CONSIDERATION
26In the present case the Court made the directions for notices expressly contemplated by Division 2A including for disclosure of the prosecution's evidence, but no direction has yet been made for the filing of the prosecution's supplementary evidence.
27In my opinion, leave of the Court is required to file the prosecutor's supplementary evidence. The Court has power to control and supervise the conduct of criminal proceedings, including so as to prevent unfairness. In an appropriate case, this extends to refusing to permit a prosecutor to lead evidence that is otherwise relevant and admissible, for example if the evidence would cause the defendant to suffer irremediable prejudice, or prejudice which could only be cured by an order that the Court is not willing to make, such as for an adjournment of the hearing: State Pollution Control Commission v Australian Iron & Steel Pty Ltd (1992) 29 NSWLR 487 (CCA) at 493B per Gleeson CJ (Sheller JA and Badgery-Parker J agreeing). In that case, which was decided before the introduction of statutory case management provisions in criminal proceedings, Gleeson CJ said at 492 - 493 (omitting citations):
Failure to comply with directions of the kind with which we are concerned gives the trial judge a discretionary power to exclude the evidence in question. It makes no difference to the existence of the power, as distinct from the discretionary considerations relevant to its exercise, that proceedings are criminal in nature. It was said in argument that prosecuting authorities have asserted in the Land and Environment Court a "right" to lead evidence notwithstanding a failure to comply with directions. Such an assertion, if it had been made, is baseless. The power to give directions necessarily carries with it a power to refuse to countenance non-compliance. A power to direct that certain steps be taken in relation to adducing evidence necessarily carries with it a power to refuse to permit a party to adduce evidence otherwise than in accordance with those steps.
Furthermore, the court has an inherent power to control and supervise the conduct of proceedings so as to prevent unfairness. This power is not restricted to defined and closed categories and, in an appropriate case, extends to refusing to permit a prosecutor in criminal proceedings to lead evidence that is otherwise relevant and admissible. It is to be noted that Cripps J found, in the present case, that, if the evidence in question were permitted, the respondent would suffer prejudice which could only be cured by an adjournment; an adjournment his Honour was not willing to grant.
28In the same case, Gleeson CJ suggested that a prosecutor may be obliged to lead new evidence-in-chief in answer to a defendant's foreshadowed evidence because of the general obligation of the prosecution in criminal proceedings to present its case completely before the accused is called upon for his defence, and that this would not constitute a breach of a court direction that the prosecutor file and serve its evidence-in-chief at an earlier time: at 490C. By analogy, it may be said that, subject to the Court's control and supervision including so as to prevent unfairness, it is generally permissible for the prosecution to call supplementary evidence-in-chief in response to a defendant's objections to the admissibility of prosecution evidence, particularly under the Division 2A regime where such objections are made at an early stage of the proceedings.
29The prosecutor is not, in my view, in breach of ss 247E or 247J, such as to attract the sanctions in s 247N, by now seeking to file supplementary evidence-in-chief. This is because at the time it gave notice under those sections it identified the evidence it then proposed to adduce. It did not form an intention to adduce the supplementary evidence until later: after and in response to the defendant's objections to admissibility of evidence and dispute of facts.
