Legal Principles Applicable to an Application For Leave to Re-open Criminal Proceedings to Adduce Fresh Evidence
23The applicable legal principles in respect of an application to re-open a party's case to adduce additional evidence in civil proceedings have been stated many times by the Court (see, for example, Wollondilly Shire Council v Foxman Environmental Development Services Pty Ltd (No 4) [2011] NSWLEC 35 and Kennedy v Stockland Developments Pty Ltd (No 6) [2012] NSWLEC 34).
24However, as Mr Perini correctly noted, these are not Class 4 proceedings, they are Class 5 proceedings, which are criminal in nature. Different considerations therefore apply.
25Regrettably, Storey & Gough, Mr Perini's solicitors, were not able to assist the Court by indicating what these additional considerations were. The Court was therefore left to research this matter, at short notice, by itself.
26Curiously, there is very little case law on the subject. Most decisions are concerned with the issue of when it is appropriate to grant leave to re-open to adduce fresh evidence on appeal. That is to say, typically after judgment has been given and the orders made at first instance have been perfected. That is not this case.
27In the present case, judgment remains reserved and thus many of the admonishments and cautionary epithets in respect of the granting of leave to adduce fresh evidence on appeal do not apply. The importance of the principle of finality of litigation is also considerably more muted in this instance (Burrell v The Queen [2008] HCA 34; (2008) 238 CLR 218 at [15] and D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1 at [34]).
28Mahmood v State of Western Australia [2008] HCA 1; (2008) 232 CLR 397 concerned an application during the course of a murder trial by the defence to re-open its case to tender the entirety of a video recording that had been only tendered in part by it. The application was warranted, the defence submitted, because it demonstrated that the defendant had been emotional during a re-enactment, whereas the prosecution had asked the jury to draw an inference about his lack of emotion during the re-enactment. The trial judge refused the application.
29This decision was upheld on appeal, the Court of Appeal answering the "central question" of "whether the proposed evidence was sufficiently material to warrant re-opening" (Mahmood v State of Western Australia [2007] WASCA 101 at [156]) in the negative. Earlier in the judgment, the Court of Appeal had stated the test as "whether the interests of justice and fairness to the accused require the re-opening of the defence case. ...The assessment will be affected by the issues in the case and the substance of the proposed evidence" (at [152] and the authorities applied thereat).
30In allowing the appeal, the High Court did not formulate the test to be applied in such applications but remarked that (at [15]):
Courts are generally inclined to allow a re-opening to call evidence considered to be of sufficient importance, even after addresses.
31In doing so the Court cited the judgment of Pincus JA in Dyett v Jorgensen [1995] 2 Qd R 1, where his Honour said (at 5):
As has been pointed out, there was no suggestion that the course proposed would involve any substantial inconvenience or expense and the additional evidence appeared to be both brief and material. Where it does not appear that there has been any conscious decision to omit the additional evidence sought to be called, nor that there is any practical obstacle in the way of allowing the re-opening, I think a court would often incline towards allowing the defence a re-opening to call sufficiently important evidence even after addresses, in a criminal case.
32Both Mahmood (in the High Court) and Dyett were recently endorsed and applied in Belford and Bound v R [2011] QCA 43; (2011) 208 A Crim R 256 (at [125]).
33Distilling the applicable principles:
(a) the touchstone for granting leave to re-open is whether it is in the interests of justice and fairness to the accused to permit the re-opening;
(b) if the evidence is of sufficient importance a court should be generally inclined to permit the re-opening;
(c) this is particularly so where the evidence is brief and material;
(d) if the re-opening will involve substantial inconvenience or expense this will militate against leave being granted;
(e) likewise, if there was a conscious decision to omit the evidence during the proceedings a court will be disinclined to grant leave; and
(f) if there is any practical obstacle to the admission of the fresh evidence, such as, for example, the unavailability of a witness to rebut the evidence, or if prejudice is likely to be caused to a party by the admission of the evidence, this may militate against leave being granted.
34Although these principles have been stated in the context of a defended hearing on criminal liability, they are, in my opinion, nevertheless apposite to a sentence hearing.
35Plainly enough, in this case the evidence was not available to be adduced at the time of the sentence hearing. This is not necessarily fatal, however, to the present application given the purpose for which the evidence is sought to be adduced. That is to say, it is not uncommon in this Court to permit evidence of a subsequent approval by a consent authority as a matter to be relied upon in mitigation in a sentence hearing, relevant, as it is, to the issue of the harm caused to the environment by the commission of the offence.
36In the present case, I have concluded that, on balance, leave to re-open ought to be granted to adduce evidence of the building certificate. While I entertain residual doubt as to its ultimate materiality given its futurity, if it is to be employed in the manner submitted by Mr Perini then it may be of relevance, and out of abundant caution having regard to the interests of justice and fairness to Mr Perini, he should be afforded the opportunity to adduce the evidence. I am also mindful of the fact that the fresh evidence is brief and will not, other than the provision of some short additional written submissions by the parties, involve any substantial inconvenience or raise any practical obstacle by reason of its admission.