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Obian v The King [2023] VSCA 18 (16 February 2023)

Last Updated: 21 February 2023

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CRIMINAL LAW – Appeal – Conviction – Applicant convicted of three charges of trafficking in a drug of dependence, 1,4-butanediol (‘1,4-BD’) – Applicant gave evidence in his defence – Prosecution permitted to re-open case and introduce rebuttal evidence before cross-examination of the applicant completed – Admission of rebuttal evidence did not amount to a miscarriage of justice – Prosecution could not have reasonably foreseen evidence given by applicant – Extension of time in which to apply for leave to appeal granted, but leave to appeal refused.

CRIMINAL LAW – Appeal – Conviction – Trial judge refused defence counsel leave to confer with applicant during cross-examination – Whether refusal was an irregularity in the trial resulting in a substantial miscarriage of justice – Extension of time in which to apply for leave to appeal granted, but leave to appeal refused.

CRIMINAL LAW – Appeal – Sentence – Three charges of trafficking in a drug of dependence in not less than a commercial quantity – Quantities of 1,4-BD between 400 and 8,000 times commercial quantity threshold – Maximum penalty 25 years’ imprisonment – Applicant directing mind of sophisticated operation with sole motivation for financial gain – Total effective sentence 17 years and 10 months’ imprisonment with non-parole period of 12 years and 10 months – Whether sentence manifestly excessive – Mitigating factors of youth, no prior convictions, delay and COVID-19 burden of imprisonment – Totality – Co-offender who played less substantial role and had benefit of other mitigatory factors sentenced to 8 years’ imprisonment – Total effective sentence not wholly outside range open to trial judge – Sentence did not breach principle of parity – Extension of time in which to apply for leave to appeal sentence refused.

Criminal Procedure Act 2009, s 233; Shaw v The Queen [1952] HCA 18; (1952) 85 CLR 365; Killick v The Queen [1981] HCA 63; (1981) 147 CLR 565; Lawrence v The Queen [1931] ArgusLawRp 87; (1981) 38 ALR 1; R v Chin [1985] HCA 35; (1985) 157 CLR 671; Alfarsi (a pseudonym) v The Queen [2021] VSCA 283, considered.

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PRIEST JA:

Introduction

1. After a trial of almost five weeks’ duration, on 24 September 2019 a jury in the County Court found the applicant guilty of three charges of trafficking in a drug of dependence, 1,4-butanediol (‘1,4-BD’), in not less than a commercial quantity.^[1] He was subsequently imprisoned.^[2]
2. On charge 3, the prosecution case against the applicant was that, on 14 June 2016, he possessed a large quantity of 1,4-BD for sale,^[3] or was complicit with others in the movement of that drug to the ultimate consumer in accordance with the common law concept of trafficking.^[4] In particular, the prosecution alleged that, in the early hours of 14 June 2016, the applicant rented a white Toyota HiAce van (‘HiAce’) from a vehicle rental business, Mini Koala Car Rentals (‘Koala’), located in Bell Street, Preston, which was then used by him and co-offenders to transport the drugs between different premises.
3. A remarkable feature of the trial, around which the principal issue touching conviction in this Court revolves, is that, against the background of the applicant having given particular evidence-in-chief concerning charge 3, the judge permitted the prosecution to re-open its case — after the prosecutor had already embarked upon her cross-examination of the applicant — so as to introduce ‘rebuttal’ evidence from two police surveillance witnesses.
4. In this Court, the applicant sought an extension of time within which to seek leave to appeal against both conviction and sentence, and leave to appeal against both.
5. Ultimately, the applicant relied on three grounds with respect to conviction. Renumbered for the sake of convenience, the grounds are as follows:
   1. The learned trial Judge erred in granting leave to the prosecutor to call evidence in reply on the basis that the accused had given evidence that could not reasonably have been foreseen by the prosecution.
   2. There was an irregularity in the trial, which resulted in a substantial miscarriage of justice, by reason of:

   (a) The prosecutor relying upon the following propositions as to the course of the proceedings in support of the application, each of which was incorrect:

   (i) it was always disputed that the applicant was the person who hired the van from Mini Koala Car Rentals;

   (ii) the applicant’s evidence-in-chief was the first time that the prosecution had heard that the applicant now said he did hire the van;

   (b) Defence counsel failing to correct those incorrect statements;

   (c) The learned trial Judge determining the application on the basis of the incorrect propositions identified above.

   3. The learned trial Judge preventing the applicant and his counsel communicating in relation to the Crown’s application to re-open the Crown case amounted to a fundamental irregularity in the trial, and thus gave rise to a substantial miscarriage of justice.
6. As I have indicated, the principal issue raised by the grounds is whether a substantial miscarriage of justice was occasioned by the judge permitting the prosecution to call evidence in reply after the applicant had given evidence. That issue turns on whether the applicant had given evidence which could not reasonably have been foreseen by the prosecution; and in particular, whether the applicant’s evidence-in-chief was the first time that the prosecution had been apprised of the fact that the applicant agreed that he was the person who had hired the HiAce from Koala. It will also be necessary to examine the trial judge’s direction forbidding defence counsel from communicating with the applicant.
7. For the reasons that follow, I consider that the grounds 1 and 2 must succeed, and that the applicant’s convictions cannot be permitted to stand. I would therefore grant the extension of time; grant leave to appeal against conviction; allow the appeal; set aside the applicant’s convictions; and order a new trial.

The prosecution evidence
Overview

8. So as to understand the issues raised by the grounds, it is necessary to summarise the main features of the evidence at trial. In so doing, I note the unhappy fact that the trial that resulted in the applicant’s conviction was the fifth trial that he had faced, juries in the previous four trials having been discharged without verdict. For present purposes, it is sufficient to observe that the first and second, and the fifth, of the applicant’s trials were conducted before different judges by different prosecutors.
9. Each of the three charges on which the applicant was convicted arose out of an investigation, codenamed ‘Operation Merlin’, conducted by the Victoria Police Drug Taskforce, which culminated in the arrest of a number of people and the seizure of over 3,800 kilograms of 1,4-BD on 14 June 2016. The prosecution case at trial was that the applicant imported 1,4-BD into Australia from China on two occasions in 2015 using a company, SAA Cleaning Services Pty Ltd (‘SAA’), of which he was the sole director, secretary, and shareholder. Earlier, the applicant had taken steps to register SAA as an importer of industrial chemicals with the Department of Health.

Charge 1

10. Evidence in the trial revealed that, on 11 May 2015, SAA placed an order with Tai’an Health Chemical Company Ltd (‘Tai’an’) located in Tai’an, China, for one pallet of
    1,4-BD for USD $1,400 (or AUD $1,812.01). Tai’an packaged the order of 1,4-BD into four 200 litre drums. The shipment arrived in Australia on 13 July 2015.
11. The evidence showed that the applicant enlisted the services of Austorient Freight Services (‘Austorient’) to deal with the logistics involved in importing the drums into Australia. Correspondence from the applicant to Austorient reveals that he enquired about the shipment’s progress in late June 2015, and was told it had been delayed. An Austorient tax invoice confirms a shipment of ‘1,4 Butanediol’ supplied by Tai’an was billed to SAA at an address in Glenora Avenue, Coburg (‘the Coburg address’), the family home where the applicant resided. Payment of $1,480.90 was required. That amount was paid in cash amounts of $900 on 9 July 2015 and $581 on 10 July 2015.
    A tax invoice for $806.76 from Famous Pacific Shipping Vic Pty Ltd dated 2 July 2015 was also issued to SAA.
12. As I have said, the shipment arrived in Australia on 13 July 2015. It was intercepted by Australian Border Force officers, who determined the consignment weighed
    888 kilograms (including the barrels).
13. The shipment was picked up from Australian Container Freight Services at 7.06 am in the morning of 13 July 2015, and transported on a truck directly to the Coburg address, where the driver assisted in unloading four silver-coloured barrels from the rear of the truck into a garage at the premises. An Austorient Delivery Docket shows that the goods were received by SAA at the Coburg address on 13 July 2015, and that the applicant signed for them.

Charge 2

14. On 29 September 2015, SAA ordered 16 metric tonnes of 1,4-BD from Tai’an. Bank records showed that $15,000 cash was deposited into the SAA bank account that day, and $20,000 was deposited into the applicant’s personal bank account. The evidence showed that the applicant then authorised the transfer of AUD $37,229 to Tai’an.
15. According to Tai’an, the 1,4-BD cost USD $1,629 per metric tonne, with a total price of USD $26,064. Based on the applicable exchange rate, the total price was the equivalent of approximately AUD $37,229.
16. An Austorient tax invoice in the amount of $5,659.17, billed to SAA, confirms a shipment of 1,4-BD was expected to arrive on 22 November 2015. An invoice for $5,700 was paid in cash on 23 November 2015. The total weight of the consignment was 17,760 kilograms, including barrels. There were 80 drums of 1,4-BD in the shipment, made up of 20 pallets each containing four drums.
17. On 27 November 2015, the consignment arrived in Australia. The applicant was then required to pay $5,659.17 in additional charges before the goods could be released. This charge was billed to SAA and paid in cash on 23 November 2015.
18. Consistently with the applicant’s instructions, the consignment was delivered to Neutral Warehouse that same day, 27 November 2015. It was then collected by the applicant in four separate lots. The first collection was on 27 November 2015, and the other three collections were on 30 November 2015.
19. On 30 November 2015, the applicant also ordered 5,712 one litre bottles, together with 6,000 caps, from FPC Food Plastics. The order was placed in the name of ‘Sam’ and a mobile telephone number registered to the applicant was provided. On 2 December 2015, the applicant and another man collected the order. The applicant made a cash payment of $2,519.40, and four pallets containing the bottles were loaded onto a truck.
20. A few days later, on 8 December 2015, the applicant enquired about ordering 2,000 boxes from Australia Corrugated Packaging (‘ACP’), which he said were to be used to carry bottles. He gave specific dimensions and told the ACP manager the boxes were required to hold six bottles each. On 11 December 2015, the applicant attended ACP and ordered 2,030 cardboard boxes. He then collected 1,000 boxes at a cost of $638, which he paid in cash. The applicant returned to ACP on 15 December 2015, and collected the remaining 1,030 boxes, for which he paid $643 in cash.
21. At trial, the prosecution alleged the boxes and bottles were used to hold and store 1,4-BD which police later seized from various locations including: a storage area in a florist’s premises, ‘John’s Flower Box’, at 170–176 Lygon Street, Brunswick East, rented by Khaled Moustafa (‘Moustafa’); premises, ‘Adams Fruit and Vegetable, occupied by Munir Omer (‘Omer’), situated at 296 Racecourse Road, Flemington; a public self-storage facility, ‘Public Self Storage’, at 7 Ashley Street, Braybrook, also leased by Moustafa; and the HiAce, which was being used by Moustafa.
22. The prosecution case on charges 1 and 2 was that the applicant trafficked in a commercial quantity of a drug of dependence, 1,4-BD, that trafficking being constituted either by possession for sale or according to common law principles. Hence, the prosecution alleged that the applicant participated in the progress of the illicit goods from source to consumer in a commercial setting, with contact between the applicant and at least one other person.

Charge 3

23. With respect to charge 3, the prosecution case was that, in the early hours of 14 June 2016, the applicant was involved (with others) in the movement of boxes and drums containing 1,4-BD to various locations round Melbourne. In part, that movement of the substance was accomplished using the white HiAce rented from Koala in Bell Street, Preston. Police seized 1160 kilograms of 1,4-BD from the HiAce (and more than 3000 kilograms from elsewhere). The applicant denied any involvement in the acts of possession involved in the movement of the drums and boxes.

Khaled Moustafa

24. In essence, the applicant’s ‘defence’ was that SAA was a legitimate industrial cleaning company, and that he had imported and possessed the relevant 1,4-BD for lawful use as a cleaning product.
25. The principal prosecution witness refuting the applicant’s defence was Moustafa, who had met the applicant in or about 2014. He gave evidence that he knew the applicant as ‘Sam’. Moustafa said he saw some drums at the Coburg premises in November 2015. The applicant told him it was a cleaning product, but he was not going to use it for that purpose. According to Moustafa, the applicant told him that SAA was a front permitting the importation of 1,4-BD which, when swallowed, has the same effect as the drug ‘GHB’. The applicant told him that he was going to sell it by the bottle. Moustafa said he had seen the applicant melting down the substance so it could be put in bottles.
26. Moustafa’s evidence was that he had organised a storage unit in Braybrook. When the applicant found out about it, he asked to move some drums and boxes there. Moustafa permitted this to occur on the basis that the applicant pay half the rent. The applicant then filled the unit with 1,4-BD. Further, in February 2016, the applicant negotiated the rental of storage space at a florist shop. Moustafa said he helped the applicant move boxes of 1,4-BD to the storage space in the shop.
27. On 13 June 2016, Moustafa had a physical ‘scrap’ with an individual at the florist shop (referred to in evidence as a ‘kidnapping’). Subsequently, when he and the applicant drove past the shop, it was apparent that police had been contacted. He and the applicant decided to move the boxes and drums from Braybrook, because a receipt left at the florist shop could link Moustafa to the Braybrook premises.
28. According to Moustafa, the applicant and Omar Bchinnati (‘Bchinnati’) picked him up from Lygon Street, Carlton, later that evening in a silver Toyota Corolla. Moustafa said that they were trying to work out where to store the 1,4-BD. That was when he telephoned Munir Omer (‘Omer’). His evidence was:

[We] were trying to work out where to store the 1,4 BD, that’s when I came up with meeting with [Omer]. I rang him. I rang him a few times. I rang him a heap of times. He eventually answered, and I said I need to move some stuff into his backyard, and it will only be for a night. That’s when [the applicant] rang the van to hire.

29. I pause to note that in an intercepted telephone conversation between Moustafa and Bilal Allouche (‘Allouche’) at 11.21 pm on 13 June 2016, Moustafa asked Allouche whether he could assist in urgently hiring a van or a truck. He and the applicant then went to Allouche’s premises, but Allouche could not assist. It appears that Moustafa then drove the applicant to the Coburg premises, from which the applicant left to hire a van.
30. Moustafa’s evidence was that they moved boxes and drums. He said that the applicant and Bchinnati were in the Toyota Corolla, and he and Omer were in a van hired by the applicant. They collected boxes from the storage unit in Braybrook (and from another storage unit), and transported them to Omer’s fruit shop in Racecourse Road, Flemington. Upon returning to the Braybrook unit a second time, Moustafa said, police arrested him and Omer (and two helpers, Patrick Formosa and Ahmed Inusah) inside the unit. The applicant and Bchinnati remained outside in the Corolla keeping an eye out for the police. In CCTV recordings shown to him by the prosecutor, Moustafa identified himself as the driver of the HiAce that the applicant had rented. He also gave evidence that certain footage showed the applicant and him moving backwards and forwards to the van, and that other footage showed the applicant opening the rear door of the van and jumping in.
31. I need not refer to Moustafa’s cross-examination by defence counsel in detail, save to say that counsel challenged Moustafa on the overwhelming bulk of his evidence-in-chief, and put to him that he was a drug dealer who had thrown the applicant ‘under a bus’ to get a sentencing discount. The cross-examination concluded with the following ‘puttage’:

[DEFENCE COUNSEL]: ... Now, to be clear, Mr Moustafa, I suggest to you that Mr Obian was not present at any of the establishments, [the Braybrook storage unit] or anywhere else you went on the evening of 13, 14th June 2016. What do you say to that?---That’s not true because he was present.

He did not assist, he was not present and did not assist you or anyone else in the moving of materials on the evening of 13th, 14th June of 2016. What do you say to that?---That’s not true. He assisted and he was there present. There was footage of it as well, um, the other day.

So you say?---There was footage, we’ve seen it.

And finally, Mr Moustafa, you agreed that you were not present at the time the [HiAce] was hired?---That’s correct.

The van hire

32. Wei Wei Wang, a Koala employee, gave evidence in the first trial. A recording of her evidence — which had been led from her by another prosecutor — was played to the jury. Ms Wang’s evidence was that, ‘just after midnight’ on 14 June 2016, a ‘very fat’ man urgently wanted to rent a ‘car’ because he wanted to move boxes. He left because he did not have cash for the necessary bond, but then returned with money about a half hour later. The man produced a South Australian driver’s licence in the name ‘Saer Pbian’,^[5] and produced what he said was his brother’s bank card. He paid an $800 cash bond, and provided a mobile telephone number.^[6] Ms Wang debited $30 from the bankcard. After the paperwork was completed,^[7] the man got into the driver’s seat of the vehicle he had hired — a white Toyota HiAce van — and drove away.
33. Under cross-examination by the applicant’s counsel, Ms Wang said that she compared the photograph on the driver’s licence with the man, and it was a ‘match’.^[8] Significantly, having elicited this evidence, counsel for the applicant did not seek to traverse it through further cross-examination. Thus, for example, counsel did not suggest to Ms Wang that she might have been mistaken.
34. I note that, a few hours after the van was hired, at 4.45 am on 14 June 2016, surveillance police observed the hired van outside Omer’s premises where a quantity of 1,4-BD was subsequently located. Cardboard boxes were being unloaded from it and placed in a shed. Moreover, when police intercepted the HiAce in Albion at 5.30 am — Moustafa was driving and Omer was a passenger — they located a large number of plastic bottles and containers containing 1,4-BD.

The applicant’s evidence

Evidence-in-chief

35. As I have mentioned, the applicant gave evidence. He said that when a student studying civil engineering at Swinburne University in 2013, he started a cleaning company, SAA, with two friends. At the time he was living at the Coburg premises with his parents and his brother and sister.
36. The applicant said that one of his contractors, John Speziale, who got him cleaning jobs and trained and guided him, told him he could save a lot of money if he imported his own chemicals and supplied his cleaners with them. As a result, he searched the internet, and found ‘a whole range of cleaning products’, including 1,4-BD. As a ‘test run’, he purchased 800 kilograms — ‘the minimum order’ — from a Chinese exporter. For the purposes of importing the chemical, the applicant said, he registered with the National Industrial Chemicals Notification and Assessment Scheme (‘NICNAS’), and organised freight importers and customs agents. The 800 kilograms was subsequently delivered to the Coburg premises.
37. According to the applicant, the exporter told him to dilute the 1,4-BD with water (or alcohol for use on glass). He later ‘obtained some packaging to package the chemical into bottles’, the chemical contained in drums being ‘half solid, half watery’. The applicant said he was instructed by the exporter that he needed to heat it up so he could pour it out of the drums. To do so he purchased a heating element and an electric fluid pump. He then transferred the chemical into one litre plastic bottles, and packed them six per box into cardboard boxes. The cartons were then delivered to his workers.
38. The applicant said the first shipment of 1,4-BD was stored at the Coburg premises, but the second was stored at Braybrook. He imported 16 tonnes in the second shipment because ‘when you purchase in bulk it’s a lot cheaper’, and he thereby saved thousands of dollars in shipping costs. Pallets containing the chemical were delivered to the Braybrook storage facility rented by Moustafa — where the applicant was to pay half the rent — and the applicant unloaded them using a forklift.
39. In his evidence, the applicant denied being at the florist shop on 13 June 2016 with Moustafa; being involved in a kidnapping; or going to Lygon Street. He said he took his parents to the airport in the evening then went home. Later that evening he went out for ‘about an hour, give or take’. The applicant explained that Allouche had asked to borrow his van, but he told Allouche that he needed it for work. Allouche then asked the applicant to hire a van for him. The applicant said that Allouche could not do so because he only had a probationary driver’s licence, and one needed to have a full licence in order to hire a van. The applicant said that he caught a taxi to the rental premises and was told that the rental fee was $140 per day, and a bond of $800 was required. As a result, he took a taxi to Allouche’s premises, before returning to the rental premises with a driver’s licence — which had the misprint ‘Pbian’ — a debit card, the $800 bond and $200 hiring fee. Moustafa’s evidence that he had dropped the applicant at home was ‘impossible’, because he ‘never saw’ Moustafa that night. The applicant rented the van and ‘left it’ with Allouche. He assumed that Allouche had returned it when he was finished with it.
40. Apart from some minor matters, the applicant’s evidence-in-chief effectively concluded as follows:

[DEFENCE COUNSEL]: Now, globally, what do you say about the evidence of Mr Moustafa concerning the allegations against you?---He’s a liar.

