Secretary, Department of Planning and Environment v Keelendi Farms Pty Ltd; Secretary, Department of Planning and Environment v T J O'Brien Investments Pty Ltd; Secretary, Department of Planning and Environment v Edenmore Farms Pty Ltd; Secretary, Department of Planning and Environment v Timothy Justin O'Brien

Applicable Legal Principles

1. The focus on fairness is derived from the authorities. The general principle is that the prosecutor must call all its evidence in its case and cannot split its case by calling evidence in reply where it could have anticipated the evidence to be called by the defence. In Shaw v R [1952] HCA 18; (1952) 85 CLR 365 Dixon, McTiernan, Webb and Kitto JJ said (at 379-380): 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. The Court possesses a power to allow further evidence to be called, but it must be exercised according to rule and the rule is against reopening the Crown case unless the circumstances are most exceptional. We are not disposed to lay down the rule in the terms adopted from Tindal C.J. in R. v. Frost. It is a matter of practice and procedure, and in such matters, even where the procedure is criminal and is directed to safeguarding the position of the accused, there is less reason for closely following English authority than where the development of the substantive law is involved. It is, for example, difficult to apply the rule where the jury ask for the recall of a witness or further proof or disproof of a fact. 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.
2. In a separate judgment, Fullagar J echoed the plurality as follows (at 382): I have felt, in the course of considering this case, some doubt as to whether this Court ought to interfere, but I have come to the conclusion that special leave to appeal ought to be granted. The Court has not adhered to the very strict rule laid down in Eather v. The King, and the dissenting judgment of Isaacs J. in that case may be said to have prevailed almost from the outset. The discretion is "unfettered", though it is necessary for an applicant to make "a prima-facie case showing special circumstances": see In re Eather v. The King. In the present case the crime of which the applicant was convicted is a capital crime.
3. The prosecutor may be permitted to reopen its case in order to supplement a deficiency in its case that was overlooked or is merely technical (Wasow v R (1985) 18 A Crim R 348 at 350 per Street CJ). In Wasow the Court of Criminal Appeal distinguished Shaw on the basis that the latter case concerned an application by the Crown to reopen its case after the close of the defendants' case.
4. In this application the tender of the recording was neither overlooked nor arguably technical in nature.
5. Reopening can occur at any time. It is a matter for the discretion of the trial judge but the question is one of fairness based upon the principle that the accused is entitled to know the case to be met (Pham v R [2008] NSWCCA 194 at [35] per Allsop P).
6. In Pham a statement of a witness was not tendered by oversight. The Court of Criminal Appeal held that the trial judge had correctly permitted the Crown to reopen after it had started to address to permit the tender (at [35]): 35 The trial judge permitted this oversight to be cured. There was power to do so: Wasow (1985) 18 A Crim R 348 at 350 (though a case before any defence case); and R v Chin (1985) 157 CLR 671 at 677 and 685. The question is essentially one of fairness, based on the accused being entitled to know the case to be met. There could have been no doubt that Mr Tran and his counsel understood the intended extent of Mr Nguyen's evidence. It was not asserted that there was any step taken or not taken by the defence based on the limitation in the Crown case caused by the error. Rather, it was submitted that prejudice would be caused by the possibility or a potential for the jury placing disproportionate weight on the evidence lately produced. Counsel for Mr Tran cross-examined on the further evidence.
7. As the authorities emphasise, the discretion is to be exercised sparingly (Dryburgh v The Queen [1961] HCA 54; (1961) 105 CLR 532 at 535 per Kitto, Taylor and Windeyer JJ. A similar sentiment was expressed in R v Nguyen (1998) 102 A Crim R 577 at 587 per Smart J).
8. Thus, where, as is the present case, the application to reopen is made after the defendants' case has closed, although a trial judge retains a discretion to allow the prosecution to call further evidence, the discretion should be exercised "only if the circumstances are very special or exceptional" and not if the calling of the further evidence could have been foreseen by the prosecution.
9. In R v Chin [1985] HCA 35; (1985) 157 CLR 671 Gibbs CJ and Wilson J opined (at 676-677): The principles that govern the exercise of the discretion of a trial judge to call evidence after the close of the case for the defence have been discussed in this Court in Shaw v. The Queen; Killick v. The Queen and Lawrence v. The Queen. The general principle is that the prosecution must present its case completely before the accused is called upon for his defence. Although the trial judge has a discretion to allow the prosecution to call further evidence after evidence has been given for the defence, he should permit the prosecution to call evidence at that stage only if the circumstances are very special or exceptional and, generally speaking, not if the occasion for calling the further evidence ought reasonably to have been foreseen. The principle applies where the prosecution seeks to call evidence to rebut matters raised for the first time by the defence; if the rebutting evidence was itself relevant to prove the prosecution case (unless, perhaps, it was no more than marginally, minimally or doubtfully relevant: Reg. v. Levy and Tait) and the need to give it could have been foreseen it will, generally speaking, be rejected. The principle would not prevent the prosecution from giving in reply evidence directed to an issue the proof of which did not lie on the prosecution, such as insanity, or from rebutting evidence of the accused's good character, provided that the prosecution had not anticipated the raising of an issue of this kind and led evidence with regard to it, for the prosecution must not split its case on any issue. Also, it has been held that evidence may be given in reply to prove some purely formal matter the proof of which was overlooked in chief.
10. Chin was quoted and applied in Morris v R [2010] NSWCCA 152 (at [26]-[31] per McClellan CJ at CL) and in Musa v R [2019] NSWCCA 279 (at [77]-[79] per Gleeson JA).
11. In Morris, the Court of Criminal Appeal clarified that there is no two-stage process as articulated by the trial judge in that case, rather whether the Crown ought reasonably to have foreseen at some earlier stage the need to call the evidence the subject of the reopening application forms part of the consideration of whether very special or exceptional circumstances exist which justify reopening (at [30]): 30 In my view the appellant's submission should be accepted. The question of whether the circumstances are "very special" or "exceptional" is to be determined having regard to all of the relevant circumstances. As the passage which I have extracted from Chin makes plain one of those circumstances, which may itself be determinative is whether the need to call further evidence "ought reasonably to have been foreseen." That issue is not to be resolved as a separate question although of considerable significance when determining whether the application to reopen should be granted.

