutor had decided not to ask for an adjournment of the trial.

(d) The appellant's evidence, which was unchallenged at trial and on appeal, was to the effect that, before trial, he did not give a more precise location because he could not give one. However, once the map was put before him in cross‑examination, he was better able to see and describe where the house was.

(e) The appellant's counsel must be taken to have accurately represented the extent of his instructions in informing the judge that what was contained in the alibi notice was the extent of his instructions and that he, counsel, had disclosed all that he could disclose.

(f) The rebuttal evidence would take the form of hearsay statements and database searches that could not be properly investigated or tested by the appellant in the time allowed.

91 Having regard to those factors, the appellant submits, it could not be said to have been unreasonable or plainly unjust for the trial judge to have exercised his discretion to refuse to grant leave.

92 Further, the appellant submits that the decision in R v Bartels is of limited assistance because the trial judge had exercised his discretion to allow rebuttal evidence. He submits that the appellate court's conclusion that no error justifying interference with that exercise of discretion does not demonstrate that it would not have been reasonably open the trial judge to have exercise the discretion differently.[95]

93 The appellant submits that the central thrust of the prosecution's stance in relation to adducing rebuttal evidence is the fact that, until the appellant gave his evidence, it did not know the location of Sean's house. However, the appellant submits, the same is true of the appellant himself.[96]

94 Finally, the appellant submits that his counsel's decision not to oppose the prosecutor adducing rebuttal evidence at trial, evidently founded on the assumption that s 97 of the CPA had not been complied with, does not demonstrate anything as to the approach that would have been taken had the discretion under the common law been invoked by the prosecution.[97]

95 Although given leave to file submissions in reply, the respondent gave notice that it did not propose to do so.

Reopening and evidence in rebuttal: general principles

96 The common law principles as to the circumstances in which the prosecution may split its case or otherwise call evidence in rebuttal have been explained in a number of High Court decisions. See, for example, Shaw v The Queen;[98] Lawrence v The Queen;[99] Killick v The Queen; R v Chin[100] and R v Soma.[101] The effect of those decisions has, in turn, been summarised in a number of decisions in this court. See, for example, Manyam v The State of Western Australia;[102] Bevan v The State of Western Australia[103] and O'Meara v The State of Western Australia.[104] What follows is largely drawn from those summaries.

97 It is a fundamental feature of the accusatorial nature of a criminal trial under our system of criminal justice that it is for the prosecution to prove each element of the offence, and to do so without the defence being required to disclose its answer(s) to the charge.[105] In doing so, the prosecution must present the whole of its case foreseeing, so far as it reasonably can, any issue which the accused might raise, as the prosecution will not, generally speaking, be permitted to adduce further evidence in rebuttal on any issue on which it bears the onus of proof.[106]

98 The general rule is that the prosecution should not be permitted to split its case or adduce rebuttal evidence, except in very special or exceptional circumstances. In general, the prosecution must present the whole of its case before the accused is called upon to present his or her case by giving sworn evidence in his or her own defence or calling other witnesses. The judge has the discretion to permit the prosecution to reopen its case and to adduce rebuttal evidence, but, in general, it should not be exercised if the necessity for adducing the rebuttal evidence as part of the State case could reasonably have been foreseen.

99 In Killick, Gibbs CJ, Murphy and Aickin JJ referred to the general rule and described it as not merely a technical rule, but an important rule of fairness.[107] Their Honours continued:

Evidence tendered by the Crown after the defence has closed its case may assume an inflated importance in the eyes of the jury. The very fact that the last piece of evidence which the jury hears is given in contradiction of evidence already given by or on behalf of the accused tends to tilt the scales in favour of the prosecution (569).

100 Gibbs CJ, Murphy and Aickin JJ also observed in Killick that, if details of an alibi have not been disclosed before trial it will, in general, be right to say that the occasion for the calling of evidence to rebut the alibi could not have been foreseen and, in such circumstances, ordinarily, the prosecution should be allowed to give evidence to rebut it.[108] However, when the details of the alibi were disclosed before the trial, it cannot be said that the occasion for the giving of evidence to rebut it is unforeseeable. The majority considered that Killick was a case of the latter kind.

101 The general rule and the closely circumscribed circumstances in which the trial judge may permit departure from it are based on two fundamental propositions. First, the burden is upon the prosecution to prove the accused's guilt beyond reasonable doubt. Secondly, the accused is entitled to a fair trial including the protection of his or her right to silence and the presumption of innocence.