Cross-examination

41. After the applicant’s evidence-in-chief concluded, the prosecutor did not immediately make the application to re-open the prosecution case, central to the case in this Court.
42. Indeed, rather than immediately making the application, the prosecutor instead had the applicant confirm his evidence that he had rented the van because Allouche had called and asked him to do so. The prosecutor also had the applicant confirm that he had initially attended the vehicle hire business, and had returned to Allouche’s premises before once more attending the vehicle hire premises. He had then rented the van and left in it. Having had the applicant confirm this evidence, the prosecutor elicited the following: first, the applicant would have gone to Allouche’s premises sometime before 12.30 am in order to obtain the bond and money for the rental; secondly, the applicant agreed that after he returned to Koala by taxi, and $30 was debited to his credit card at 12.42 am; and, thirdly, after the paperwork was completed, the applicant drove the HiAce to Allouche’s house, arriving at approximately 12.55 am.
43. It was only then that the prosecutor made the application to re-open the prosecution case.

The application to re-open the prosecution case

44. Having cross-examined the applicant to elicit the evidence referred to above, the prosecutor made ‘an application to call rebuttal evidence’, on the basis that it was ‘was always disputed’ that the applicant was the person who hired the HiAce from Koala. The applicant, the prosecutor contended, had always denied that he ‘was there’ at Koala. Ms Wang ‘was cross-examined in that vein trying to ascertain what she could recall of the man’. The proposed rebuttal evidence was relevant to the applicant’s ‘credibility’, in that the evidence of police surveillance operatives contradicts the applicant’s evidence — first given under cross-examination — as to ‘timelines’.
45. The prosecutor submitted that the applicant’s evidence-in-chief was ‘the first time that we’ve heard that Mr Obian now says he did hire this van’. It ‘has always been maintained through the various trials that have gone before, that he denies being at Mini Koala Car Rentals’. The prosecution had no notice that he had agreed that he hired the van, the prosecutor contended, and submitted: ‘In fact, quite the opposite. It’s [said] in the defence response that in fact he didn’t hire [the van] at all’. Further, the prosecutor agreed with the judge’s observations that ‘the Crown could not reasonably have expected to have to meet this defence’, and ‘in fact, it’s actually contradicted by the defence response, and there’s been no leave sought to vary from it’.
46. Sadly, the prosecutor’s submissions were wrong in material respects, since, in the course of the applicant’s second trial, defence counsel had informed the trial judge that the defence did not challenge the evidence that the applicant had hired the HiAce from Koala. Moreover, email correspondence from the applicant’s solicitor to the prosecution’s solicitor unmistakably admitted that he had hired the van. It is a lamentable fact, however, that — for reasons that have not been explained (either to the trial judge or this Court) — the applicant’s counsel did nothing to correct the misapprehension shared by the prosecutor and judge.
47. As I will discuss in greater detail when considering the third ground, immediately after the prosecutor had completed her submissions in support of the application to re-open the prosecution case, defence counsel sought, and was refused, leave to speak to the applicant. In discussion, the judge told counsel that he needed ‘to indicate ... where there’s anything prior to the close of the Crown case that would put the Crown on notice that this was going to be part of the defence’. Regrettably, however, counsel did not refer that judge to the concession made in the second trial or his instructing solicitor’s email. Counsel eventually submitted that the judge should exclude the proposed evidence under s 137 of the Evidence Act 2008, on the basis that any probative value that it possessed was outweighed by the risk of unfair prejudice.
48. In reply, the prosecutor submitted that the applicant’s evidence concerning the van’s hiring ‘is fundamental to Charge 3 and could contaminate Charges 1 and 2 if the jury accept that Mr Obian, without challenge hired the van’. She submitted that ‘it goes to a fundamental fact that is in issue’, in circumstances in which ‘the Crown has not had any notice that this was the way it was going to go’. The prosecutor said: ‘I could have called surveillance operatives if I thought that it was going this way’.

The judge’s ruling

49. At the completion of counsel’s submissions, the judge ruled on the application to re-open the prosecution case and call rebuttal evidence forthwith. It is convenient to set out the ruling (which was in two parts) in full:^[9]

Yes, well I will grant leave pursuant to s 233(2) of the [Criminal Procedure Act 2009], for the Crown to reopen its case and lead evidence from Surveillance Operative 116 and 26. Insofar as 26 is concerned, I will grant leave to lead evidence of the general background and then the observations made at

81 Harding Street, Coburg, the home of Mr Bilal Allouche between 12.12 am and 1.26 am. And in the case of Surveillance Operative 116, general background, only so much as necessary for the jury to understand the evidence. And the observations of that operative at 81 Harding Street, Coburg from 0003 to 0126.

I am satisfied that the accused gave evidence which could not reasonably have been foreseen by the prosecution having regard to the response of the accused to the summary of the prosecution opening and the response of the accused to the notice of pre-trial admissions. There was no response to the notice of pre-trial admissions, was there? No. As served on the prosecution and filed in court. And so I will allow the Crown to lead that evidence in reply.

I note that s 233(2) of the [CPA] does not provide any guidance on how that discretion is to be exercised other than that it can only obviously be exercised where the evidence in the defence case could not reasonably have been foreseen by the prosecution. And I note that the Bench Notes in the Criminal Procedure manual say this:

‘The prosecution may reopen its case if the accused gives evidence that could not reasonably have been foreseen by the prosecution having regard to the defence response to the summary of the prosecution opening and the defence response to the notice of pre-trial admissions. At common law the prosecution could only reopen its case in special or exceptional circumstances and not if the need for the evidence ought reasonably to have been foreseen.’

And it quotes Chin,^[[10]] Lawrence^[[11]] and Killick.^[[12]] And then this is the comment by the author of the Bench Notes:

‘It appears that s 233(2) of the CPA 2009 lowered the threshold for a judge to allow the prosecution to reopen its case.’

However, in my view this case falls into that exceptional situation where the evidence that is central to the Crown’s case on Charge 3 had absolutely no reasonable foresight of this evidence being led and it has available to it credible evidence which would allow a jury to find that the defence evidence was contradicted by the Crown evidence that is sought to be led in reply.

And, consequently, had I been required to exercise the discretion at common law I would have done so, and I would have done so for the reasons which will become apparent from my discussion with counsel in the course of this application which I incorporate into these reasons.

...

In the circumstances I will allow the Crown to reopen its case for this restricted purpose between the end of the cross-examination of Mr Obian and the re-examination of Mr Obian. That is a rather unusual way to go about it, but it seems to me that a trial judge has a very broad discretion to ensure the accused receives a fair trial and that power extends to the timing of allowing the Crown to reopen its case and the timing of the Crown closing its case and where that fits in with the defence case.

And so on that basis it is my view that in order to minimise the prejudice that will inevitably flow to the defence, I will require that Crown case to be opened and closed following the cross-examination of Mr Obian and before the re-examination of Mr Obian.

50. After the judge delivered the ruling, there was the following exchange with counsel:^[13]

[DEFENCE COUNSEL]: Your Honour, I will need to explain this ... to Mr Obian and I would seek leave - - -

HIS HONOUR: Yes. Yes, look, I will give you leave to explain what’s happened. You are not to go into what evidence he might give about all this.

[DEFENCE COUNSEL]: I understand, yes.

HIS HONOUR: And I would ask that that occur in the presence of your instructing solicitor.

[DEFENCE COUNSEL]: Yes.

HIS HONOUR: And I'll give you leave to simply explain to him the ruling I’ve given and what the consequences of that ruling are and how matters will proceed, but you are not to go into any question in relation to his evidence or instructions in relation to all that.

[DEFENCE COUNSEL]: Thank you, Your Honour.

HIS HONOUR: Yes. And it must occur in the presence of an instructing solicitor. ...

The applicant’s further cross-examination

51. When the prosecutor resumed her cross-examination of the applicant the next morning, among other things she questioned him about his use of the South Australian licence when hiring the HiAce; his business activities; and his relationship with Moustafa and John Speziale. The tenor of much of the cross-examination may be gleaned from the following:

[PROSECUTOR]: No, what I’m putting to you is, to use this, your business was so small and was not lucrative at all from 2013 to 2015, and then from 2015, you had this idea that you would import 1,4-Butanediol under that originally legitimate business in order to hide this drug in plain sight and get it into the country?---I disagree with that.

...

You see what I’m trying to establish here is that you in fact imported what comes to over 17,000 litres of 1,4-Butanediol for human consumption and not for as a cleaning product. You disagree?---Yes. I disagree.

And knew that you could make over $17 million if you had sold it for simply $1,000 a litre, so you knew it was extremely lucrative when you imported it, you disagree?---I disagree with that.

Defence counsel seeks to have ruling set aside

52. After the applicant’s cross-examination had concluded, counsel for the applicant unsuccessfully sought to ‘renew’ his application that the ‘Crown should not be allowed to re-open or in the alternative should not be allowed to lead the evidence of the surveillance operatives’. He relied on eight factors as follows:

So it’s firstly submitted that the evidence intended to be led by the surveillance operatives is not true rebuttal evidence. Two, the evidence is not very special or exceptional and is marginal. Three, the evidence does not disprove or rebut the evidence of Mr Obian. Four, there is still a relevant time frame in which

Mr Obian could have delivered the van to Allouche, as indeed he says he did. ... Five, allowing the Crown to reopen draws attention to the issue and gives it an importance it does not warrant. As a result it suffers undue prejudice by that fact. Six, if the evidence that has now been sought to be led had have been given during the trial it would not have been fatal to the evidence of Mr Obian. There would only merely have been a cross-examination as to the obvious hiatus in time which in fact can’t be challenged. There is no other surveillance operative available to rebut the observations or the evidence of Mr Obian and that’s not fatal. ... Seven, now it could be fatal to the interests of the accused, given an undue significance that is not warranted and that has respect to the reopening aspects. ... And finally with respect to the reopening aspect clearly the prejudicial affect outweighs any probative value of the evidence for the purposes of reopening.

Evidence of surveillance operatives

53. After defence counsel’s unsuccessful attempt to have the trial judge revoke his ruling, the prosecutor applied in the presence of the jury ‘to reopen the Crown case to call Surveillance Operative 116’. The judge granted that application ‘for the reasons ... previously announced’.
54. Surveillance Operative 116 then gave evidence. He told the jury that he was attached to the Victoria Police State Surveillance Unit, and was on duty on 13 June 2016 into the morning of 14 June 2016. At 12.03 am on 14 June 2014, he said, police checked the vicinity of Allouche’s address at 81 Harding Street, Coburg. It was noted: ‘Nil known vehicles or persons sighted’. Later, at 12.23 am, Allouche was seen in the front yard of those premises talking on a mobile telephone. At around 12.26 am, Allouche entered a car in Harding Street that travelled to a ‘7-Eleven’ store at the corner of Bell and Elizabeth Streets, Coburg, arriving at 12.27 am. Allouche then got out of the car and spoke on a mobile phone.
55. At 12.36 am, the operative said, Allouche was observed to enter the driver’s seat of the car and drive off alone, arriving at ‘Uncle Joe’s Kebabs’, 995 Sydney Road, Coburg, at 12.38 am, where he approached the counter. A few minutes later, at 12.44 am, Allouche was observed to enter the driver’s seat of the car located in the carpark of Uncle Joe’s Kebabs and drive off alone. The car arrived at 81 Harding Street at 12.45 am. Allouche then exited the vehicle and approached the front door. Surveillance ceased at 1.26 am.
56. Self-evidently, the evidence of the surveillance operative tended to cast considerable doubt on the applicant’s evidence, given in cross-examination, that he went to Allouche’s premises sometime before 12.30 am in order to obtain the bond and money for the rental; that he returned to Koala where his credit card was debited at 12.42 am; and that he drove the HiAce to Allouche’s house, arriving at approximately 12.55 am.

The applicant’s re-examination

57. After some brief (and somewhat ineffective) cross-examination of the surveillance operative, the applicant was recalled and re-examined by his counsel.
58. Among other things, the applicant said that it was only after he received the hand-up brief of evidence that he realised that Moustafa must have ‘stolen’ the 1,4-BD from the Braybrook storage unit. Referring to a debit transaction receipt, he gave evidence that at 12.42 am he was at Koala. The re-examination concluded as follows:

[DEFENCE COUNSEL]: So then – when you were being cross-examined?---Yes.

My learned friend asked you to – in fact a number of occasions, to press upon you in the timing?---Yes.

Of when you got back to – or when you say you left those premises and arrived and your contact with Mr Bilal Allouche - - - ?---I just gave an estimate based on the distance from my house to the Koala Car Rentals and I added it to the receipt. Just an estimation.

All right. And do you – and you maintain your evidence with respect to the circumstances of the hiring of that van on behalf of Mr Allouche?---Of course I do.

Grounds 1 and 2: Permitting the prosecution to re-open its case

59. In my opinion, the re-opening of the prosecution case and the adduction of the surveillance evidence would, in the jury’s eyes, have been devastating to the applicant’s credit, in circumstances in which — as counsel put it in argument in this Court — the defence case ‘rested entirely upon his believability in a practical sense’. I consider that the jury would likely have reasoned that the applicant had been telling lies in his evidence; that he had been caught out; and that the prosecution was being permitted to lead evidence to demonstrate that he had lied.
60. The application to re-open the prosecution case to call ‘rebuttal’ evidence was governed by s 233 of the Criminal Procedure Act 2009 (‘CPA’), which provides:

233 Introduction of evidence not previously disclosed

...

(2) If, after the close of the prosecution case, the accused gives evidence which could not reasonably have been foreseen by the prosecution having regard to —

(a) the response of the accused to the summary of the prosecution opening; and

(b) the response of the accused to the notice of pre-trial admissions—

as served on the prosecution and filed in court, the trial judge may allow the prosecutor to call evidence in reply.

(3) Nothing in this section limits any other power of the trial judge to allow the prosecutor to call evidence after the prosecutor has closed the prosecution case.

61. Plainly, s 233(2) confers a discretion on a trial judge to allow the prosecutor to call evidence ‘in reply’. No matter what else might be said of its parameters, it is clear that the discretion may only be exercised in a manner adverse to the accused if he or she gives evidence which could not reasonably have been foreseen having regard to, first, the accused’s response to the summary of the prosecution opening; and, secondly, the response of the accused to the notice of pre-trial admissions.
62. The need for the accused to provide the relevant responses arises from the provisions of ss 182 and 183 of the CPA. Section 182(1) requires the DPP, at least 28 days before the listed trial date, to serve on the accused and file in court a summary of the prosecution opening and a notice of pre-trial admissions. Sub-section (2) requires the summary of prosecution opening to outline the manner in which the prosecution will put the case against the accused, and the acts, facts, matters and circumstances being relied on to support a finding of guilt. By sub-section (3), the notice of pre-trial admissions must identify the statements of the witnesses whose evidence, in the opinion of the DPP, ought to be admitted as evidence without further proof, including evidence that is directed solely to formal matters
63. In turn, s 183(1) requires the accused to serve on the prosecution both a copy of the response of the accused to the summary of the prosecution opening and a copy of the response of the accused to the notice of pre-trial admissions. By sub-section (2), the response of the accused to the summary of the prosecution opening ‘must identify the acts, facts, matters and circumstances with which issue is taken and the basis on which issue is taken’; and sub-section (3) provides that the response of the accused to the notice of pre‑trial admissions must indicate what evidence, as set out in the notice of pre-trial admissions, is agreed to be admitted as evidence without further proof and what evidence is in issue and, if issue is taken, the basis on which issue is taken. Further, the effect of s 184 is that, if the accused ‘intends to depart substantially at trial’ from the filed and served responses, he or she must so inform the court and the prosecution ‘in advance of the trial’; and ‘if the court so orders, must inform the court and the other party of the details of the proposed departure’.
64. Of central importance to the resolution of the present case, by the time that the applicant gave evidence in the present trial — the fifth trial — his counsel had, in the course of the second trial, announced in open court that the applicant did not challenge the fact that he had rented the HiAce from Koala. Thus, in a break in the cross-examination of Moustafa by the applicant’s counsel in the trial on 19 November 2018 — as I have indicated, the trial was conducted by a different prosecutor before a different judge — there was the following exchange:^[14]

HER HONOUR: Just before we move from you to [co-accused’s counsel], I just want to be sure that I’m clear about what’s been put with regard to this man.

[DEFENCE COUNSEL]: Yes.

HER HONOUR: Because it’s not been put to this witness that your client did not rent that van.

MR BILLINGS: Well he wouldn’t know.

[PROSECUTOR]: He has said several times he did.

HER HONOUR: Well he said that he asked Sam to rent a van and Sam turned up in a van, and when the woman from Ms Wang from Mini Koala Rentals gave evidence, you elicited from her in cross examination that she compared the photo on the licence to the photo to the person renting the van and in her opinion they were the same and that wasn’t challenged. So I just want to be clear, is it being challenged that your client rented the van?

[DEFENCE COUNSEL]: Rented the van, no.

HER HONOUR: Okay, thank you. I just wanted to make that clear. And that’s the van that was being used on the night [of 14 June 2016]?

[DEFENCE COUNSEL]: Yes. Yes.