Leave to Reopen is Granted

1. In my view, having regard to the circumstances of the application, and more generally of the proceedings, fairness demands that leave to reopen ought to be granted to the prosecutor to tender the recording. This is because: 1. while the prosecutor made the deliberate decision not to tender the recording, this was premised upon a misapprehension that it did not need to do so in light of the Court's ruling to the defendants' objection to the ROI, as explained above; 2. this is not an instance where the prosecutor ought reasonably to have foreseen at some earlier stage the need to call this evidence. The prosecutor genuinely believed that it was not necessary to tender the recording because the ROI had been admitted into evidence. This belief was not unreasonable given the manner in which the objection was dealt with and the prosecutor's lack of knowledge until the draft short minutes were exchanged that the accuracy of the ROI was in dispute. At no prior point did the defendants notify the prosecutor of any potential problem with the transcript of the ROI. This is not a case of the prosecutor seeking to split his case and call evidence in reply; 3. although the recording was served late by the prosecutor, the defendants were notified that the prosecution sought to rely upon the ROI, and in particular, specific parts of the ROI, in a timely manner. The defendants raised no objection to those specific parts; 4. the defendants did not raise any objection to the late service of the ROI; and 5. the defendants have not identified any disadvantage or unfairness to them by permitting leave to reopen.
2. For all these reasons, I find that sufficient very special or exceptional circumstances exist that warrant the exercise of my discretion to grant leave to the prosecution to reopen his case and to tender the recording of the ROI.

Orders

1. The prosecution is granted leave to reopen its case for the purpose of tendering the recording of the ROI contained in Ex E (Ex SB-1 to the Beaumont affidavit). As a consequence, and for avoidance of doubt, the ROI is now admitted without limitation.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 27 February 2025