102 It is important to recognise, as both parties emphasise, that the question is not how we would have exercised the common law discretion in the circumstances of this case. Nor is the question whether it would have been open to the trial judge to have granted leave to adduce evidence in reply. Rather, the question is whether, in the context of error and a miscarriage of justice having been demonstrated and the respondent having invoked the proviso, we can be satisfied that the only reasonable exercise of discretion would have been to grant leave to adduce evidence in rebuttal. In other words, can this court be satisfied that on any reasonable exercise of the common law discretion, the grant of leave to adduce evidence in reply was inevitable?

103 For the following reasons, which substantially mirror the reasons advanced in the appellant's submissions, we are not so satisfied.

104 The observations of Gibbs CJ, Murphy and Aickin JJ in Killick are expressed in general terms - 'speaking generally'.[109] Those observations inform, but do not dictate, the result of the exercise of discretion in the particular circumstances of a case.

105 The appellant's unchallenged evidence was that he gave his lawyer as much information about his proposed alibi as he was able to give. His evidence is that he did not give his lawyer any information as to the precise location of Sean's house because he was unable to do so until, in cross‑examination, he was asked - implicitly for the first time - to explain the location by reference to a map. While in some cases such evidence might readily be viewed with a degree of scepticism, this evidence was unchallenged both at trial and on appeal.

106 The appellant's counsel gave notice of the alibi to the full extent that his instructions enabled him to do so. There is no (and could not reasonably be any) suggestion that counsel deliberately refrained from inquiry directed to obtaining more details.

107 The trial evidently proceeded on the basis of assumptions as to the effect and operation of s 96 and s 97 of the CPA that are, for the reasons explained in upholding the ground, erroneous. While, at the time of trial, in cross‑examining in the manner he did, the prosecutor may have expected that he would have been entitled to adduce rebuttal evidence under s 97(3) of the CPA, the question relating to the rebuttal evidence must now be considered in the hypothetical framework of an error free trial and thus under the common law. The technique adopted by the prosecutor in cross‑examination involved an element of forensic choice that carried the prospect of eliciting further detail in circumstances where, in the hypothetical framework to which we have referred, it could not have been assumed that leave to adduce evidence in rebuttal would be obtained. While there may be room for the view that, practically speaking, the prosecutor would have had little choice but to seek to obtain further details of the alibi, we are not satisfied that that is the only available view.

108 The effect of a grant of leave at common law would be to permit the leading of hearsay evidence in a form and in circumstances that left little room for the appellant to challenge it in cross‑examination. The evidence would be the last evidence heard by the jury, giving rise to the well‑recognised risks that it would assume inflated importance and tilt the scales in the prosecution's favour.

109 We accept the appellant's submission that the appellant's counsel's decision not to oppose the prosecutor adducing rebuttal evidence at trial, evidently founded on the assumption that s 97 authorised the adjournment on the third day of the trial, does not demonstrate anything as to the approach that would have been taken had the discretion under the common law been invoked by the prosecution. At the trial, the trial judge did not, having regard to our explanation of the proper construction and application of s 97(3), exercise a discretion in relation to the adducing by the prosecutor of rebuttal evidence. Where s 97(3) is engaged, the party affected by the breach of the disclosure requirement has a right to adduce evidence in rebuttal. By contrast, at common law, the prosecution may not split its case or otherwise call evidence in rebuttal without the leave of the trial judge, who has a discretion to grant or refuse leave.

110 In all the circumstances, we are unable to be satisfied that it would not have been reasonably open to the judge, in the exercise of his discretion, to have refused an application at common law. We emphasise that, in so concluding, we do not suggest that that is how we would have exercised our discretion in the circumstances.

111 Thus, we do not accept the second step of the respondent's case, as outlined at [82] above.

112 Further and in any event, we do not accept the third step of the respondent's argument on the proviso.

113 It is an essential element of the respondent's case for the application of the proviso that, had the judge proceeded under the common law, the jury would have heard the same evidence as it ultimately heard.[110] In our view, that conclusion has not been established to the high standard of satisfaction necessary for application of the proviso.

114 In short, we are not satisfied that in a hypothetical trial - free of any misapplication of s 97 of the CPA - the prosecution would, at the time when an application for leave to adduce evidence in rebuttal would have been made, have had available to it all of the evidence that it in fact led at the trial.