65. It is plain from the exchange immediately above that, in an unambiguous response to a direct inquiry by the judge the applicant’s counsel made it abundantly clear that the applicant did not challenge the allegation that he rented the van. That he had done so may have escaped the prosecutor and judge in the instant trial, but the fact remains that counsel had unequivocally declared that the applicant had rented the van used to transport 1,4-BD.
66. Moreover, it was not disputed in this Court that in the course of the second trial, the applicant’s solicitors had provided a notice of alibi (albeit unsigned), dated
    22 November 2022, to the prosecution, which asserted that the applicant ‘at all material times was at [the Coburg premises] on 13–14 June 2016 except for explained absences taking his parents to the airport, attending at a car rental establishment and returning home’. The notice provided to the prosecution instructing solicitor was forwarded by her to the police informant by email on 14 May 2019. Indeed, in an email to the prosecution instructing solicitor, dated 14 May 2019, the applicant’s solicitor had confirmed that the defence would be relying on the notice of alibi (which included his assertion of ‘attending at a car rental establishment’).
67. Of great significance, it appears that, in correspondence to the prosecution on 24 July 2019, the applicant’s solicitor had explicitly admitted that he had hired the HiAce van from Koala on 14 June 2019. Thus, on 17 June 2019, the prosecution served an amended summary of prosecution opening on the defence (although — whether by oversight or otherwise — it appears that the defence did not serve or file any formal amended defence response). More importantly, on 17 June 2019 the prosecution also served a notice of pre-trial admissions, seeking admissions which included, first, that the applicant hired the HiAce from Koala at 12.40 am on 14 June 2016 (paragraphs 37 to 41 of the notice); and, secondly, that a conversation took place between the applicant and Ms Wang in which the applicant said that he was moving boxes with the van (paragraph 42 of the notice). In an email to the prosecution instructing solicitor on
    24 July 2019, the applicant’s solicitor stated unequivocally that all paragraphs of the notice were admitted, save for paragraph 42 (relating to the conversation). Hence, it was made plain that the applicant admitted that he had hired the HiAce from Koala at the time alleged.
68. As has been seen, however, the judge dealt with the prosecution application under s 223(2) of the CPA labouring under the misapprehension that there had been no response to the notice of pre-trial admissions. But there had been. In particular, the applicant through his solicitor had admitted the very matter about which the prosecutor told the judge the prosecution had not been given notice.
69. In light of the above, it is clear that the judge exercised the discretion reposing in him under s 223 on an erroneous basis. The prosecutor had made her application to re-open the prosecution case and call ‘rebuttal evidence’ on the basis that it was ‘was always disputed’ that the applicant was the person who hired the HiAce from Koala. Quite simply, that assertion was objectively untrue. The applicant had admitted the very fact which was said to have been ‘always disputed’. And in so far as the judge accepted that it had always been disputed, he was misled.
70. Although I accept that the prosecutor must have been ignorant of, or simply overlooked, the applicant’s admission that he had hired the HiAce from Koala on 14 June 2016, I do not regard that as being particularly significant. What is crucial is that the judge was misled on the key aspect which provided the springboard for the application to re-open the prosecution case, and that his exercise of discretion — founded, as it was, on a misapprehension as to that key aspect — was thereby irredeemably infected. It is thus plain that the judge’s purported exercise of discretion miscarried.
71. In my view, had the judge been made aware that the applicant had admitted the very matter which the prosecutor told him the applicant had not, I have no doubt that the judge would have exercised his discretion differently and refused the application to re-open the prosecution case. Thus, notwithstanding the failure of defence counsel to correct the prosecutor’s and judge’s misapprehension — perhaps he too had forgotten or overlooked his client’s admissions — I consider that there has been a substantial miscarriage of justice. As I have said, the evidence led from the surveillance officer would have been devastating to the applicant’s credit, in circumstances in which his credit was crucial to his defence on all three charges. In those circumstances, it is impossible to conclude that, absent the error or irregularity in his trial, the applicant’s conviction was inevitable.
72. Given that the judge’s discretion under s 223(2) of the CPA miscarried because he exercised it on an objectively false factual basis, there is no need to consider whether the judge’s exercise of discretion also miscarried on the basis that he approached its exercise (as the applicant’s counsel put it) ‘through the prism of the common law’. Indeed, in light of my conclusions as to the manner in which the judge was led to exercise his discretion under the section in error, I consider it to be unnecessary to determine whether the discretion under s 223 is informed by considerations similar to those that apply at common law.
73. For the foregoing reasons, grounds 1 and 2 have been made out. There has been a substantial miscarriage of justice such that the applicant’s convictions cannot stand.
    I would grant leave to appeal against conviction; allow the appeal; set aside the convictions; and order a new trial.

Ground 3: The judge’s refusal to permit defence counsel to speak to the applicant

74. By his third ground, the applicant contends that the trial judge’s refusal to permit the applicant and his counsel to communicate in relation to the prosecution’s application to re-open its case amounted to a ‘fundamental irregularity’ in the trial, giving rise to a substantial miscarriage of justice.
75. After the judge ruled that the prosecution would be permitted to re-open its case, the applicant’s counsel indicated that he wished to speak to his client. As the following discussion shows, both defence and the trial judge seem to have thought that counsel required the trial judge’s permission to speak to the applicant, then under cross-examination. Perhaps significantly, as the extracted passage also demonstrates, counsel was reluctant to inform the judge of the nature of the ‘instructions’ he wished to obtain from his client:

[DEFENCE COUNSEL]: The usual rule with respect to speaking to one’s client in the course of cross-examination, this has now arisen, I need to get some instructions.

[PROSECUTOR]: If my friend wants to just — sorry.

HIS HONOUR: No. Well, why do you need instructions, [defence counsel]? We’re dealing with a matter of law. You have your instructions about the factual substratum we’re dealing with. What is it that you need to get instructions about?

[DEFENCE COUNSEL]: Well, - - -

HIS HONOUR: You don’t need to be instructed to resist this application.

[DEFENCE COUNSEL]: Not as a matter of - - -

HIS HONOUR: That’s part of your responsibility as counsel.

[DEFENCE COUNSEL]: Yes.

HIS HONOUR: You don’t need instructions from your client as to what the legal position is with regards to this. The facts are already out; we know what they are. Why do you need instructions?

[DEFENCE COUNSEL]: I’m not asking for instructions with respect to the legal submissions, but - - -

HIS HONOUR: What are you wanting to take instructions in regard to?

[DEFENCE COUNSEL]: Well, I don’t want to tell Your Honour.

HIS HONOUR: Well, I’m not going to give you that leave.

[DEFENCE COUNSEL]: All right.

HIS HONOUR: If you’re not going to tell me why you want to have an ability to speak with your client during cross-examination, if you want to keep that powder dry, then you don’t get the leave.

[DEFENCE COUNSEL]: All right. Yes.

76. I am not sure what counsel meant when he referred to the ‘usual rule’. It is clear, however, that he thought the ‘usual rule’ constrained him to seek the trial judge’s permission to speak to his client. (As will become clear, I do not consider there to be such a rule.) It is also clear that the judge was of the view that he had the power to prevent counsel from doing so. And it is clear, too, that counsel considered himself bound by the judge’s purported refusal of leave, and did not speak to the applicant in the period that intervened until the prosecution interrupted the applicant’s cross-examination by leading further evidence.
77. Shortly after he forbade defence counsel to speak to his client, the judge delivered the ruling permitting the prosecution to re-open its case. As I have mentioned, having ruled, the judge then purported to give leave to defence counsel to speak to his client to explain the ruling, but insisted that the explanation be given in the presence of counsel’s instructing solicitor. Counsel was forbidden, however, to discuss the evidence, as the passage set out above makes clear.^[15]
78. I consider what occurred to be somewhat novel. So far as I am aware, there has never been any ethical or substantive rule in this State forbidding counsel from speaking to a client or other witness under cross-examination before cross-examination is complete. In my experience, the practice in this State has been that, on the relatively rare occasions in the course of a criminal trial counsel has perceived the need to confer with or speak to the accused or a witness under cross-examination, he or she would inform the cross-examiner and the judge (in open court) of his or her intention to do so, disclosing (at least in general terms) the reason for the need. It has never been a widely held view, however, that there was any need for counsel to seek the judge’s permission, let alone that the judge could forbid counsel from speaking to his or her client or other witness. Of course, on the infrequent occasions that it occurred, great caution has been exercised by counsel when speaking to the person under cross-examination — principally to avoid any perception that the witness’s evidence had been unfairly or improperly influenced — and counsel’s instructing solicitor was always present.
79. For the purposes of the current discussion, it is necessary to distinguish two things: first, any ethical rule which guides counsel in situations such as that under consideration; and, secondly, the powers that a trial judge in a criminal trial possesses to forbid an advocate from speaking to his client (or other witness) in the midst of uncompleted cross-examination.
80. With respect to ethical considerations, prior to the promulgation of codified professional rules for barristers, there was no rule in Victoria which forbade counsel from speaking to a witness under cross-examination (albeit that counsel was required to use discretion and take great care not to influence the witness’s evidence). In his work on the professional conduct of barristers, Sir Gregory Gowans described the position as follows:^[16]

Speaking to Witness under Cross-Examination

There is no rule which forbids counsel to speak to a witness under cross-examination, but counsel must use his discretion and take great care not to influence the witness’s evidence.^[17]

81. Subsequently, the situation was formalised by rule 46 of the Victorian Bar Incorporated Practice Rules, which was in the same terms as the present rule 73 of the Legal Profession Uniform Conduct (Barristers) Rules 2015.^[18] Rule 73 provides:

A barrister must not confer with any witness including a party or client called by the barrister on any matter related to the proceedings while that witness remains under cross-examination, unless:

(a) the cross-examiner has consented beforehand to the barrister doing so, or

(b) the barrister:

(i) believes on reasonable grounds that special circumstances (including the need for instructions on a proposed compromise) require such a conference,

(ii) has, if possible, informed the cross-examiner beforehand of the barrister’s intention to do so, and

(iii) otherwise does inform the cross-examiner as soon as possible of the barrister having done so.

82. By its terms, rule 73 permits a barrister to ‘confer’ with his or her client (or a witness called by the barrister) ‘on any matter related to the proceedings’ while the client (or witness) is under cross-examination, if, first, the cross-examiner has consented beforehand to the barrister doing so; or, secondly, the barrister believes ‘on reasonable grounds’ that ‘special circumstances ... require such a conference’, and the barrister has informed the cross-examiner beforehand of the barrister’s intention to do so, or informs the cross-examiner as soon as possible of the barrister having done so. Significantly, however, the rule does not contemplate either that the cross-examiner’s antecedent refusal of consent, or, for that matter, a judge’s refusal of permission, imposes a prohibition on counsel from conferring with a client or witness under cross-examination. Rather, the rule sets out the prudent steps that a barrister should follow if doing so. It is plain, therefore, that there was no ethical constraint which would have prevented the applicant’s trial counsel from speaking to him prior to the prosecutor’s cross-examination being completed.
83. A more difficult question is whether the trial judge had power to forbid the applicant’s counsel from speaking to him. That is an issue upon which there is scant authority.
84. Turning to such authority as there is, in International Relief and Development Inc v Ladu,^[19] Kenny J had before her proceedings for the enforcement of an arbitral award. In the course of the proceedings, counsel for the respondent sought leave to confer with his client after the respondent’s cross-examination by counsel for the applicant. Apparently, counsel wished to speak to his client in relation to several credit matters put in cross-examination, for the purposes of conducting re-examination. It is apparent that Kenny J — and counsel — considered that leave was required. Among other things, Kenny J referred to rule 46 of the Practice Rules of the Victorian Bar, and observed:^[20]

Courts in this country have regularly proceeded on the assumption that they have power to grant the leave of the kind sought by counsel for Mr Ladu, whether as an incident of the power to control their own proceedings or otherwise. The approaches of judges to applications for leave to confer have apparently varied over time. Some judges have granted leave almost as a matter of course; others have not done so: see, for example Sheppard [Communications with Witnesses Before and During Their Evidence, (1987) 3 Australian Bar Review 28] at 37–38. What is more, irrespective of the local Bar Rules, the Evidence Act 1995 (Cth) (‘the Evidence Act’) confers power to control the presence and behaviour of others (including barristers) in connection with the questioning of witnesses. Section 26(d) of the Evidence Act specifically provides that a court ‘may make such orders as it considers just in relation to ... the presence and behaviour of any person in connection with the questioning of witnesses’. The fact that in the course of the hearing the Court directed Mr Ladu as to his communications whilst under oath underscores the desirability of his counsel’s obtaining leave to confer.

Broadly speaking, in the past, the standard has been the general ‘justice of the case’. Today, s 192 of the Evidence Act provides an organising framework for considering leave issues. ...

85. In Abbott,^[21] in the course of a trial for sexual offences, it was alleged that, during a break in the cross-examination of a complainant, the Crown’s instructing solicitor said to the complainant’s father: ‘When you go home tonight and when you speak to [the complainant] make sure you tell her to say, “I don’t remember”.’ On appeal, a ground contended that the trial judge had erred in refusing a defence application to discharge the jury on the basis of impermissible communications by the prosecution solicitor with the complainant under cross-examination. In dismissing the appeal on this ground, the Court held that it had been open to the judge to be satisfied that there had been no undue interference with the witness, and therefore refuse to discharge the jury. Basten JA relevantly observed:^[22]

There was no consideration in the course of the hearing as to the nature, scope or purpose of the practice whereby witnesses under cross-examination are required not to discuss the case, or their evidence, with any person. With respect to legal representatives, the practice is set out in the Bar rules in most Australian jurisdictions, derived from British practice. The Victorian rules and their precursors were discussed by Kenny J in International Relief and Development Inc v Ladu.^[23] That discussion occurred in the context of an application by counsel for the respondent for leave to confer with his client before embarking on re-examination. However, the legal obligation to seek leave appears to have been treated as a matter of professional practice and the source of the court’s power to refuse or restrict leave was not examined. The limitation on the power of a legal representative to speak to a witness who has commenced giving evidence has been presumed to arise only upon the commencement of cross-examination.^[24]

The father gave evidence of his brief conversation with the prosecution solicitor and his remarks to [the complainant]. ...

However, given the absence of any submission concerning the basis of the ‘rule’, its scope, or its purpose, by reference to its source pursuant, for example, to s 11 or s 23 of the Evidence Act, all that need be asked is whether the communications with the parents (and, through them, [the complainant] herself) caused any practical unfairness to the applicant. There was no basis identified to satisfy the court that they did.

86. Potier^[25] was a case in which a prosecution witness in a trial for solicitation to murder had commenced to give evidence, and, before her evidence-in-chief had been completed (and prior to cross-examination commencing), had contacted the prosecutor and his instructing solicitor to alert them to some further information that she wished to give in evidence (which led to a further statement being taken from her). On appeal against conviction, the unrepresented appellant complained about what had occurred. Ward JA (with whom Simpson and Wilson JJ agreed) said:^[26]

Mr Potier’s complaint reveals his lack of familiarity with the relevant Bar Rules. What is precluded under the Bar Rules is conferring with a witness while the witness is under cross-examination. [The witness’s] cross-examination had not yet commenced at the time that she contacted the Crown prosecutor to advise that she had further information about which she wanted to give evidence.

In International Relief and Development Inc v Ladu [2013] FCA 1216 the practice in this regard in Victoria and other Australian jurisdictions was considered in the context of an application given for leave to confer with a witness before the commencement of re-examination. Kenny J referred to the relevant Victorian Bar Rules which precluded a barrister from conferring with a witness while the witness was under cross-examination, even if the witness is a client or party to the proceedings, unless one of the two exceptions to the rule applied. Her Honour considered that there might be a question as to what extent if at all that rule applied where the cross-examination of the relevant witness had apparently concluded and re-examination was about to commence but did not consider it necessary to say anything further about that subsidiary question.

Her Honour noted that there had been a practice in at least some Commonwealth jurisdictions that Counsel would not speak with his or her own witness while that witness was under oath (or, perhaps, only under cross-examination) at least without leave of the Court or the consent of the opposing party (or perhaps, without informing either the Court or the opposing party), referring to an article by a former Federal Court judge in the 1997 Australian Bar Review (Sheppard ‘Communications With Witnesses Before and During Their Evidence’ (1987)

3 Australian Bar Review 28 at 36-38).

The New South Wales Bar Rule at the relevant time refer to speaking to the witness while the witness is in under cross-examination. This had not occurred by the relevant stage. Mr Potier’s complaint has no substance.

87. It may be accepted that, as a general rule, a court has the power to control its own process and proceedings according to the demands of justice in a particular case.^[27] Assuming, without deciding, that the power is broad enough to permit a court to forbid counsel from speaking to his or her client (or witness) while under cross-examination, I consider that the occasion for the exercise of the power in that manner would be exceedingly rare. As to that, very great trust inheres between the Bench and Bar in this State (as, I am sure, it does in other jurisdictions). Counsel know that their primary duty is to the administration of justice. And courts expect that advocates will maintain high standards of professional conduct, and will act with fairness and diligence. In those circumstances, it would ordinarily be expected that a barrister who speaks to a client or witness whose cross-examination is still underway will do so in a manner that ensures that the interests of justice are not compromised, by avoiding doing or saying anything that might improperly influence or mould evidence yet to be given.
88. The judge gave no reasons for forbidding the applicant’s counsel from speaking to him. And, so far as I can see, there was no good reason. If the judge thought that there was a risk that the integrity of the trial might be compromised by counsel communicating with his client, or thought that there was a risk that the applicant might be coached or his evidence otherwise improperly influenced, the judge did not say so. Moreover, in my view, there was nothing in the prevailing circumstances that might properly have permitted the formation of such views.
89. Given that there was no basis upon which the judge could in the circumstances have forbidden the applicant’s counsel from speaking to him, there was ‘an error or an irregularity in, or in relation to, the trial’.^[28] I am not persuaded, however, that the error or irregularity resulted in a substantial miscarriage of justice. In particular, I reject the contention that the irregularity constituted a serious departure from the prescribed processes of a trial,^[29] in that — as it was put by counsel — it denied the applicant ‘the right to participate in his trial’.
90. For the sake of completeness, I would observe that none of the provisions of the Evidence Act 2008 governed the situation. As to that, s 11 recognises that the power of a court to control the conduct of a proceeding is not affected by the Act (except so far as this Act provides otherwise expressly or by necessary intendment). Moreover, s 26(d) is concerned with the manner in which witnesses are questioned. And s 192 is concerned only with ‘leave, permission or direction’ required by the Act.

Conclusion

91. With respect to conviction, I would make the orders referred to above.^[30]
92. Given my conclusions concerning conviction, it is unnecessary to consider the application for leave to appeal against sentence.

NIALL JA:

93. I have had the benefit of reading the reasons for judgment of Priest JA and of Macaulay JA. I have come to the same conclusion as Macaulay JA that the applications for leave to appeal against conviction and against sentence must be refused. Subject to one matter concerning the construction of s 233(2) of the CPA which is not material to the result, I agree with the reasons of Macaulay JA. In these reasons, I wish only to address the construction of s 233(2) and make some additional observations in relation to grounds 1 and 2.