30Nevertheless, the direction the prosecutor now seeks for filing of supplementary evidence-in-chief is to similar effect as a direction for an extension of time to file evidence-in-chief. Such a direction was made in the analogous pre-Division 2A case of Environment Protection Authority v Gilmour [2000] NSWLEC 144, (2000) 109 LGERA 228. There Bignold J considered that it was just and efficient to extend the time for filing of prosecution evidence after the time permitted by an earlier direction and after the defendant's plea of guilty. On the assumption that the only possible prejudice to the defendant lay in the potential that the additional affidavits may contain evidence vital to the prosecution case, his Honour held that justice did not require precluding admissible evidence provided that fair notice of it was given to the defendant: at [37]. The defendant seeks to distinguish this decision on the basis of its unfair prejudice submission referred to above at [24(b)]: essentially, that the prosecutor is taking advantage of the defendant's mandatory disclosure of objections to admissibility of evidence and disputation of facts to patch up its case without telling the defendant at the second round orders stage that it might do so. I do not think that is a sound point of distinction. The prosecutor's s 247E(1)(c) obligation was to provide copies of all affidavits or statements that, at the time of the s 247E notice, it proposed to adduce at the hearing. This goes to the prosecutor's state of mind at that time. There is no suggestion that when the second round disclosure orders were made on 8 March 2013 the prosecutor in fact proposed to adduce supplementary evidence but did not disclose that intention. The alleged unfair prejudice flows from the effect of the legislation, which, as analysed earlier, encroaches on the defendant's right to silence by requiring it to give notices as to various matters, including objections to the admissibility of the prosecution evidence and disputation of facts in the prosecutor's statement of facts.
31If this were a civil matter where the defendant's objections to the plaintiff's evidence were communicated at such an early stage of the proceedings and the plaintiff sought an extension of time to file supplementary evidence in chief to meet those objections, then it may be expected that generally the Court would grant such leave. In requiring notice of objections to admissibility of evidence and disputation of facts prior to the hearing, Division 2A equates criminal proceedings with the usual practice in civil proceedings. Indeed, it goes further in that it requires objections to be notified at an earlier point in time than is the usual practice in civil proceedings. In this respect, I think that the usual civil procedure practice can learn from this new statutory criminal procedure. That being the legislative scheme, I do not think that a defendant can generally complain of unfairness or prejudice if a prosecutor, who has acted in good faith, seeks to file supplementary evidence at a relatively early stage of the proceedings to meet the defendant's objections to the admissibility of parts of the prosecutor's evidence. In such a case, the defendant has received fair notice. This statutory scheme also operates to the benefit of a defendant. For example, if a prosecutor were to make timely objection to the admissibility of parts of a defendant's expert reports, which a defendant is obliged to serve under s 247K(f), the defendant would have the same opportunity to patch up that evidence by supplementary evidence.
32The exercise of the Court's supervisory discretion to grant leave to file supplementary evidence has regard to the particular circumstances. It is a matter of fact and degree. If, for example, the only supplementary evidence that a prosecutor proposes to adduce is a curriculum vitae to prove the expertise of a proposed expert witness whose evidence the defendant has objected to because of lack of evidence of expertise, there should generally be no difficulty in exercising the discretion in favour of allowing such supplementary evidence to be filed. In oral argument in the present matter, the defendant accepted that example. On the other hand, for example, if a defendant did not receive fair notice of supplementary prosecution evidence such that it would be unfairly prejudiced in a way that was irremediable, or not remediable by an order that the Court would countenance (for example, adjournment of the hearing), then that might be a powerful factor influencing the Court not to allow the supplementary evidence to be filed.
33The legislative scheme by which each party gives early notice of objections to the admissibility of evidence, gives the other party the opportunity, by filing timely supplementary evidence-in-chief, to meet the objections (if it can), thereby avoiding disruption at, and possible adjournment of, the trial if such objections were not taken until the trial. The prosecution cannot impermissibly split its case by calling such evidence after the defence case: The Queen v Chin [1985] HCA 35, (1985) 157 CLR 671 at 684-685.
34On discretion, it is true that the prosecutor is taking advantage of the defendant's disclosure to, as the defendant puts it, "patch up" the prosecution case. But it is not doing so because its earlier evidence is grossly deficient nor has it acted in bad faith, and its ability to do so is the product of the statutory scheme. The proposed evidence is supplementary to that already filed. Although it is substantial and the defendant has not yet had the opportunity to analyse it in detail, the defendant can and should be protected in that regard by a timetable that gives it a fair opportunity to analyse it in detail. The defendant will incur additional costs, but the defendant can and should be protected by an order, which the prosecutor proposes, that protects it in respect of costs thrown away.