Obian v The King [2024] HCA 18

HIGH COURT OF AUSTRALIA

GAGELER CJ,

GORDON, GLEESON, JAGOT AND BEECH‑JONES JJ

SAER OBIAN APPELLANT

AND

THE KING RESPONDENT

Obian v The King

[2024] HCA 18

Date of Hearing: 15 March 2024

Date of Judgment: 8 May 2024

M77/2023

ORDER

Appeal dismissed.

On appeal from the Supreme Court of Victoria

Representation

B W Walker SC with C T Carr SC and H L Canham for the appellant (instructed by Milides Lawyers)

E H Ruddle KC with G L Buchhorn for the respondent (instructed by Office of Public Prosecutions (Vic))

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Obian v The King

Statutes – Construction – Statutory powers – Where s 233(2) of Criminal Procedure Act 2009 (Vic) provides that prosecution may, with leave of trial judge, call evidence in reply "[i]f, after the close of the prosecution case, the accused gives evidence which could not reasonably have been foreseen by the prosecution" having regard to accused's response to summary of prosecution opening and accused's response to notice of pre‑trial admissions – Where appellant convicted on charge of trafficking in drug of dependence – Where evidence of prosecution included evidence of alleged co‑conspirator that appellant hired van involved in moving drugs – Where appellant gave evidence that he hired van on behalf of friend and handed van over to friend and had nothing more to do with van – Where prosecution applied for leave to adduce evidence in reply – Where prosecutor stated appellant's evidence was first time appellant said he hired van and that appellant previously denied being at car rental place – Where statements incorrect as prosecution had been previously informed appellant admitted he hired van – Where trial judge granted leave for prosecution to adduce evidence in reply – Whether exercise of power under s 233(2) of Criminal Procedure Act involved substantial miscarriage of justice because of prosecutor's incorrect statements – Whether incorrect statements material to trial judge's decision – Whether evidence was not reasonably foreseeable – Whether trial judge permitted to have regard to any relevant material or only to two specified documents in s 233(2).