Construction of s 233(2)

94. Section 233(2) provides that, in a criminal trial, the court may allow the prosecutor to call evidence in reply to the evidence of the accused. The power is available where the accused gives evidence that could not reasonably have been foreseen by the prosecutor.
95. Whether or not the evidence could reasonably have been foreseen is a matter for the judge to determine. The section also provides that the finding, on which the existence of the power depends, is to be made having regard to paras (a) and (b).
96. A question arises as to whether in arriving at the state of satisfaction or persuasion on this critical question, the judge is confined to those documents. With respect to those who come to a different view, I am unable to agree that the section is so confined.
97. I reach that conclusion having regard to the text of the provision, the nature of the task, the repository of the power and the incongruous consequence it produces.
98. First, the provision does not state that the considerations are exhaustive. Further, s 233(3), which provides that nothing in the section limits any other power of the trial judge to allow the prosecutor to call evidence after the prosecutor has closed the prosecution case, does not suggest that the provision is to have a narrowing or limiting operation.
99. Second, like the corresponding common law rule or practice,^[31] the power of a trial judge to permit a prosecutor to call evidence in reply is based on notions of fairness. The starting point for its operation is the requirement that the prosecution bring forward all of its case in proof of the charge and is not permitted to split its case. That rule is informed by fundamental notions of fairness to an accused that arise from the accusatorial system and to avoid the prejudice that would be occasioned if the jury were to unfairly give the last evidence greater weight.
100. At common law, this usual sequence may, in exceptional cases,^[32] be altered where the accused gives evidence that cannot reasonably be foreseen by the prosecution. In those cases there are countervailing interests of fairness owed to the prosecution that may justify a departure from the usual rule. Section 233(2) provides a statutory foundation for a cognate power to allow the prosecution to call rebuttal evidence.
101. Given the fundamental nature of the power and its importance to the trial process, it is unlikely that the critical condition on which the power rests could be determined on a limited factual basis that may not represent the true position known to the parties.
102. That is particularly so given the nature of the documents referred to in paras (a) and (b) and the vagaries of a trial. In Alfarsi (a pseudonym) v The Queen^[33] this Court considered the nature of the obligation on an accused to respond to a prosecution opening. The Court said:^[34]

Section 183(2) of the CPA requires the defence response to identify the acts, facts, matters and circumstances with which issue is taken and the basis on which issue is taken. As a matter of ordinary language, to ‘identify’ something is to point it out or to pinpoint it. Again, as a matter of ordinary language, ‘issue is taken’ with an act, fact, matter or circumstance if there is disagreement with it. And the ‘basis’ upon which issue is taken is the reason for disagreement. Thus, s 183(2) requires no more of an accused person than to point out those acts, facts, matters and circumstances in the prosecution opening with which he or she disagrees, and to provide a reason for such disagreement. But the provision does not — expressly or impliedly — require an accused person taking issue with an act, fact, matter or circumstance to make any positive statements of fact in relation to it.

103. The document filed under s 183 may not be very informative. Further, it is virtually inevitable that, as the prosecution case progresses, likely avenues of defence or attack will emerge. The course of the trial will often provide a much clearer picture of any evidence that the accused might give in the evidence that he or she chooses to give.
104. The factors that are relevant to a power to permit the prosecution to call reply evidence are manifold. It would be incongruous that the power may be enlivened on the basis that the evidence was not reasonably foreseeable when it may be obvious as to what the accused was likely to say. True it is that this additional information might find its way into the exercise of the discretion but it would be odd for the power to be enlivened on an erroneous or at least meaningless factual premise. I do not think that it would have been intended to confer a power on the court to allow the prosecution to adduce reply evidence in response to evidence of the accused that was in fact reasonably foreseeable. If it were not intended to confer such a power then there would appear to be no reason for that issue to be left as a discretionary factor rather than a qualifying condition. That is particularly so where s 233(2) plainly imposes a qualifying condition based on whether the evidence of the accused was reasonably foreseeable.
105. Third, it is important that the repository of the power is a court and is conferred to advance the interests of justice and the conduct of a fair trial. Constraints on what a court is entitled to take into account should not be lightly inferred.
106. It follows that, in order for the s 233(2) power to be available, the court must be satisfied that the evidence of the accused was not reasonably foreseeable. That question must be answered having regard to the defence response and admitted facts and to any other matters that may be relevant to that factual question.
107. In his reasons Macaulay JA explains why the critical evidence to which the prosecution wished to reply was not reasonably foreseeable. I agree. I would only add the following by way of my own emphasis.
108. The gravamen of the applicant’s evidence was that he hired the van at the request of Allouche and drove it to Allouche’s house and was unaware of what happened after he dropped the van off. The first part of that narrative — that the applicant hired the van — was largely irrelevant to the application to reopen. In my opinion, there was no misunderstanding on the part of the judge about the nature of the reply evidence that the prosecution sought to adduce and no error in concluding that this evidence was not reasonably foreseeable.
109. First, it is inconceivable that the prosecution would have been permitted to call rebuttal evidence merely to establish that the applicant hired the van. That fact was a central pillar of the prosecution case on charge 3. The prosecution called Ms Wang of Mini Koala Car Rental to establish the fact.
110. Second, the proposed reply evidence did not prove that the applicant hired the van. It was not directed to that issue. The evidence was that the van was not seen at Allouche’s house during a certain timeframe and indirectly rebutted the applicant’s evidence about what he did with the van after he had hired it. It is true that the prosecutor originally sought to lead the evidence on the basis that it was relevant to the credit of the applicant but the judge, correctly, understood that the evidence went to a fact in issue.
111. Third, even if, as I consider to be the case, it was reasonably foreseeable that the applicant would, in his evidence, admit to hiring the van that did not mean that his critical evidence, to which the reply evidence was directed, was foreseeable. In the event that the applicant gave evidence it was reasonably foreseeable that he would admit to hiring the van. The prosecution evidence on this aspect was relatively strong. The applicant’s pre-trial responses had been equivocal and in an earlier trial his counsel had told the judge that hiring the van would not be disputed. In this sense the case bears some similarities with Killick in which foreshadowing an alibi at an earlier trial meant that in the subsequent trial, alibi evidence was reasonably foreseeable.
112. It was a realistic prospect that the applicant would seek to confess and avoid. But how he would do so was not foreshadowed nor easily foreseen. The evidence that the applicant hired the van for Allouche was entirely new and could not reasonably have been anticipated. It was, in effect, an affirmative defence that had not emerged in any pre-trial exchange, any filed document or from the way the applicant’s case was conducted in any of the trials.
113. The applicant has failed to persuade me that the judge determined the application on a false basis. Indeed, I am well satisfied that the judge appreciated the importance and the novelty of the Allouche connection, and proceeded on a correct basis. The prosecutor’s submissions raised a false flag but the judge was not distracted from his task, was alive

to the crucial issue to which the reply evidence responded and there was no error or irregularity that affected the ruling made by the judge.

114. The orders proposed by Macaulay JA should be made.

MACAULAY JA:

Introduction

35. 1,4-BD is a chemical solvent. It has a number of industrial uses. One is that, when diluted with water, it may be used as a domestic or commercial cleaning product. Aside from industrial uses, when flavoured (to disguise its unpleasant taste), it may also be ingested orally in which case the human body will naturally metabolise it to become gamma-hydroxybutyrate, more commonly known as GHB. GHB is colloquially known as ‘the party drug’ or ‘the date rape drug’. When consumed, it can induce euphoria and have a sedating effect. For that reason, 1,4-BD is a drug of dependence within the meaning of the Drugs, Poisons, Controlled Substances Act 1981 (‘DPCSA’) except if and when used for a lawful industrial purpose.^[35]
116. Between about 2:00 am and 5:00 am on 14 June 2016 a group of men moved boxes and barrels containing 1,4-BD from various storage locations around Melbourne to a different storage location. Police apprehended some of the men and seized approximately 4,283 kg of undiluted 1,4-BD in boxes and steel barrels. No innocent explanation was suggested for the movement of the drug on that morning.
117. In the previous July and November of 2015, two shipments of 1,4-BD — in total, more than 16,800 litres (16.8 tonnes)^[36] — were imported from China to Australia by SAA Cleaning Company Pty Ltd (‘SAA Cleaning’). The 4,283 kg of 1,4-BD seized on 14 June 2016 appeared to be traceable to the 2015 shipments.
118. Arising from these events, the applicant (also referred to as ‘Obian’) was charged with two offences relating to the importation of the 1,4-BD and a third relating to its movement on 14 June 2016. In the successful prosecution of the applicant on the three charges of trafficking a drug of dependence (namely, 1,4-BD) in not less than a commercial quantity,^[37] there was never any dispute that the applicant had arranged the importation of the two shipments of the chemical in 2015 (charges 1 and 2). He was the director and owner of SAA Cleaning, an industrial cleaning business, and he claimed that the 1,4-BD was imported for lawful use as an industrial cleaning product. He also claimed to have had nothing to do with the movement of 4,283 kg of 1,4-BD around Melbourne in the early hours of 14 June 2016 (charge 3).
119. A component of the prosecution case against the applicant on all three charges was to link him to the incriminating movement of the boxes and barrels on the morning of 14 June 2016. The applicant was not among the men apprehended that morning although the prosecution case was that he was physically present during that process but managed to evade police. One aspect of the proof of his involvement was to establish that he had hired a white Toyota HiAce Van (‘the van’) from Mini Koala Car Rental in Bell Street, Preston between midnight and 1:00 am on 14 June 2016. The van was used in the movement of the boxes and barrels of 1,4-BD very soon afterwards.
120. In the course of his trial, the applicant gave evidence about the hire of the van and events occurring in the course of and shortly after that hire. After a contested application by the prosecution, the trial judge gave the prosecution leave to re-open its case to call evidence from a police surveillance operative to rebut aspects of the applicant’s evidence on that subject. After being convicted of all three charges, the applicant applied for leave to appeal his convictions. Each of his proposed grounds of appeal, in one way or another, takes issue with the leave granted to the prosecution to reopen its case and the process of obtaining it.
121. The applicant’s trial took place before Judge Trapnell in the County Court at Melbourne. Jury verdicts were delivered on 30 July 2019. Following a plea hearing on 9 October 2019, the applicant was sentenced on 24 September 2020 as follows:

122. Should he fail in having his convictions overturned, the applicant seeks leave to appeal the sentences imposed.
123. Because both applications were filed well after the 28 days prescribed by the CPA, the applicant has also sought an extension of time pursuant to s 313 of the CPA in which to file each application.
124. For the reasons that follow, I would extend time to file the application for leave to appeal the convictions, but refuse leave to appeal. I would decline to grant the extension of time to file the application for leave to appeal the sentences.

Application for leave to appeal against conviction

125. Before setting out the full terms of the proposed grounds of appeal on conviction, it is useful to provide a little further context in which the decision to allow the prosecution to re-open its case arose.

Charges 1 and 2: shipment 1 (13 July 2015) and shipment 2 (27 and 30 November 2015)

126. On 11 May 2015, the applicant’s cleaning business — SAA Cleaning — placed an order with Tai’an Health Chemical Company Ltd, located in China, for 800 litres of 1,4-BD. On 13 July 2015, the shipment (packaged in four barrels) arrived in Australia. On that same day the goods were delivered to Glenora Avenue, Coburg, where the applicant signed for them (charge 1).
127. On 29 September 2015, SAA Cleaning ordered a further 16,000 litres of 1,4-BD. On 27 November 2015, the shipment arrived in Australia and the goods, packaged in 80 barrels, were delivered to Neutral Warehouse. The applicant collected the goods in four trips, with one collection occurring on 27 November, and the remaining three collections occurring on 30 November 2015 (charge 2).
128. On 30 November 2015, the applicant ordered 5,712 one-litre bottles and 6,000 caps. On 11 December the applicant ordered 2,030 cardboard boxes. The boxes and bottles were used to store the 1,4-BD after being decanted from the barrels.
129. The events in relation to charges 1 and 2 were not in dispute. The issue in contention was the intended use of the 1,4-BD. At least in part, the prosecution relied upon proof of the applicant’s involvement in the movement of the 1,4-BD on 14 June 2016 to supply inferential evidence of his intention with respect to the two imported consignments in 2015.

Charge 3: movement of 1,4-BD (14 June 2016)

130. The prosecution alleged that in the early hours of 14 June 2016, the applicant, with others, was involved in the movement of boxes and barrels containing 1,4-BD in various locations around Melbourne. The movement was, in part, facilitated by the van which had been rented from Mini Koala Car Rental. Police seized 1,160 kg of 1,4-BD from the van, 497 kg of 1,4-BD from a storage facility and 2,626 kg of 1,4-BD contained in numerous one-litre bottles in cardboard boxes and a barrel.
131. The applicant denied any involvement in the acts of possession involved in moving the boxes and barrels the subject of charge 3.
132. The applicant is 190 cm tall and, at the time of these events, weighed nearly 180 kg. On his own description, he was ‘fat’. The significance of his conspicuous appearance will become apparent.
133. The prosecution case in relation to charge 3 included, inter alia:

     (a) A transcript of an intercepted telephone conversation between Moustafa and Allouche at 11:21 pm on 13 June 2016 (‘the 11:21 pm telephone call’) in which Moustafa asked Allouche if Allouche could assist in obtaining a van or truck urgently;

     (b) Evidence from Moustafa that he was with Obian when he made that call to Allouche, that soon afterwards he and Obian attended Allouche’s house to be told by Allouche that he could not assist, and that Moustafa then drove Obian to Obian’s house from which Obian departed to go and hire a van;

     (c) Evidence from Ms Wang, of Mini Koala Car Rental, that:

     (i) a very fat man needed an urgent rental car just after midnight on 14 June 2016 to ‘move a box’;

     (ii) because he only had a debit card, not a credit card, Wang told him that she would require a cash bond of $800;

     (iii) the man returned with the bond money, produced a licence in the name of ‘Saer Pbian’,^[38] and gave the telephone number 0468 952 985 (a number registered to the applicant);

     (iv) Wang charged $30 to a debit card in the name of Saer Obian;

     (v) Wang then provided the keys to a white Toyota HiAce van with number plate YZP 805 to the man;

     (d) The white van YZP 805 was seen at one of the relevant premises later that evening at 4:45 am, with cardboard boxes being unloaded from the van and placed into a shed.

134. During his evidence-in-chief, the applicant gave evidence that:

     (a) he was the person who rented the van;

     (b) he had provided Wang with a South Australian driver’s licence;

     (c) he had hired the van because Allouche had called and requested that he do so;

     (d) he initially attended the car hire premises, attended at Allouche’s house to obtain the cash for the bond, returned to the car hire premises, rented the van and left in the van; and

     (e) having delivered the van to Allouche, he did not know what happened to the vehicle until he received the prosecution’s brief of evidence in the proceeding.

135. During cross-examination by the prosecutor, the applicant went on to say that:

     (a) he would have gone to Allouche’s house sometime before 12:30 am to get the bond money for the rental;

     (b) he agreed that after he returned to Mini Koala (by taxi), $30 was debited from his debit card at 12:42 am; and

     (c) after the paperwork had been filled out, he drove the van with numberplate YZP 805 to Allouche’s house, arriving at approximately 12:55 am.

Leave given to re-open the Crown case

136. Shortly after this cross-examination, the prosecutor made an application to re-open the prosecution case pursuant to s 233(2) of the CPA. The prosecutor sought to lead evidence from surveillance operative witnesses who were watching Allouche and Allouche’s house from shortly after midnight. They would say that at no time between 12:03 am and 1:26 am on 14 June was there any observation of the applicant or the van appearing at Allouche’s house.
137. The prosecutor sought to lead the evidence, at least in part, as an attack on the applicant’s credibility. The prosecutor relied on the 11:21 pm telephone call, the 12:42 am debit card transaction and the estimated travel times from point to point to lock in the ‘timeframes’ given by the applicant for his asserted visits to Allouche’s house. This indicated that the applicant’s claim to have attended Allouche’s house within those timeframes was inconsistent with the evidence available from the surveillance operatives.
138. Until the applicant gave evidence that he had hired the van, and had attended upon and delivered the van to Allouche at the times stated, the prosecutor submitted that it was not apparent that the evidence of the surveillance operatives watching Allouche that morning was relevant to any fact in issue at the trial. Allouche was not one of the men arrested by police in connection with the movement of the 1,4-BD on 14 June. Until then, the prosecution had no reason to suspect that the applicant would say that he hired the van at the instigation of Allouche.
139. Section 233(2) of the CPA provides a discretion to a judge to allow the prosecutor to re-open the Crown case where ‘the accused gives evidence which could not reasonably have been foreseen by the prosecution’:

Introduction of evidence not previously disclosed

...

(2) If, after the close of the prosecution case, the accused gives evidence which could not reasonably have been foreseen by the prosecution having regard to—

(a) the response of the accused to the summary of the prosecution opening; and

(b) the response of the accused to the notice of pre-trial admissions—

as served on the prosecution and filed in court, the trial judge may allow the prosecutor to call evidence in reply.

140. In making her application to lead further evidence after the close of the Crown case, the prosecutor variously submitted, amongst other things, that:

     (a) it ‘was always disputed [by the applicant] that Mr Obian was the person who hired YZP 805 from Mini Koala Car Rentals’;

     (b) ‘there has always been a denial that it was Mr Obian that was there at Mini Koala ... and that has not changed’;

     (c) ‘There hasn’t been a response to any subsequent versions of the prosecution opening’;

     (d) the accused’s evidence-in-chief was ‘the first time that the Crown had heard that Mr Obian now says he did hire this van’;

     (e) the ‘defence response [was], and has always been maintained through the various trials that have gone before, that he denies being at Mini Koala Car Rentals ...’;

     (f) ‘It’s told in the defence response that in fact he didn’t hire it at all’; and

     (g) the accused’s evidence is ‘actually contradicted by the defence response, and there’s been no leave sought to vary it’.

141. During the course of the application, the judge was not informed — either by the prosecutor or by defence counsel — of informal communications between the parties, and previous concessions made by the defence at an earlier trial which had been discontinued, in which the defence position had fluctuated between disputing, not admitting and admitting that the applicant had hired the van on 14 June 2016. Further detail concerning these shifting positions is described below.
142. Ultimately, his Honour accepted that the applicant had given evidence that the prosecution could not reasonably have foreseen. He granted the Crown leave to adduce evidence in reply from the surveillance operatives of observations of Allouche between midnight and 1:26 am, as those events had become critical to the case on charge 3. His Honour determined that the evidence would be called between the end of the applicant’s cross-examination and re-examination.
143. The applicant contends on this application that the evidence could reasonably have been foreseen.

Relevant procedural history

144. It is clear that careful attention must be paid to what material was available to the Crown, prior to the conclusion of the prosecution case, from which it might have been reasonably foreseen that the applicant would say that (1) he hired the van and (2) he did so for Allouche, delivered the van to Allouche, and then went home. To understand that material, it is necessary to trace through the defence position on the hire and use of the van over the course of the whole proceeding.
145. Before the trial concluding with the jury’s verdict on 30 July 2019, there had been four previous trials each of which was discontinued for different reasons. The five trials were as follows:

     (a) Between 7 November and 9 November 2018 before Judge Fox, prosecuted by Mr Walmsley QC (‘the first trial’);

     (b) Between 12 November and 23 November 2018 before Judge Fox, prosecuted by Mr Walmsley QC (‘the second trial’);

     (c) Between 6 August and 13 August 2019 before Judge Trapnell, prosecuted by Ms Borg and Ms Fallar (‘the third trial’);

     (d) Between 14 August and 16 August 2019 before Judge Trapnell, prosecuted by Ms Borg and Ms Fallar (‘the fourth trial’); and

     (e) Between 19 August and 24 September 2019 before Judge Trapnell, prosecuted by Ms Borg and Ms Fallar (‘the trial’).