115 As already noted, on the morning of the third day of the trial, after an hour or so of cross-examination, the prosecution successfully sought an adjournment, purportedly under s 97(2) of the CPA. In support of the application for an adjournment, the prosecutor referred to enquiries that had been made the previous day, observing that they 'came to not a lot'.[111] The court adjourned at about noon. When the trial resumed the next morning, the prosecutor indicated the results of the further investigations that had been undertaken by Detective Feakes the preceding day and evening following the adjournment, and foreshadowed the adducing of rebuttal evidence.

116 Thus, the evidence adduced in rebuttal was the fruits of the investigations conducted between noon on the third day of the trial and the following morning when the trial resumed.

117 As explained in [75] and [76] above, s 97(2) did not sustain the grant of the adjournment on the morning of the third day. Thus, in the hypothetical error free environment, no adjournment would have been granted. There is no reason to suppose that further cross-examination would have lasted very long, so the appellant's evidence would have concluded that morning. Any application at common law for leave to adduce evidence in reply would then have needed to be made, unless the prosecutor had sought an adjournment. In the circumstances, absent an adjournment, the prosecution would not have had available to it the evidence that was in fact adduced on the fourth day of the trial. At the least, it cannot confidently be said that the same evidence would have been available to the prosecution.

118 The respondent has not addressed the question of whether, in the hypothetical environment to which we have referred, an application for an adjournment invoking the court's general discretion under s 89 of the CPA would, on any reasonable exercise of the discretion, have succeeded to the extent necessary to enable the prosecution to have obtained all the further evidence it ultimately adduced. No doubt many of the considerations relevant to the discretion to permit evidence in rebuttal would similarly bear on the discretion to permit an adjournment,[112] but we do not think it can confidently be assumed or concluded that the considerations are precisely identical. In all the circumstances, we are not persuaded to the high standard of satisfaction necessary for application of the proviso that in the hypothetical environment to which we have referred, an application for an adjournment invoking the court's general discretion would, on any reasonable exercise of the discretion, have succeeded to the extent necessary to enable the prosecution to have obtained all the further evidence it ultimately adduced.

119 In those circumstances, it cannot be said that absent any error or irregularity the jury would have heard the same evidence. Consequently, the proviso cannot be applied.

120 For these reasons, we are not satisfied that the appeal should be dismissed by the application of the proviso.

121 For the above reasons, we would make the following orders:

1. The application for an extension of time within which to appeal is granted.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] CPA, s 62(1), s 96(1).

[45] ts 195 - 196. The address was specified, but need not be mentioned in these reasons.

[71] Appellant's submissions [30] - [37].

[73] Appellant's submissions [38] - [39].

[75] Respondent's submissions [24] - [25].

[82] ts 32, see [30] above.

[83] ts 236, see [37] above.

[84] ts 262, see [57] above.

[87] It is not necessary to decide whether there was also a wrong decision on a question of law.

[88] Killick v The Queen [1981] HCA 63; (1981) 147 CLR 565, 569.

[89] R v Bartels (1986) 44 SASR 260.

[90] Respondent's supplementary submissions [8] - [9].

[91] Respondent's supplementary submissions [10].

[92] Respondent's supplementary submissions [10].

[93] Respondent's supplementary submissions [11].

[94] Appellant's supplementary submissions [6].

[95] Appellant's supplementary submissions [9].

[96] Appellant's supplementary submissions [11].

[97] Appellant's supplementary submissions [12].

[98] Shaw v The Queen [1952] HCA 18; (1952) 85 CLR 365.

[99] Lawrence v The Queen [1931] ArgusLawRp 87; (1981) 38 ALR 1.

[100] R v Chin [1985] HCA 35; (1985) 157 CLR 671.

[101] R v Soma [2003] HCA 13; (2003) 212 CLR 299.

[102] Manyam v The State of Western Australia [2010] WASCA 107; (2010) 201 A Crim R 156 [19], [96] ‑ [106].

[103] Bevan v The State of Western Australia [2012] WASCA 153; (2012) 43 WAR 233 [71] ‑ [75], [181] ‑ [194].

[104] O'Meara v The State of Western Australia [2013] WASCA 228; (2013) 235 A Crim R 209 [20] ‑ [28], [139] ‑ [143].

[105] The State of Western Australia v Jackson [2019] WASCA 118; (2019) 55 WAR 285 [49] and cases there cited.

[106] The State of Western Australia v Jackson [49], citing Petty v The Queen (1991) 173 CLR 95, 108.

[110] Respondent's supplementary submissions [11].

[112] As to the principles relevant to the court's discretion to grant an adjournment under s 89, see Snook v State of Western Australia (No 2) [2015] WASCA 29 [93] - [95].