146. Mr P Billings of counsel represented the applicant at each trial. Most of the witness evidence given at the trial involved replaying audio recordings of evidence that had been given at earlier trials.
147. Over the course of the five trials there was continuing conjecture as to whether Obian hired the van from Mini Koala Car Rental, with the defence adopting different stances on that question.
148. The defence response filed on 8 February 2018 disputed that Obian rented the van. This position was revised by 5 November 2018, two days prior to the commencement of the first trial, wherein the defence did not admit that Obian rented the van. The first trial was aborted after two days and the jury discharged.
149. During the second trial, conducted on the basis that Obian did not admit he rented the van, the prosecutor called Wang to give evidence. As summarised above, Wang described in her evidence a man of Obian’s physical description attending the Mini Koala Car Rental premises after midnight on 14 June 2016 needing a car urgently to move a box. The name on the driver’s licence provided to Wang was ‘Saer Pbian’. Wang was then briefly cross-examined by defence counsel.
150. In answer to a direct question put to him by the trial judge five days later, defence counsel announced that he did not challenge the allegation that the applicant rented the van from Mini Koala Car Rental. Three days later, defence counsel drafted a notice of alibi. It was drafted after the defence called the applicant’s brother who gave evidence that amounted to an alibi for the applicant in respect of the events concerning charge 3. No notice of that alibi evidence had been given.^[39] The particulars of that notice alleged that the accused was at his home address at all material times except for ‘explained absences taking his parents to the airport, attending a car rental establishment and returning home’. The notice of alibi was not signed.
151. The second trial was abandoned on 23 November 2018 and the jury discharged without verdict.
152. In preparation for the third trial, Obian’s solicitor emailed the Office of Public Prosecutions (‘OPP’) confirming that Obian would be relying on the unsigned notice of alibi.
153. One month later, on 17 June 2019, the prosecution served a final summary of prosecution opening. Relevantly, it contained the same allegations with respect to the applicant hiring the van and participating in the moving of the boxes of 1,4-BD as in previous versions.
154. On the same day, the prosecution also filed and served a 52-paragraph notice of pre-trial admissions. Paragraphs 37–42 of that notice concerned the rental of the van. Paragraph 37 stated:

At 12:40am on 14 June 2016, OBIAN attended MINI KOALA CAR RENTALS situated at 361 Bell Street, Preston. OBIAN made enquiries to rent a van for two (2) days at a cost of $140.00 per day.

Paragraph 42 read:

OBIAN advised WANG that he was moving boxes with the van. He then left, seeming in a hurry.

155. Needless to say, it was not suggested in either the final summary of prosecution opening nor the notice of pre-trial admission that the van was delivered to Allouche or that Allouche was involved in moving the boxes.
156. Initially, the applicant’s solicitor, Mr Will May, emailed the OPP to say that he was waiting on a conference with defence counsel to settle the admissions. After being pressed for a response, on 24 July 2019 he sent an email explaining that he had not been able to meet with counsel but, having obtained instructions, he said that ‘all paragraphs are admitted save for’ five paragraphs, one of which was paragraph 42. By implication, paragraphs 37–41 of the notice of pre-trial admissions were admitted.
157. Notwithstanding that email, no response to the notice of pre-trial admissions nor the final summary of prosecution opening was ever filed or served in accordance with pt 5.5 of the CPA.^[40] Indeed, further events occurred to place the emailed admissions in doubt.
158. On 24 July 2019, Ms Borg and Ms Fallar, prosecutors for the third trial, received their brief to prosecute the trial. It contained the revised prosecution opening, the unsigned notice of alibi, the defence response dated 8 February 2018 (not the revised defence response of 5 November 2018, although counsel became aware of that document later in trial preparation) and the informal response to the notice of pre-trial admissions in the form of Mr May’s email dated 24 July 2019.
159. On 5 August 2019, Judge Trapnell heard pre-trial argument ahead of the third trial, to commence the following day. Neither the prosecution nor defence made mention of whether the defence accepted or disputed that Obian rented the van from Mini Koala Car Rental. But, having seen the notice of pre-trial admission, the judge enquired whether there had been a response. With the apparent consent of defence counsel, the prosecutor explained that a statement of agreed facts was being prepared instead.
160. When a draft agreed statement of facts was emailed by the prosecutor to defence counsel on the opening day of trial there was no mention of who rented the van. That draft statement of agreed facts was modified and returned by the defence counsel, again containing no agreed fact that the applicant had hired the van or had attended the car rental premises (still less, that the applicant had delivered it to Allouche).
161. Around that time, Ms Borg had a discussion with Mr Billings about whether there was any need to call Wang and, if so, whether her evidence from the first trial could be played back to the jury. Mr Billings said in substance that the defence was not prepared to confirm that they accepted Wang’s evidence but was content for her evidence to be played back from the previous trial. When asked directly by Ms Borg to clarify whether the defence accepted that the applicant attended Mini Koala Car Rental to hire the van, defence counsel replied with words to the effect: ‘I’m not saying that’.
162. At the third trial, Wang’s evidence was played back to the jury and a photograph of the applicant in 2016 showing his large build was tendered by the prosecution. The statement of agreed facts tendered in evidence at that trial contained no reference to the applicant hiring the van or attending at Mini Koala Car Rental. The third trial was abandoned on 13 August 2019. The fourth trial commenced on 14 August 2019 without any change to that position and was abandoned on 16 August 2019.
163. The fifth and final trial commenced on 19 August 2019, again without any change to that position. An audio recording of Wang’s evidence, parts of which are outlined at [133(c)], was played to the jury on 21 August 2019. A further draft statement of agreed facts was circulated between the defence’s solicitor and the prosecutor on 26 August 2019, with a final version being signed and tendered as an exhibit on 5 September 2019. Neither the draft nor final version of that document contained any reference to Obian renting the van from Mini Koala Car Rentals. However, the defence requested, and the prosecution agreed to, the addition of a fact, namely:

Saer OBIAN, Kaled [sic] MOUSTAFA and Bilal ALLOUCHE were known to each other since in or about 2014 and on occasions they would meet together.

Proposed grounds of appeal and overview of submissions

164. Each of the three grounds contends that there has been a substantial miscarriage of justice within the meaning of s 276 of the CPA, one being the product of an error by the judge and the other two being occasioned by irregularities in the trial. I have adopted the numbering of grounds outlined by Priest JA above at [5]. Two of the applicant’s three propo[41]d grounds⁴¹ are that:

Ground 1:

The learned trial Judge erred in granting leave to the prosecutor to call evidence in reply on the basis that the accused had given evidence that could not reasonably have been foreseen by the prosecution.

Ground 2:

There was an irregularity in the trial, which resulted in a substantial miscarriage of justice, by reason of:

(a) the prosecutor relying upon the following propositions as to the course of the proceedings in support of the application, each of which was incorrect:

(i) it was always disputed that the applicant was the person who hired the van from Mini Koala Car Rentals;

(ii) the applicant’s evidence-in-chief was the first time that the prosecution had heard that the applicant now said he did hire the van;

(b) defence counsel failing to correct those incorrect statements;

(c) the learned trial Judge determining the application on the basis of the incorrect propositions identified above.

165. Grounds 1 and 2 were argued together.
166. The applicant submitted that the central question raised by s 233(2) of the CPA was whether the evidence given by the applicant concerning the circumstances of his hiring the van could reasonably have been foreseen by the prosecution. In written submissions, the applicant primarily concentrated on his evidence that he had hired the van. Thus, he focused on the prosecution’s statements outlined in [140] above and sought to attack those statements by reference to the intimations that had been given to the Crown in the past that the applicant would admit that he hired the van.
167. In short, the applicant submitted that the gateway to the judge’s discretion in s 233(2) was not opened because it was reasonably foreseeable the applicant would admit that he had hired the van.
168. The applicant more briefly addressed the argument that it was also reasonably foreseeable that he would say that he had hired the van for Allouche. Without setting out his argument in detail at this point, the applicant sought to link together a number of strands, namely:
     • (1) the defence concession before Judge Fox (as she then was) in 2018 that the applicant had hired the van;
     • (2) aspects of the cross-examination of Moustafa concerning his 11:21 pm telephone call to Allouche, Moustafa’s lack of direct knowledge of the hiring of the van and the possibility that Allouche may have contacted the applicant when Moustafa was not present;
     • (3) the applicant’s denial that he was present when the van was used to move the 1,4-BD on 14 June; and
     • (4) the agreed fact that the applicant, Moustafa and Allouche had been known to one another since 2014 and occasionally would meet with one another —

all to argue that it was thus ‘predictable’ that the applicant’s defence would be that he hired the van but then handed it over to Allouche.

169. Even if the gateway to the statutory discretion was open, the applicant submitted that it was wrong to exercise the discretion in favour of the Crown ‘in circumstances where the totality of the material in the hands of the Crown meant that the Crown could have reasonably foreseen the evidence given’.
170. Assuming the judge also decided the case on the common law principles laid down in Chin and Killick, the applicant submitted that the discretion was incorrectly exercised because the ‘very special or exceptional’ circumstances required under those principles were not demonstrated. That was so especially when one took into account that the judge was incorrectly led to believe that the first occasion on which the Crown had notice that the applicant might admit that he had hired the van was when he gave his evidence in chief.
171. Because the Crown had made erroneous statements to the court to induce the grant of leave, an irregularity had occurred in the trial. As a result of the leave being granted the applicant’s evidence was interrupted by a prosecution witness who directly challenged his evidence, that challenge being emphasised by the unusual procedure and timing. This fundamentally altered the proper course of the applicant’s trial. According to the applicant, the result was a substantial miscarriage of justice.
172. In reply to these submissions, the respondent contended that, based on the available evidence and the conduct of the defence case, the applicant had resiled from any suggestion that he ‘admitted’ to hiring the van. The respondent argued that it then followed that a submission that this fact was ‘always disputed’ was accurate.
173. Even if there was such an ‘admission’, the respondent argued there was nothing which could reasonably have triggered a line of enquiry in the prosecutor’s mind about what the applicant did with the van after it had been hired, particularly in giving it to Allouche. Until the point when the applicant gave evidence to that effect, the surveillance observations of Allouche on the night in question were simply not relevant to any issue in the trial. The evidence of the surveillance was adduced solely to rebut the applicant’s evidence that he hired the van for Allouche and delivered the van to him, not to rebut the evidence that the applicant merely hired the van (which was, in fact, the Crown’s position).
174. Accordingly there was no irregularity, let alone any fundamental irregularity, in the applicant’s trial by permitting the prosecution case to be re-opened for the limited purpose of adducing evidence from the relevant surveillance operative.
175. Significantly, the respondent also argued that the convictions on all charges were inevitable even without that evidence and thus no substantial miscarriage of justice had been occasioned.
176. Because of the significance which the applicant attached to the prejudicial impact the surveillance operative evidence had on his case, particularly because of the timing of its introduction, and also because of the respondent’s argument that the convictions were inevitable even without such evidence, it is necessary to describe in some detail the course of the trial and the evidence that unfolded.

The trial

Prosecution evidence

177. Almost all of the witness evidence adduced by the Crown in the trial was in the form of audio recordings of evidence given by witnesses at one of the earlier trials of the proceeding. The only exceptions were Detective Senior Constable Message and Detective Senior Constable Deason (the informant) who gave their evidence to conclude the Crown case. In addition to the audio recordings, the jury had a printed transcript of the evidence of each of the witnesses from the previous trials.
178. What follows is a summary of the relevant substance of each witness’s evidence, not in the order as given in the trial but arranged according to topic and generally in chronological sequence.
179. John Speziale ran a cleaning business. In about 2012/2013 he employed the applicant whom he knew as ‘Sam’, as a subcontractor for cleaning some banks. He said that in 2012/2013 the applicant had a crew of about 30 workers. He said he sold the applicant some cleaning equipment and some cleaning chemicals. Speziale had never heard of 1,4-BD as an industrial cleaner. At one stage, however, he had discussed the idea with the applicant of making up some cleaning product of his own to save costs, although the discussion went no further.
180. He lost contact with the applicant after that period until he engaged him again in about March or April 2016 on a subcontract basis to clean an IGA supermarket in Pascoe Vale. The contract was for three hours, three days per week paying $700 per fortnight. The applicant used SAA Cleaning Services as his company.
181. The evidence of a number of witnesses were then called through which to tender and explain the importation and transport documents associated with the first and second shipments of 1,4-BD in July and November of 2015 respectively, the subject of charges 1 and 2.
182. Michael Carrafa was a customs broker managing Austorient Freight Services. He gave evidence about the two shipments of 1,4-BD imported by the applicant. He described the applicant as being tall, around 6’2” or 6’3”, and ‘a touch overweight’. The first shipment of the product was one pallet of four 200 litre drums. Its weight was 888 kg.^[42] The second shipment was for 20 pallets of 4 drums, a 20-foot container load weighing 17,760 kg.
183. Mike Reed, general manager of EBT Transport of Tullamarine, explained that the first shipment of four barrels of 1,4-BD was delivered by road transport on 13 July 2015 to 44 Glenora Avenue, Coburg. The person who signed for the goods was ‘Saer Obian’.
184. Luke Mason was the general manager for Neutral Warehousing. He described the consignment of 20 drums handled for Austorient in November 2015. The task of Neutral Warehousing was to receive the container of consignment, unpack it, hold the goods for a period of time and release the goods on the authority of Austorient.
185. He said the consignment was collected from the warehouse in stages on four different occasions, one group of pallets on one day and the remaining pallets in three different collections on a second day. The man collecting the pallets used vans and the name given each time for collecting the goods was ‘Saer’.
186. Other evidence was given by witnesses who sold the applicant the plastic bottles and caps into which the 1,4-BD was decanted, and the cardboard boxes into which those bottles were placed. Linda de Kuyper, a customer relationship manager of FPC Food Plastics, received an order for 5,712 1-litre bottles and 6,000 caps from a person called Sam on 30 November 2015. On 2 December 2015 two males came to pay for the order one of whom was over 6 feet tall and ‘carrying weight’. The plastic bottles had the letters ‘FPC’ moulded into the plastic. Matthew Smith, the production manager of Australian Corrugated Packaging, said that he sold a total of 2,030 cardboard boxes to a male called Saer in December 2015. The boxes were ‘6-bottle packs’ and he described their dimensions. He said Saer had come in before placing the order to ensure that the bottles that he had would fit into the boxes that he had ordered.
187. The next group of witnesses were those more closely connected to the events relating to charge 3.
188. Khaled Moustafa was the Crown’s central witness. At the time of giving his evidence, he was serving a term of imprisonment. He had pleaded guilty to a number of charges of trafficking commercial quantities of various drugs of dependence, namely methylamphetamine, ecstasy and cannabis. He also had a prior conviction in 2009 for trafficking cannabis.
189. Moustafa said he had met the applicant in late November 2018 and said he knew him by the name of Sam. He developed a friendship with him. In June 2015 he was at the applicant’s home in Glenora Road, Coburg when the applicant said he had ‘something big happening and if it came off he would be a millionaire’. In or about November 2015, Moustafa said he first saw some big silver drums at the applicant’s premises. The applicant told him it was cleaning product and that he had a cleaning company although he had no intention of using the material as a cleaning product.
190. According to Moustafa, the applicant said the cleaning company was ‘a throw off’ so he could import the stuff. The applicant told Moustafa it was 1,4-BD which, when swallowed, was the same as GHB and he was going to sell it by the bottle. He had organised to obtain bottles and packaging. Moustafa said he helped the applicant move drums that were on pallets in a 10-tonne truck off the truck into a garage at the applicant’s parents’ place in Williams Road, North Coburg. Moustafa used a forklift to unload the drums.
191. Moustafa said he went to the house on many occasions and saw the applicant and others melting down the 1,4-BD to turn it into a liquid so it could be more easily put into bottles. He said the drums were sitting on bricks with the fire beneath them to heat the liquid up.
192. Moustafa gave evidence that he had organised a storage unit at Ashley Street Public Self Storage, Braybrook for his own purposes. When the applicant found out about it he asked Moustafa if he could move some of the drums and boxes to Ashley Street which Moustafa allowed on the basis that he applicant pay half the rental cost of the storage unit. He said the storage unit at Ashley Street was then filled such that nothing further could fit into it.
193. Moustafa said that on 29 December 2015 he met the applicant at the Crown Metropol Hotel where the applicant was staying with his girlfriend, Nikki-Lee. Moustafa said he observed Nikki-Lee counting money using a money counting machine in the hotel room.
194. In February 2016, Moustafa said he and the applicant attended a florist shop on Lygon Street ran by John Ioannou. Ioannou mentioned he had created a storage space within the shop and wanted to rent it out. According to Moustafa, the applicant said he was interested in the storage space so Moustafa introduced him to Ioannou. The applicant negotiated the rental of the storage facility at the florist shop for $700 a week, although Ioannou looked to Moustafa for payment because it was Moustafa whom Ioannou knew. Moustafa said he then helped the applicant move boxes of 1,4-BD into the storage facility at the florist shop. He said the boxes filled the whole room.
195. Moustafa said he later had ‘a scrap with Mr Ioannou’ because Ioannou said he was not being paid for the storage. Moustafa said, ‘I accidentally slapped him to the face with my right hand and he fell and hit his head’.
196. Moustafa said that, prior to 13 June 2016, the applicant had been selling the bottles in the boxes and the drums of 1,4-BD but was starting to get nervous.
197. Moustafa agreed that on the afternoon of 13 June 2016 he had a dispute with another individual at the florist shop and that Ioannou would have observed him physically dealing with that man by forcefully moving him to the storage area (referred to as the ‘kidnapping’ incident). Later, on the same day, Moustafa said he was with the applicant when they attended at the applicant’s parents’ home and saw the applicant give his father between $65,000 and $75,000 to take overseas. Shortly afterwards, they drove past Ioannou’s florist shop and saw two marked police cars outside and a number of police inside. It was at that point, he said, that they decided to move the boxes and drums from Ashley Street because the applicant told Moustafa there was a receipt left in the florist shop which could link Moustafa to the Ashley Street storage.
198. Later that evening, Moustafa said that the applicant picked him up from Lygon Street in a silver Toyota Corolla. At that stage the applicant had Omer Bchinnati with him. In the presence of the applicant, Moustafa rang another friend, Muneer Omar, to ask if they could move ‘some stuff’ into the backyard of his premises just for one night.
199. He said ‘that’s when Sam rang the van to hire’. He said he was not with the applicant when the applicant rented the van.
200. He then described the movements of each of them later that night as they moved the boxes and barrels. He said the applicant and Bchinnati were in the Toyota Corolla, and he and Muneer Omar were in the hired van. They collected boxes from the storage unit in Ashley Street, and also from another storage unit at Kennards Storage, and transported them to Muneer Omar’s fruit shop at 296 Racecourse Road, Flemington.
201. It was while they were at Ashley Street storage for a second time that Moustafa was arrested. On that occasion, there were four of them inside the Ashley Street storage facility — himself and Muneer Omar, as well as Patrick Formosa and Ahmed Inusah who had been enlisted to help. The applicant and Bchinnati remained outside in the Corolla keeping an eye out for the police. The four inside the storage facility were arrested. Moustafa said he later discovered that, although Bchinnati was arrested, the applicant had not been.
202. The prosecutor played to Moustafa two CCTV recordings, one from Kennards and the other from Ashley Street taken from the early hours of that morning. Moustafa identified himself in the first recording as the person driving the van that he said the applicant had rented, and said that it showed he and the applicant moving backwards and forwards to the van. The applicant was wearing a fawny brown-coloured cap and a grey top. He also identified the applicant in the second CCTV recording as the person sliding the rear passenger door of the van open and jumping in.
203. Finally, Moustafa described a conversation he had with the applicant, after the applicant was arrested, while they were at the same prison. According to Moustafa, the applicant said that he had arranged the movement of some 35 barrels of 1,4-BD that had remained in a truck at Williams Road to a storage facility at Tullamarine. He wanted Moustafa to ask Moustafa’s girlfriend to count the number of barrels at Tullamarine, which Moustafa did. When Moustafa’s girlfriend reported back that there were only 31 barrels at Tullamarine, the applicant ‘cracked the shits’.
204. In cross-examination, Moustafa was challenged on almost every piece of evidence he gave concerning the applicant, other than the fact that Moustafa had permitted the applicant to store some boxes and barrels of the 1,4-BD at the Ashley Street storage facility. Specifically, defence counsel challenged Moustafa’s evidence that:
     • the applicant said he was going to be a millionaire;
     • Moustafa helped the applicant unload drums of the product at Williams Road;
     • Moustafa observed the drums being heated by fire (or at all);
     • the episode at Crown Metropol Hotel involving the counting of money;
     • the applicant had anything to do with the rental of a storage facility at the Lygon Street florist, or had moved any of his product there;
     • the applicant had been present at the kidnapping incident in Lygon Street on 13 June;
     • the applicant had given his parents a large sum of money in Moustafa’s presence just before they left for overseas;
     • Moustafa and the applicant reattended the florist in Lygon Street and saw police present there;
     • the applicant had anything to do with moving boxes and drums of the 1,4-BD from storage at Ashley Street or Kennards in the early hours of 14 June 2016; and
     • the applicant had any discussion with Moustafa in prison about barrels of
       1,4-BD moved from Williams Road to a storage facility at Tullamarine (or at all).
205. Defence counsel put his instructions to Moustafa in the following terms:

     (a) the applicant runs a cleaning business;^[43]

     (b) the applicant requested Moustafa to store drums and packaged product at the Ashley Street premises in about December 2015;

     (c) the applicant paid $200 per month in rent to Moustafa for the use of that storage facility;

     (d) the Ashley Street premises was more than adequate to store the whole of the import;

     (e) the evidence Moustafa gave about the storage facility at Lygon Street was a ‘pack of lies’;

     (f) Moustafa stole the product from Ashley Street and ‘lifted the boxes’ from Ashley Street in Moustafa’s occupation as a drug dealer to sell the product for his own financial advantage;

     (g) in Moustafa’s occupation as a drug dealer, he had picked up knowledge about 1,4-BD as a drug;

     (h) Moustafa foolishly got himself involved in what was reported as a kidnapping at Lygon Street and then he panicked and organised the removal of the product at Ashley Street himself; and

     (i) Moustafa was then willing to throw his mate, Obian, under the bus for the purpose of getting a discount in sentencing.

206. Moustafa was then more particularly cross-examined about his dealings with Allouche concerning the hiring of the van late on 13 June 2016. He was questioned about the precise sequence of events.
207. Moustafa said that in the 11:21 pm telephone call he had asked Allouche whether Allouche could help them (he and the applicant) organise a van. Counsel asked Moustafa whether Moustafa was aware that Allouche had rung the applicant on that night, to which Moustafa said ‘no’. Counsel continued asking Moustafa questions about the hiring of the van. Moustafa agreed he was not present when the van was hired. He repeated his evidence that the applicant and Bchinnati had picked him up in a car and that he had phoned Allouche to ask whether Allouche could help with a truck. He said the applicant and Bchinnati were together in the car with him at that time.
208. When asked how Allouche had conveyed to him that Allouche could not help with the van, Moustafa then said ‘Sam lives around the corner from Bilal Allouche. That’s when we dropped off Sam to his house to organise a van’. He explained, Allouche had said to come past so they went to his house and ‘then he told us that he can’t help’. Following this, he drove the applicant to his house where he saw the applicant get into a car with his brother. Moustafa and Bchinnati headed towards the Ashley Street storage facility to await the applicant who had gone to hire the van.
209. It was put to Moustafa a number of times that Moustafa would not know whether or not Allouche had a telephone conversation with the applicant about hiring the van to which Moustafa replied that it was the applicant who rented out the van so there was no need for such a conversation. However, in answer to a question from the judge, Moustafa accepted that after he had driven off with Bchinnati he would not know ‘whether he’s for example called Mr Allouche again’. He answered ‘no, he just said he’s going to go get the van’.
210. Defence counsel ultimately put the following propositions to Moustafa:

     (a) the applicant was not present at any of the ‘establishments’, Ashley Street or anywhere else Moustafa went on the evening of 13, 14 June 2016;

     (b) the applicant was not present with and did not assist Moustafa or anyone else in the moving of materials on the evening of 13, 14 June 2016; and

     (c) Moustafa was not present at the time the van was hired.

211. John Ioannou gave evidence that he had run a florist business at 170 Lygon Street, Brunswick East for about four years up until June 2016.
212. In February 2016, he said he had created some storage areas within the shop which he could rent out. A customer of his, ‘Karl Moustafa’, negotiated for the rental of the corner shop storage area for $700 per week. After renting the storage area, Moustafa would come from time to time, perhaps a couple of times a week, to attend the storage. After initially paying the rent on time, Ioannou said he had to chase Moustafa for the money.
213. Towards the end of May 2016 he said there was a physical incident between himself and Moustafa resulting in him sustaining an injury for which he required 10 stitches to his head.
214. He gave evidence that, on Monday 13 June, about the time he was leaving his shop, he saw Moustafa having a physical confrontation with a man in the street outside his shop. Moustafa walked into the shop dragging the man with him. Two other people were behind Moustafa, one of which was his girlfriend, the other was ‘a tall guy, a bit chubby’. Previously he had been introduced to the larger male by Moustafa with the words, ‘this is my friend Sam’. He said that as Moustafa dragged the man into the shop, Sam had said to him (that is Ioannou) ‘it’s not about you’. That same day, Ioannou reported the incident to the police as a kidnapping.
215. Apart from the day of that incident, the only other time he had seen Sam with Moustafa was the day before, although he believed he may have spoken to Sam over the telephone on one occasion to ask why he, Sam, was not paying for the storage.
216. Ms Wang gave evidence which has already been partially summarised. In brief, she said that just after midnight on 14 June there was a knock on the door at Mini Koala Car Rental and, ‘I see a man looks very fat knock on the door. He said it urgent and need a car. He want to move a box’. She explained that she told the man he would need a credit card and a driver’s licence. Because he had provided a debit card and not a credit card he had to pay a bond of $800 in cash. He left as he did not have either a credit card or sufficient cash with him.
217. About half an hour later he returned with the money. He said he had come by taxi. Again he said he urgently needed a car to move something, he needed to move a box.
218. She spoke to him inside the office and followed him out to the vehicle. Because of his large size, she said he needed to squeeze into the seat. She said she took down various details and prepared the Mini Koala rental agreement. There was a small Commonwealth bank transaction of $30 for which several attempts were required before it was processed. (That was the transaction that bore the time stamp of 00:42). She observed the man drive off in the van.
219. In cross-examination it was put to her that on the written agreement she had circled PM and not AM as the time of hire to which she answered she must have made a mistake. When asked whether she compared the photograph on the driver’s licence and the man who hired the van, she said that she had and saw that they matched. She was not challenged about the man having said that he needed to move a box or boxes.
220. Surveillance operative 030 gave evidence that he performed physical surveillance for Victoria Police on the morning of 14 June 2016 making observations at the public self-storage facility at 7 Ashley Street, Braybrook. He observed a white van enter the driveway and stop at the security gate at 4:10 am. (It was the van hired from Mini Koala Car Rental). A Toyota Corolla sedan parked opposite and a male exited the Corolla and entered the van. He described the male as wearing a grey windcheater, dark pants and a dark baseball cap. The van entered the storage facility. At 4:29 am the van exited the storage facility and the same male emerged from the driveway of the facility on foot and got back into the passenger seat of the Corolla and it drove off.
221. At 4:45 am he observed both the van and the Toyota Corolla at the laneway at the rear of 296 Racecourse Road, Flemington. The same male exited the Corolla, entered the rear yard of 296 Racecourse Road and he saw that male and three other persons open the rear door and passenger sliding door of the van and begin removing a large amount of brown cardboard boxes. He took a short video of them.
222. At 5:00 am the male and three other people finished removing the boxes from the van. The male left the yard, got into the Toyota Corolla and drove off in convoy behind the van.
223. At 5:17 am he observed the van again at the Ashley Street public self-storage. The Toyota Corolla pulled up outside that storage facility and at 5:30 am he observed the van and another white van leave the public self-storage facility whilst another person left the security gates on foot. Thereafter he saw the van and the second white van move off in convoy with the Corolla following them.
224. Detective Sergeant Mark Collins, and Detective Senior Constable Homberg, both of the Fraud and Extortion Squad, were tasked to assist in the interception of vehicles at about 4:30 am on the morning of 14 June 2016 in the vicinity of the Ashley Street storage. One vehicle was believed to be driven by Moustafa. At about 5:20 am Detective Collins followed a Toyota Corolla with two occupants from Ashley Street into Alberta Street in Braybrook, observed the vehicle stop in Alberta Street and two occupants leave the car. One of the occupants was found hiding in the driveway of a house in Alberta Street and they arrested that person, Omer Bchinnati. The second occupant had fled. Detective Homberg, who attended the scene in Alberta Street, said that the Dog Squad Unit was called to assist. A police dog located a grey jumper and an olive coloured cap from underneath a vehicle parked in the driveway opposite the driveway where Bchinnati had been arrested.
225. Senior Constable Heath Drew was the police officer with the Dog Squad Unit who attended in Alberta Street with police dog Ike on the morning of 14 June 2016. Police dog Ike, trained to locate articles with recent human scent, located the jumper and cap beneath the car.
226. Bianca Laan is a forensic officer with Biological Services Group of the Victoria Police Forensic Services Centre in McLeod. Her skills include the interpretation and statistical evaluation of DNA profiles. She explained that she received 10 reference samples of known individuals including Obian, Moustafa, Allouche, Formosa, Inusah, Bchinnati and some others. Further, she received the cap and the jumper which had been retrieved from underneath the car in Alberta Street. A sample was taken from the inside surface of the front sweat band of the cap.
227. She said the DNA evidence was 100 billion times more likely to be explained if the applicant was a contributor to the DNA profile obtained from the cap. That meant there was extremely strong support for the proposition that he was a contributor to the DNA profile on the cap.
228. Having obtained that result on the cap she did not proceed to extract any sample from the jumper which she considered would provide less chance of obtaining a usable DNA profile.
229. Detective Senior Constables Message and Deason (the informant) were called to give evidence before the jury. From them, evidence was adduced, including:
     • A description of property seized from searches of the Glenora Avenue and Williams Road properties belonging to the applicant’s parents, as well as from Moustafa’s home;
     • CCTV footage and associated still photographs from the Thai massage shop near Ioannou’s florist shop in Lygon Street relating to 13 June 2016; and
     • Analysis of drugs, other than 1,4-BD, found in the storage space at Ioannou’s florist shop, namely, cannabis, MDMA (ecstasy) and methylamphetamine.

Detective Senior Constable Deason said that no report had been made to police after 14 June of any items having been stolen from the Ashley Street storage unit, nor did Obian report to police that any of his shipments of 1,4-BD had been stolen.

230. One or the other of the detectives agreed in cross-examination that —
     • The storage facility at Tullamarine found to contain a number of barrels of
       1,4-BD had been rented by one Akrem Jabir, with the rental being paid by Moustafa’s girlfriend;
     • $190,000 in cash was found at Moustafa’s premises, as was a money counting machine; and
     • Moustafa was the only person charged in relation to the drugs (other than the 1,4-BD) found at the Lygon Street florist shop.
231. Finally, several witnesses gave evidence of an expert nature concerning some of the properties and uses of 1,4-BD.
232. Dr Ian David Rae is a chemist. He gave evidence of the chemical properties of
     1,4-BD. He had researched the extent of its use as an industrial cleaner, and for other purposes. He found no evidence of its actual use as an industrial cleaner, although there was some such reported use in the scientific and industrial literature.
233. He explained that the chemical is a solid above 20 degrees Celsius. As it liquefies it is very thick and not runny. To turn 1,4-BD into a cleaning fluid would require an industrial setup, chemicals, the supervision of chemical engineers and so forth to undertake the process of adding chemicals or other fluids to it to convert it to a different substance.
234. In cross-examination, he resisted the proposition that the literature referred to 1,4-BD as a cleaning agent. In his view, any expressions to that effect were made ‘carelessly’ because 1,4-BD would first require its conversion into something else before it could be used as a cleaning agent.
235. Alan Brown is also a chemist. He was asked for an explanation as to what industries 1,4-BD is used in, in what sort of quantities, and if and how it is used in the cleaning industry. He explained his experience between 1977 through to 2016 in employment with companies that manufactured and supplied industrial cleaning chemicals in Australia. He said he had widespread exposure to all sorts of cleaning products and the chemicals used in them.
236. Prior to the request from police, he said he had never heard of 1,4-BD before. He then undertook some research and he found a reference to it in the NICNAS Review of 2009 as having a use as a cleaning agent, although he had never seen any ‘formulations’ incorporating that chemical in a cleaning product used by any cleaning company.
237. In cross-examination, he was taken to a number of publications which referred to
     1,4-BD as a cleaning chemical. Nevertheless, he said he had never seen any evidence of its actual use in any formulation for a cleaning product. If it had been so used, he said he would have expected it to come up in the material safety data sheets of cleaning companies.
238. Detective Senior Sergeant Brett Kahan was permitted to give evidence as an expert on the subject of 1,4-BD and its use as a drug. His expertise was established through his longstanding involvement in drug task force operations and a paper he had written on the subject of 1,4-BD and the need for Commonwealth and State legislative change.
239. He explained that 1,4-BD is widely used in the manufacture of polymers, or to convert it into tetrahydrofuran, which is an industrial solvent, but, once swallowed and consumed by the human body, it metabolises naturally and exactly into GHB. He said it is known as ‘the party drug’. He described its terrible taste and the frequent practise of combining it with a sweetener. He also said that it has a freezing temperature of
     18–19 degrees Celsius.
240. He gave evidence about the street prices for GHB. The lowest price he had seen for one litre was $700 and the highest price was $1,200, with the most consistent price around metropolitan Melbourne being $1,000 a litre. Assuming a sale of 16.8 tonnes, at $700 per litre (without wastage and assuming perfect sale to the market) that quantity would yield $11.9 million and at $1,200 per litre it would yield $20.6 million.
241. He agreed that because of the extraordinary profits which 1,4-BD could produce when sold as an illicit drug there had been an increase in instances where legitimate industry purchases of 1,4-BD had been targeted by thieves.

Applicant’s evidence in chief and cross-examination

242. In his evidence-in-chief, the applicant stated that in 2013, he was a student at Swinburne University studying civil engineering and living with his parents at 44 Glenora Avenue, a rental property. His parents also had an investment property at Williams Road, Coburg, to which they later moved to about the time he was released from remand in 2016.
243. In 2013, he began SAA Cleaning with two other student friends who, soon after, ceased their involvement. SAA Cleaning had a number of cleaning contracts for builders and rentals, with some commercial properties such as supermarkets and banks. His employees were mostly students on visas, and all payments were made in cash. A lot of them were Iranians, Indians and Pakistanis and, for that reason, when he later tried to locate them, he found it impossible to do so.
244. He typically bought cleaning products and materials via a website, Alibaba. He conducted a search on that site for an ‘all-purpose cleaning product’ which produced a list of possible products, including 1,4-BD. He ordered some 1,4-BD as a test run from a Chinese supplier. The minimum order was 800 kg. The instructions from the supplier was to dilute one litre of chemical with 10 litres of hot water.
245. The supplier gave him a CAS number and advised him about the registrations necessary to bring a chemical into Australia. He followed those instructions and obtained all the necessary permissions and registrations.
246. The 800 kg shipment arrived in Australia and was delivered directly to the Glenora Avenue address. It was delivered on a truck on one pallet containing four barrels.
247. The chemical was half solid, half watery. He had been instructed by the supplier that he needed to heat it up to be able to pour it out of the barrels. He bought a heating element, as advised by the supplier, which had to be poked through the hole in the top of the barrel after unscrewing the cap. It would slowly heat up the barrel. The element was tendered as an exhibit.
248. He bought bottles and cardboard boxes and he packaged the 800 litres into one litre bottles. He put the bottles into the cardboard cartons, six per carton. He and his brother, Basil, did this, taking about half a day. He said he packaged the liquid into one litre bottles, after dilution with water, and all his employees then needed to do was cut through the bottle and drop it into a bucket of hot water ‘because the thing was frozen’. He said he was using about 35–40 boxes of the 1,4-BD every fortnight in the cleaning business.
249. He gave evidence about the cost of previous soap-based products being between $45 to $70 for a 25 litre container, compared to the cost of 1,4-BD, which he calculated to be around $1.60 for 11 litres. He was happy he was saving a lot of money.
250. He denied ever having a conversation with Moustafa about plans to become a millionaire. He said that throughout 2015, Moustafa never visited his home, although he had a discussion with him towards the end of that year about renting some storage premises from him.
251. He had used all of the first consignment of 1,4-BD by the time he made the second import. This time, he decided to purchase in bulk, because it would be cheaper than paying the importation and freight costs each time he bought an 800 kg order. He decided to buy 16 tonnes. He took out a personal loan with the ANZ Bank to pay the AUD37,000 necessary for that purchase.
252. Around the time of the second importation he had discussions with Moustafa about a storage facility. He made an oral agreement with Moustafa for sharing the cost of a storage unit at Ashley Street Public Storage. His contribution was $200 per month. He paid the first two months by cash and the rest in advance by a bank transfer into Moustafa’s account.
253. When the second importation of 16 tonnes of 1,4-BD arrived in late November 2015, on one day he picked up one pallet load of four barrels, weighing 880 kg, in a van, which he took his parents’ property at 6 Williams Road, Coburg North. The next day, he picked up the balance of the consignment (a further 16 barrels) in three separate collections, each time using a van. Some of the loads were dropped off to Williams Road, and the balance went straight to Ashley Street. At Williams Road, the barrels were unloaded by a forklift which he drove himself. Moustafa was not present and did not assist in any way in unloading the 1,4-BD at Williams Road. Those that were unloaded at Ashley Street were unloaded using an electronic forklift which he said he purchased and was hand operated. Although he needed Moustafa to be present at Ashley Street to open up the storage unit, otherwise Moustafa did nothing.
254. He agreed he stayed at the Crown Metropol Hotel on 29 December 2015 with his girlfriend, Nikki-Lee, as it was his birthday. Whether or not he saw Moustafa there, he could not recall, but he said it was ‘a lie’ that Moustafa witnessed Nikki-Lee counting a large sum of money or using a money counting machine, saying, ‘I don’t have a money counting machine’.
255. He then gave evidence about the events of 13 June 2016. On that day, his parents were about to travel overseas and he was at home at Glenora Avenue for the whole day until he and his brother took their parents to the airport. He denied seeing Moustafa at all that day, that Moustafa saw him giving his father a large sum of money, that he attended with Moustafa at an alleged kidnapping in Lygon Street, or that he and Moustafa later observed police at the florist premises in Lygon Street.
256. His parents’ flight departed at 10:10 pm. Together with his brother Basil, they left home in Coburg around 5:00 pm or 6:00 pm to go to the airport. After seeing their parents into the international departure section, they returned home around or before 8:00 pm. Thereafter, his brother, Basil, and Basil’s friend, Joseph Saad, were just ‘kicking back having a couple of drinks’.
257. He said he left the Glenora Avenue home later that evening for ‘about an hour, give or take’. He explained that a friend, Allouche, rang to ask him if he, Allouche, could ‘borrow my van’, to which the applicant had replied no because he needed it for the next couple of days. After hanging up, Allouche called back a little time after to ask if the applicant could ‘rent a van for him’, to which he said, ‘Yes’, and went out and rented a van. He explained that he had known Allouche from primary school. He also said that he had established a company, Easy Hire Cars Pty Ltd, which he was intending to operate as a business. For some time he had been renting cars to friends who asked for them. So, he said added $60 to the rental price for the van, which was $140, charging Allouche $200.
258. He explained that he went to Mini Koala Car Rental in Bell Street by taxi, inquired about the rental of a van and was informed of the price and that he needed a bond of $800. He took the taxi back to Allouche’s house and told him it was going to be $200 a day and that he needed $800 for a bond. The travel time between the rental premises and Allouche’s house was about 10–15 minutes by car.
259. He explained that he went to the hire car premises twice. The first time was to inquire how much a van would cost and he only had a brief conversation through the door. He then left the rental business by taxi, went and saw Allouche, and returned by taxi to the hire car premises the second time, rented the van and left in the van. He did not ask Allouche what he needed the van for; ‘he just said he needed the van’.
260. The applicant said he did not know what happened to the van that he hired out. As no one had called him to say that the van had not been returned, he assumed ‘after Bilal was finished with it, he returned it’.
261. Upon being shown the jumper and cap found under the car in Alberta Street, he said the cap was possibly one of his although the jumper was not. He thought he possibly left the cap in the storage unit at some point.
262. Finally, he denied any knowledge of barrels of 1,4-BD stored at Tullamarine, or having any conversation whatsoever with Moustafa in prison about them. He said he had no conversations with Moustafa in prison at all.
263. The prosecutor commenced her cross-examination of the applicant. After asking a few questions about his dealings with Speziale the prosecutor turned to the subject of the hiring of the van. Until that point, the applicant had not stated any specific times for his attendances at Mini Koala Car Rental or at Allouche’s house on 13 or 14 June 2016.
264. In cross-examination, the applicant said:
     • He received two telephone calls from Allouche, the first must have been prior to midnight and the second straight after;
     • Allouche’s request did not seem to be a ‘pressing need’;
     • The applicant first arrived at the rental premises by taxi, ‘just after 12’;
     • The applicant travelled to Allouche’s house at 81 Harding Street, again by taxi, which was just around the corner from his own house at Glenora Avenue — he could not say the exact time ‘but before 12:30’;
     • The purpose of going to Allouche’s house was to get $800 for the bond and $200 for the rent — he did not ring Allouche in advance, but just knocked on his window when he got there;
     • He returned by taxi to the car rental business and agreed that the debit card entry at 12:42 am recorded for the transaction described by Wang would be correct;
     • After renting the van, he drove it to Allouche’s house, arriving there ‘just before ... 12:55’, a time which he described as ‘approximate’;
     • Allouche’s house at 81 Harding Street was like a shop, with Allouche’s room right at the front with a window. He said when he delivered the van, he pulled up outside in the street, not down a laneway or a driveway. After knocking on the window, Allouche came out the front door.
265. The prosecution put the Crown case to the applicant as follows:

     (a) he did not hire the van for Allouche;

     (b) he hired it so he could use it when he attended at Kennards Self Storage around 2:00 am;

     (c) then go to 296 Racecourse Road at 3:30 am;

     (d) then to Ashley Street Public Storage at 4:29 am;

     (e) then back to 296 Racecourse Road at 4:46 am; and

     (f) finally back to Ashley Street Public Storage at 5:17 am,

to all of which he said, ‘I wasn’t there’.

266. At that point, the prosecutor indicated she had an application to make.

Prosecutor applies to re-open the Crown case

267. In the absence of the jury the prosecutor applied to the judge to call rebuttal evidence.
268. At first, the prosecutor put her application on the basis of s 106 of the Evidence Act 2008, that is, for leave to call credibility evidence to rebut denials made by a witness. The prosecutor foreshadowed that she would be able to call evidence from surveillance operatives who had the premises of Allouche under surveillance between about midnight and 1:30 am on 14 June and who could rebut Obian’s account that he had attended Allouche’s premises twice in that time span: first to obtain the money for the bond and then to deliver the hired van.
269. In making the application, the prosecutor said that it ‘was always disputed that Mr Obian was the person who hired [the van] from Mini Koala Car Rentals’. The prosecutor again submitted that ‘there has always been a denial that it was Mr Obian that was there at Mini Koala ... and that has not changed.’ It is readily apparent that the prosecutor was referring to the defence response dated 8 February 2018. This, of course, was incorrect at least because the amended defence filed 5 November 2018 stated that it ‘is not admitted that Obian hired YZP805 from Mini Koala Car Rentals’. The prosecutor’s error becomes even more apparent when the judge asked her directly whether there had been a response to any subsequent version of the summary of prosecution opening (that is, after the prosecution opening of 26 October 2018) and the prosecutor incorrectly answered ‘no’.
270. The prosecutor again informed the judge ‘this is the first time that we’ve heard that Mr Obian now says he did hire this van ... his evidence in chief was the first time that ... the Crown has been asserted [sic, ‘alerted’] to that’. Similar statements were repeated throughout the Crown submission.^[44]
271. There is no doubt that these statements involved an overstatement of the true position. By November 2018, Obian had changed his formal position, recorded in his defence response as filed and served, from disputing that he hired the van to simply not admitting it. During the second trial, on 19 November 2018, after the Crown called Wang to give evidence that a man answering Obian’s description and using his driver’s licence had hired the van, Mr Billings informed Judge Fox that Obian did not challenge the assertion that he hired the van. On 24 July 2019 Obian’s solicitor had emailed the OPP effectively admitting that Obian had hired the van in response to a notice of pre-trial admission (albeit that the response was never filed nor served).
272. Defence counsel did not assist by correcting the prosecution’s statements. Perhaps that was because he had also forgotten about the history of concessions and informal statements between prosecution and defence or because, as the judge later speculated, the defence may have decided to ‘play their cards close to their chest’.
273. Nevertheless, it at least remained Obian’s formal position at the commencement of the fifth trial that he did not admit to hiring the van as confirmed by Mr Billings to the prosecutor in the out-of-court discussions they held to arrive at the Statement of Agreed Facts tendered as exhibit P36. No admission was made in that Statement of Agreed Facts about Obian hiring the van. In those circumstances, the Crown had to rely upon the evidence of Wang to prove that Obian had hired the van. Without any suggestion from the defence that it was unnecessary to do so, Wang’s evidence was played back to the jury.
274. Returning to the way the application was conducted, the judge queried the prosecutor as to why she had not immediately applied to reopen the Crown’s case once Obian had completed his evidence in chief rather than embark on cross-examination. The prosecutor responded, saying, that it was necessary to establish that the surveillance operatives’ evidence would be relevant by ascertaining the actual times when Obian had visited Allouche’s premises. As mentioned, Obian had not given evidence of any specific times in his evidence in chief. The judge appeared satisfied with this explanation and no challenge is made to it.
275. The judge quickly recognised that the surveillance operatives’ evidence was relevant to a fact in issue, not merely to Obian’s credit. The surveillance operatives’ evidence therefore not being ‘credibility evidence’,^[45] the judge correctly construed the prosecutor’s application as being an application to reopen the Crown’s case to lead rebuttal evidence. The judge identified both the common law principles for doing so, and the statutory basis provided under s 233 of the CPA. From an early stage the judge directed his enquiry to ascertain whether there were ‘exceptional circumstances’, including that the Crown had no notice of the evidence that Obian was to give about hiring the van. Thus, the judge focused on what notice the Crown had been given.
276. Around this time the judge declined to give defence counsel leave to speak with the applicant as the applicant remained under cross-examination. This decision is the subject of proposed ground 3.
277. Despite the prosecutor’s concentration on the fact that Obian had (allegedly for the first time) admitted that he had hired the van, statements made by the judge reveal that he in fact apprehended the real significance of Obian’s evidence to be, not simply that Obian had hired the van, but that he had hired the van for Allouche, delivered it to him and had then returned home claiming to have had nothing further to do with the use of the van thereafter. The judge made this plain on many occasions in his discussion with prosecutor and defence counsel. It is well captured by what the judge put to defence counsel:

You take issue with the fact that your client was involved in the movement of this chemical on that night. And the basis that you take issue with it is that he wasn't there because he hired the vehicle from [sic, ‘for’] Mr Allouche, handed it over to him, and went home. Now, where's that in the defence response?

MR BILLINGS: Well, it's not there.

HIS HONOUR: No. Clearly not.

MR BILLINGS: No, it isn't. But it's - - -

HIS HONOUR: And how could the Crown possibly have notice of that?;

278. By that stage defence counsel had informed the judge of the existence of the 5 November 2018 defence response in which the hiring of the van was ‘not admitted’ rather than disputed. But focusing on the more pertinent issue, the judge put it squarely: ‘Where is there in the defence response any suggestion that he hired it on behalf of Mr Allouche, and took it over to his place.’ When defence counsel said that there was none, the judge replied ‘Which is why the Crown has been taken by surprise by this evidence and is making the application the making’.
279. Having understood the true significance of Obian’s evidence to his defence, the judge enquired what evidence there had been that Allouche was involved on the night of the hiring and use of the van. That exchange led to a detailed discussion with defence counsel about all of the evidence concerning Allouche on the evening of 13 June.
280. In particular, defence counsel took the judge through the evidence concerning the intercepted telephone conversation between Moustafa and Allouche at 11:21 pm on 13 June. Counsel also took the judge to Moustafa’s evidence about having dropped into Allouche’s house soon after the 11:21 pm telephone call, Allouche telling Moustafa and Obian that he, Allouche, could not help with obtaining a van, Obian and Moustafa returning to Obian’s house and Obian departing with his brother, Basil, in the Toyota Corolla to hire a van. It is plain that both the judge and counsel were focused on examining whether there was any evidence that the Crown had been alerted to the purpose for Obian hiring the van (i.e. for Allouche), not the fact of the hiring.
281. The judge pointed out that the evidence led by the Crown concerning Allouche was that Obian and Moustafa had approached Allouche to get a van for them, not that Allouche asked them to get a van for him. Although defence counsel said that Moustafa’s evidence was challenged, the judge persisted in asking defence counsel where it was in the evidence that the defence had put the Crown on notice that the defence was going to say that Obian hired the vehicle on behalf of Allouche.
282. Defence counsel frankly (and correctly) admitted that nothing had been put to Moustafa or to any other witness to put the Crown on notice that that was to be Obian’s case. Nothing had been said in the defence response, in any other document filed by the defence in the proceeding, in Obian’s evidence, or put by way of question or suggestion to a Crown witness, to put the Crown on notice that even if Obian had hired the van he had done so for Allouche, had delivered the van to Allouche and had then gone home.
283. Recognising the importance of the application, the judge gave defence counsel further time to check the evidence and to ascertain whether there might have been something to put the Crown on notice of what Obian would say was the purpose of hiring the van and what he did with it.
284. Upon returning to court, counsel made an application to exclude the evidence under s 137 of the Evidence Act 2008 arguing that its probative value was limited because of the possibility that Obian had been wrong about the times he gave in answer to the prosecution’s questions and that the period of surveillance of Allouche’s house may not have covered the two occasions on which Obian said he visited Allouche. The judge reviewed the two objective pieces of evidence fixing times that evening. They were the 11:21 pm telephone call between Moustafa and Allouche and the credit card transaction at Mini Koala Car Rentals at 12:41 am on 14 June (being the second of the two occasions that Obian attended the business and around the time he departed with the van). The judge also examined the map which had been tendered in evidence showing the locations of Obian’s house, Allouche’s house and the car rental establishment and satisfied himself that the journey times between each of them, by car, would have been of relatively short duration.
285. In reply submissions, the prosecutor pointed out that Wang had stated that the man who had hired the van had said that it was urgent and that he needed a van ‘to move a box’. It had not been put to Wang in cross-examination that she was wrong about either of those two propositions. Clearly those propositions were inconsistent with a defence case that Obian was only hiring the van on behalf of Allouche, had no knowledge of what the van was being hired for and was not intending to be involved in its use. Lack of challenge to them clearly did nothing to alert the Crown to what Obian’s real defence was going to be. Indeed, to the contrary, that lack of challenge was more consistent with a case that Obian was hiring the van on his own behalf.
286. In those circumstances the judge concluded that the foreshadowed evidence of the surveillance operatives was likely to have a high degree of probative value. No challenge is made to that conclusion.

Ruling

287. The judge’s ruling was short. Given its importance, it is worth setting out in full:

Yes, well I will grant leave pursuant to s.233(2) of the [CPA], for the Crown to reopen its case and lead evidence from Surveillance Operative 116 and 26. Insofar as 26 is concerned, I will grant leave to lead evidence of the general background and then the observations made at 81 Harding Street, Coburg, the home of Mr Bilal Allouche between 12.12 am and 1.26 am. And in the case of Surveillance Operative 116, general background, only so much as necessary for the jury to understand the evidence. And the observations of that operative at

81 Harding Street, Coburg from 0003 to 0126.

I am satisfied that the accused gave evidence which could not reasonably have been foreseen by the prosecution having regard to the response of the accused to the summary of the prosecution opening and the response of the accused to the notice of pre-trial admissions. There was no response to the notice of pre-trial admissions, was there? No. As served on the prosecution and filed in court. And so I will allow the Crown to lead that evidence in reply.

I note that s.233(2) of the [CPA] does not provide any guidance on how that discretion is to be exercised other than that it can only obviously be exercised where the evidence in the defence case could not reasonably have been foreseen by the prosecution. And I note that the Bench Notes in the Criminal Procedure manual say this:

• The prosecution may reopen its case if the accused gives evidence that could not reasonably have been foreseen by the prosecution having regard to the defence response to the summary of the prosecution opening and the defence response to the notice of pre-trial admissions. At common law the prosecution could only reopen its case in special or exceptional circumstances and not if the need for the evidence ought reasonably to have been foreseen.

And it quotes Chin, Lawrence and Killick. And then this is the comment by the author of the Bench Notes:

• It appears that s.233(2) of the CPA 2009 lowered the threshold for a judge to allow the prosecution to reopen its case.

However, in my view this case falls into that exceptional situation where the evidence that is central to the Crown's case on Charge 3 had absolutely no reasonable foresight of this evidence being led and it has available to it credible evidence which would allow a jury to find that the defence evidence was contradicted by the Crown evidence that is sought to be led in reply.

And, consequently, had I been required to exercise the discretion at common law I would have done so, and I would have done so for the reasons which will become apparent from my discussion with counsel in the course of this application which I incorporate into these reasons.

288. Before adjourning overnight, the judge permitted defence counsel to speak to the applicant to explain the ruling, its consequences and how matters were to proceed, giving firm instructions to counsel not to ‘go into any question in relation to his evidence or instructions in relation to all that’. The judge insisted that counsel only confer with the applicant in the presence of counsel’s instructing solicitor.

Resumption of cross-examination of the applicant

289. Upon resuming her cross-examination of the applicant, amongst other things the prosecutor:
     • Challenged the applicant about the safety and practicality of the system which he had described for providing 1,4-BD to his employees;
     • Challenged him about the claimed economy of using 1,4-BD compared to orthodox detergents, after taking into account all importation, freight and packaging costs, in response to which the applicant appeared to acknowledge that 1,4-BD may have been more expensive than the conventional detergents;
     • Suggested that the applicant knew, instead, he could make $17 million if the
       1,4-BD was sold as a drug;
     • Put to the applicant that he was using his cleaning company ‘to hide in plain sight’ the importation of a drug intended for human consumption; and
     • Put to the applicant that his brother, Basil, gave evidence at his bail application on 28 September 2016 without saying anything about the applicant being home on 13/14 June except for ‘about an hour’, and only first gave that evidence at the second trial in November 2018.

Defence asks a judge to vacate the ruling

290. After the conclusion of cross-examination and before surveillance operative 116 was called, the defence effectively applied to have the judge vacate the ruling. Counsel listed eight points for applying to do so:

     (a) that the evidence proposed to be called from the surveillance operatives was not true rebuttal evidence;

     (b) the evidence was not ‘exceptional or special’, but merely marginal;

     (c) the evidence did not disprove or rebut Obian’s evidence about attending Allouche’s house;

     (d) there was still a relevant timeframe in which Obian could have delivered the van to Allouche without being observed by the surveillance operatives;

     (e) permitting the Crown to reopen its case would draw unwarranted attention to the challenge to the accused’s account and would cause undue prejudice;

     (f) had the evidence been called during the Crown case, it would not have been fatal to Obian’s account because there could have been cross-examination which would have opened up the ‘hiatus’ which could not later be challenged by the Crown;

     (g) by contrast, by permitting the Crown to lead the evidence after cross-examination of Obian, the Crown evidence could be fatal to Obian;

     (h) the ‘re-opening aspect’ would cause unfair prejudice to Obian that would outweigh any probative value to the Crown, relying upon ss 135, 136 and 137 of the Evidence Act.

291. The judge refused the defence application pointing out that it was tantamount to requesting a judge to overrule his own ruling. In doing so, the judge added to the reasons he had already given for the ruling. He explained that, until Obian gave evidence that he had rented the van on behalf of Allouche; gone to Allouche’s house; got money for it; returned to the car rental business; collected the vehicle; driven it back to Allouche’s house; left the vehicle with him and walked home — none of the surveillance evidence in relation to Allouche and his house between 12:03 am and 1:26 am on 14 June would have been relevant or could have been led by the Crown. Defence counsel did not resist that proposition.
292. Further, the judge reiterated that the proposed evidence was highly probative because, at the very time Obian said he was performing these movements to and from Allouche’s house, there was surveillance of the very place he claimed to have been attending. The surveillance operative’s evidence could ‘put the lie’ to his version of events.
293. The judge acknowledged that there would be potential prejudice to Obian because the evidence contradicting Obian’s evidence about these movements was going to be highlighted by the fact that it was coming after the close of the Crown’s case. But the judge explained that he had taken that into account when he ruled. In his view, the prejudice was of the applicant’s own making because he had not properly stated the facts, matters and things on which he relied for his defence and the Crown could not have had reasonable foresight that it would arise. He said, ‘that prejudice flows from the manner in which the defence has conducted its case’.
294. Further defence arguments came perilously close to complaining that the applicant had been unfairly deprived of the chance to tailor his evidence as to the times at which he visited Allouche’s house with the benefit of having heard the surveillance operative’s evidence about the times of surveillance. The judge reminded defence counsel that the surveillance operative’s evidence was in the hand-up brief and that the operatives could have been, but were not, requested to attend the committal for cross-examination.
295. After dismissing the further arguments, arrangements were made between the judge and counsel for the time and manner in which the surveillance operative’s evidence would be called. The judge considered (and neither counsel demurred) that in order to ameliorate the prejudice to the applicant, the surveillance operative’s evidence should be called at the conclusion of cross-examination of the applicant and before any re-examination. The judge considered that this would be fairest sequence because, first, it would allow defence counsel to re-examine the applicant to adduce whatever explanatory account he wished to give in response to the surveillance operative’s evidence and, secondly, it would avoid the surveillance operative’s evidence being the last thing the jury heard before retiring to the jury room at the conclusion of evidence.

Surveillance operative’s evidence

296. Surveillance operative 116 was then called before any re-examination of the applicant.^[46]
297. He stated that he was a member of a team of surveillance operatives designated to observe Allouche’s house at 81 Harding Street, Coburg in the early morning of 14 June 2016. Surveillance operative 116 was the log keeper for the team, recording the observations made by four other surveillance team members.
298. He recorded the first observation of an operative who, at 12:03 am on 14 June, drove by the house and recorded there were no known vehicles or persons sighted. At 12:12 am four other operatives arrived at the house and ‘maintained surveillance’ thereafter. At 12:23 am Allouche was seen to emerge from the house and speak on the telephone. Two minutes later he entered a Ford sedan which arrived at Harding Street and the car drove to a 7-Eleven store in Bell Street, Coburg. At that store Allouche got out of the sedan and was seen talking on the telephone outside the 7-Eleven store. At 12:36 am he re-entered the sedan which drove to a kebab shop Sydney Road. After Allouche entered the shop and returned to the vehicle, the vehicle returned to his home by 12:46 am where he was seen to leave the sedan and enter his house by the front door. Until 1:26 am there were no further observations of note, when all operatives ceased observations of the house and left for another area.

Further defence evidence

299. Thereafter, Obian was re-examined by defence counsel. In re-examination, amongst other things, Obian gave the following evidence:

     (a) it was only when he was in gaol and received the brief of evidence that he worked out that Moustafa must have stolen his 1,4-BD from Ashley Street;

     (b) on 28 September 2016 his brother, Basil, when giving evidence on his bail application, was not questioned about Obian having remained home at Glenora Avenue in Coburg on the night of 13/14 June apart from one hour;

     (c) after the debit card transaction at 12.42 am on 14 June 2016 at Mini Koala Car Rental, he had remained inside the office with Wang because she needed to verify the card that it was not stolen. They then started filling out the rental agreement forms with details of telephone numbers, date of birth, credentials etc. There was a language barrier between them and the conversation was going back and forth. Wang went through insurance details and there was ‘a bunch of forms’ she had to go through before she rented the van out to him. Then they had to step outside to inspect the car to be satisfied the van had no faults or dents, and to check that the lights and indicators were all working, all of which took some time although he was unable to estimate how long;

     (d) returning to his previous evidence as to the times he left the car rental premises and arrived at Allouche’s house, he said ‘I just gave an estimate based on distance from my house to the Koala Car Rentals and I added it to the receipt. Just an estimation.’ He said he maintained his evidence in relation to the circumstances of the hiring of that van on behalf of Allouche notwithstanding the evidence of the surveillance operative.

300. The defence called four further witnesses.
301. Patrick Formosa gave evidence that he was asked by his friend, Munir Inusah, to help move some furniture in the early hours of 14 June 2016. He attended at the Ashley Street Public Storage for a short while before discovering that what they were moving was in fact drugs, as a result of which he said, ‘I’m out of here’. Before leaving, however, he was arrested by police. He said that he did not see anyone else there except Moustafa and Inusah, but agreed he was only there for about 15 minutes.
302. Harma Obian, the applicant’s father, said that on 13 June, he and his wife were preparing to go overseas. The applicant was at the house all day, helping to get them ready to depart. He denied that Moustafa was at the house at any time that day, and further denied being given any cash by his son, Saer. Saer and Basil drove them to the airport at around 5:30 pm.
303. Basil Obian, the applicant’s brother, said that the applicant was home all day on 13 June 2016. After they returned from taking their parents to the airport, they remained together with Joseph Saad at Glenora Avenue except that the applicant went out for ‘maybe about half an hour to one hour’ around or after midnight. He said that his brother did not say where he was going or what he was doing, nor did he say where he had been or what he had been doing when he returned. He and the applicant slept in the same bedroom that night, and they all went to bed at about the same time. As to why he did not give that evidence at the bail application in September 2016, he said, ‘I was not asked that question’.
304. He gave evidence that he helped his brother melt down the first shipment of product at Glenora Avenue using a heating element, and denied ever having heated it up with a fire on bricks as Moustafa had described. He also denied that Moustafa attended the family home at any time on 13 June 2016.
305. Joseph Saad said he was at the Glenora Avenue home on 13 June 2016. He went to the airport that evening with the applicant and Basil, and returned to the home and remained with the applicant and Basil ‘chilling out’. He did not notice the applicant go out that evening and was unsure as to times and his recollection generally. He said he was first asked to recall the events of 13 June 2016 only after the trial that occurred in November 2018.

Did the judge err in granting leave to the Crown to re-open its case?

306. Before coming to s 233 of the CPA, it is convenient to begin with the common law principles applicable to re-opening of the Crown case during or after the case for the defence.

Common law principles

307. In Shaw v The Queen,^[47] Dixon, McTiernan, Webb and Kitto JJ expressed the essential principle as that the prosecution must present its case completely before the accused’s answer is made and that it may not split its case on any issue. They went on to say, however, that 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. ... 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... Further... the English cases make it plain enough that generally speaking an occasion will not suffice for allowing an exceptional circumstance if it ought reasonably have been foreseen.^[48]

308. In Killick Gibbs CJ, Murphy and Aicken JJ, after referring to the principle quoted from Shaw, said that the —

general rule that all available evidence on which the prosecution intends to rely in proof of the guilt of the accused should be presented before the close of the case for the Crown is not merely a technical rule, but an important rule of fairness. 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.^[49]

309. In Chin, the High Court again returned to the rule in Shaw. Dawson J (with whom Mason J agreed, and both of whom formed part of the majority) said —

[b]eyond saying that exceptional circumstances do not embrace a situation which ought reasonably to have been foreseen by the prosecution or which would have been covered if the prosecution case had been fully and strictly proved, this Court has declined, having regard to the multifarious directions which a criminal trial may take, to lay down any rigid formula.

...

Where evidence which the prosecution seeks to call by way of rebuttal is also confirmation of the case which it has sought to make, the trial judge must exercise his discretion to ensure the observance of the principle which finds its expression in the rules which have been laid down. See Killick’s Case (23). If the evidence was only of marginal, minimal or doubtful relevance to the prosecution case, it may properly be admitted to rebut the defence case.

...

The relevant principle is essentially one of fairness. The accused is entitled to know the case which he has to meet so that he may have adequate opportunity to determine what questions he may wish to ask in cross-examination, what evidence, if any, he may wish to call and what objections, if any, he may wish to raise in the case against him. Ordinarily the depositions upon which he is committed for trial will provide him with this information in advance and if the prosecution intends to call additional evidence it is required to give notice of its intention to do so. The whole procedure would be undermined if the prosecution were permitted, save in exceptional circumstances, to call evidence in support of its case after the close of the case for the defence.^[50]

310. In summary, at common law —
     • In order for the prosecution to be permitted to split its case and call evidence after the defence case has commenced, the circumstances must be ‘very special’ or ‘exceptional’;
     • Courts have declined any rigid formula for identifying when such circumstances may be found to exist;
     • Generally, however, such circumstances will not exist if the occasion for re-opening ought reasonably to have been foreseen;
     • Essentially, the rule is about fairness to the accused;
     • Evidence that the prosecution seeks to admit upon re-opening might more readily be permitted if, prior to the defence case, such evidence was of only marginal, minimal or doubtful relevance to the prosecution case.

Statutory rule

311. Section 233 of the CPA was introduced in its current form when the Act was first enacted in 2009. There was no statutory equivalent to the provision in the procedural provisions previously found in the Crimes Act 1958 or the Crimes (Criminal Trials) Act 1999 (referred to further below). Prior to 2009, the discretion to permit the prosecution to adduce further evidence after the close of the prosecution case, in response to evidence called by the accused, was solely governed by the common law principles summarised above.
312. Like all statutory provisions, s 233(2) must be construed by reference to its text, context and purpose.^[51] Section 233 was introduced in the setting of other provisions found in pt 5.5 of the CPA that laid out a framework for pre-trial case management designed, amongst other things, to encourage communication between the parties and to identify at an early stage the issues actually in dispute. Sections 182 and 183 of the CPA, in div 2, pt 5.5, headed ‘Pre-Trial Disclosures’, provide:

182 Summary of prosecution opening and notice of pre‑trial admissions

(1) Unless the court otherwise directs, at least 28 days before the day on which the trial of the accused is listed to commence, the DPP must serve on the accused and file in court—

(a) a summary of the prosecution opening; and

(b) a notice of pre-trial admissions.

(2) The summary of the prosecution opening must outline—

(a) the manner in which the prosecution will put the case against the accused; and

(b) the acts, facts, matters and circumstances being relied on to support a finding of guilt.

(3) The notice of pre-trial admissions must identify the statements of the witnesses whose evidence, in the opinion of the DPP, ought to be admitted as evidence without further proof, including evidence that is directed solely to formal matters including—

(a) continuity; or

(b) a person’s age; or

(c) proving the accuracy of a plan, or that photographs were taken in a certain manner or at a certain time.

(4) If an accused has not received, under section 147, a copy of a statement identified in a notice of pre‑trial admissions, the notice must contain a copy of the statement.

183. Response of accused to summary of prosecution opening and notice of pre-trial admissions

(1) After being served with a copy of the documents referred to in section 182, the accused must serve on the prosecution in accordance with section 392 and file in court, at least 14 days before the day on which the trial of the accused is listed to commence—

(a) a copy of the response of the accused to the summary of the prosecution opening; and

(b) a copy of the response of the accused to the notice of pre-trial admissions.

(2) The response of the accused to the summary of the prosecution opening must identify the acts, facts, matters and circumstances with which issue is taken and the basis on which issue is taken.

(3) The response of the accused to the notice of pre‑trial admissions must indicate what evidence, as set out in the notice of pre-trial admissions, is agreed to be admitted as evidence without further proof and what evidence is in issue and, if issue is taken, the basis on which issue is taken.

(4) Despite subsections (2) and (3), the accused is not required to state—

(a) the identity of any witness (other than an expert witness) to be called by the accused; or

(b) whether the accused will give evidence.

313. The forerunner to these pre-trial case management provisions was contained in the Crimes (Criminal Trials) Act 1999, one purpose of which was to ‘improve the efficiency of criminal trials’.^[52] Sections 6 and 7 of that Act were, relevantly, the same as ss 182 and 183 of the CPA. Parliament explained that the intention behind requiring the defence to respond to the summary of prosecution opening and notice of pre-trial admissions was —

that the defence address those issues in a manner that ensures that it is clear to both parties and the court which issues will be in dispute in the trial.^[53]

314. The seriousness of that intention is reinforced by ss 184 and 185 (and their statutory counterparts in the 1999 Act) which impose a continuing obligation of disclosure up to trial and require a party to inform the court and the other party, in advance of trial, if that party intends to depart from their disclosure.
315. It is plain from the text of s 233(2) of the CPA^[54] that its operation is to be construed in the context of the disclosure requirements of ss 182 and 183. That is plain because of the express requirement that the foreseeability of the evidence given by the accused is to be judged by reference to the responses made by the accused to the summary of prosecution opening and the prosecution’s notice of pre-trial admissions. Further, s 233(2) is a supplement to s 233(1) which empowers the trial judge to grant leave to either party to introduce evidence not disclosed by them under pt 5.5 if the opposite party substantially departs from their case as disclosed in their documents served and filed in accordance with the Part. Taken together, as the heading to s 233 itself indicates,^[55] the two subsections empower the Court to allow evidence to be introduced if evidence is introduced by the other party that had not previously been disclosed as required under pt 5.5.
316. This is not to ignore, of course, pt 5.7 of the CPA which, relevantly, provides for the course of the trial which, in div 5, preserves the orthodox entitlement of the accused to respond after the close of the prosecution case by submitting there is no case to answer, giving or calling evidence or not giving or calling evidence.
317. How does the statutory rule compare to the common law principles for permitting the prosecution to re-open its case? Clearly, both rules involve the exercise by the trial judge of a discretion. Nevertheless, Parliament, presumed to be cognisant of the existing common law rule,^[56] did not to employ the same language or erect the same threshold to the exercise of statutory discretion as found in the common law principles. Parliament could have enshrined the common law principles in statute, but it chose not to. Given that the new statutory rule is housed within a regime that significantly altered the content of disclosure an accused must give before trial, it is not surprising that the legislature decided to take a different approach.
318. Accordingly —
     • (1) Whereas, at common law, the unforeseeability of the defence was a ‘circumstance’ that may qualify as ‘very special or exceptional’ so as to justify allowing the Crown to re-open, under statute, the singular gateway to the trial judge’s discretion is that the evidence ‘could not reasonably have been foreseen by the prosecution’; and
     • (2) Whereas the common law rule defied any rigid formulation, and the sources of information by reference to which a trial judge may assess the exceptional nature of the circumstances were at large, the statute directs the judge to assess the reasonable foreseeability of the accused’s evidence by reference to two specified sources of information — the accused’s response to the summary of prosecution opening and notice of pre-trial admissions ‘as served on the prosecution and filed in court’.
319. On his argument for leave to appeal, the applicant contended:

     (a) Section 233(2) should not be construed as confining the trial judge to looking at only the accused’s response to the summary of prosecution opening and notice of pre-trial admissions for ascertaining whether the subject evidence could not reasonably have been foreseen by the prosecution;

     (b) Alternatively, even if that is the proper construction for the purpose of determining whether the gateway to the judge’s discretion has been opened, when exercising that discretion the judge would be entitled to take into account the reasonable foreseeability of the accused’s evidence having regard to other material;

     (c) The common law requirement that the circumstances should be exceptional before the discretion is exercised in favour of the prosecution is still an appropriate guideline for the exercise of the statutory discretion.

320. Although s 233(2) does not, in express terms, specify that the judge should only have regard to the two defence responses when determining whether the accused’s evidence should reasonably have been foreseen by the prosecution, in my view that is the clear implicit intention. Parliament has not used an inclusive definition of the factors to be considered. Parliament intended that pt 5.5 (and its predecessor) should improve the efficiency of criminal trials. As already observed, the subsection exists in the context of a mandatory requirement that the accused ‘must’ serve and file responsive documents that identify the ‘acts, facts, matters and circumstances with which issue is taken and the basis on which issue is taken’.^[57] That requirement only has teeth if there is a consequence for not doing so (and a remedy for the affected party). One is found in s 233(1) and another in sub-s (2).
321. The view that the sub-s is intended to reinforce the requirement imposed by s 183 is bolstered by the stark words in s 233(2) ‘as served on the prosecution and filed in court’. These words exclude the possibility that the Court can have regard to unserved and unfiled responses when considering the reasonable foreseeability of the accused’s evidence. Even more so, then, must the judge disregard informal discussions or matters recorded on transcript for the purpose of deciding this gateway issue.
322. That said, apart from the very circumstance that enlivened it, there is nothing in the section to constrain or guide the exercise of the judge’s discretion once it is enlivened. In addition to considering the reasons for and impact of the unforeseeability of the accused’s evidence, when exercising the discretion the judge ought to give significant weight to the factors that have been found to be important under the common law: namely, the principle of fairness that the prosecution should, ordinarily, present its case to conclusion until the accused is called upon to make an answer, and should not be permitted to split its case on any issue.
323. So, for example, even though the discretion is enlivened, the discretionary justification for permitting the evidence may be significantly reduced if, by reference to other factors and material, it is apparent that the accused’s case was more readily foreseeable than when judged from the filed and served responses alone. Considerations of fairness to the accused may then dictate that permission to reopen be refused.
324. But I would refrain from reintroducing the overlay of the common law on the statutory rule. I would not qualify the discretion conferred under s 233(2) by imposing any requirement that the circumstances must be ‘exceptional’ or ‘very special’, even if only as a guideline. As I have observed, Parliament chose to introduce a different test in the context of a different disclosure regime than that which existed when Shaw, Killick and Chin were decided.
325. As the passage from Chin extracted above at [309] reveals, there was a connection between the need for the accused to know fully the case which case they had to answer, what questions to ask, what objections to raise and what evidence to call, on the one hand, and the exceptional nature of the permission given to the prosecution to adduce further evidence, on the other. Now that the prosecution is required to give more disclosure of its case and the accused is required to provide substantive and informative responses, weaker is the argument for confining the grant of permission for the prosecution to reopen its case after an accused gives unforeseeable evidence to an occasion that is ‘exceptional’.
326. Even so, the trial judge must exercise the discretion with great care and caution. The dangers of allowing the prosecution to reopen are the same under the statutory rule as they are under the common law. For example, the evidence allowed to be given might assume an inflated importance, and the timing of it being adduced may mean it is the last thing the jury hears.
327. Some attention should also be given the adverb ‘reasonably’ which qualifies what could ‘have been foreseen’. It is relevant both to the satisfaction of the condition that enlivens the discretion and to the exercise of that discretion. Considered alone, ‘reasonably’ connotes both being agreeable or amenable to reason and moderateness or lack of excessiveness.^[58] In the law of negligence, the phrase ‘reasonably foreseeable’ has an established meaning in that jurisprudence, being a degree of foresight that proceeds from the viewpoint of the reasonable person and is confined to what is not farfetched or fanciful.^[59] In my view, in the setting of s 233, that which can be reasonably foreseen is limited to things which are foreseeable by a person using reason without being expected to use extraordinary foresight. Overall, the adverb signifies that the criterion is meant to operate fairly to both sides so far as that can be achieved.
328. For completeness, it did not appear to be disputed that, alongside the statutory rule, the common law basis for an application to reopen the prosecution case remains available. Section 233(3) provides that nothing in the section limits any other power of the trial judge to allow the prosecutor to call evidence after the close of the prosecution case. It is not necessary to consider situations in which it will be necessary to invoke the common law principle. It is sufficient to observe that s 233(2) is confined to the situation which the accused person gives the evidence in the defence case that is not reasonably foreseeable.
329. In summary:
     • Section 233(2) does not replicate the common law principle for permitting the Crown to reopen its case;
     • A relevant context of s 233(2) is the disclosure regime in pt 5.5 of the CPA so that its construction and application should be consistent with the requirement that an accused must identify those of the matters disclosed by the prosecution with which the accused takes issue, and the basis for doing so;
     • Another relevant context is pt 5.7 of the CPA which prescribes that the orthodox sequence of events is that all of the prosecution evidence is called before the accused responds or makes choices about their response;
     • The reasonable foreseeability of the accused’s evidence is to be judged solely by reference to the disclosures served and filed on the prosecution in accordance with s 183, considered from the viewpoint of a person applying reason without requiring extraordinary foresight;
     • Once the discretion to reopen has been enlivened, however, when exercising that discretion the judge may take into account, among other things, any other material that may have reasonably alerted the prosecution to the evidence which the accused has in fact given;
     • Before allowing the prosecutor to reopen its case, in the exercise of the discretion, it is not necessary that the trial judge find the circumstances to be either exceptional or very special, but nevertheless must apply the discretion with care and caution to strive to achieve a balance of fairness to both the prosecution and the accused; and
     • Section 233(3) preserves the operation of the common law rule so that the two rules operate in parallel.

Application to the facts of this case

330. During the course of argument the trial judge commented that the law on s 233 was ‘very unclear’ and said that he intended to ‘apply the exceptional circumstance test, even though that’s probably harsh on the Crown’. As he explained in his ruling, whether or not s 233(2) required that the circumstances be exceptional, the judge used that standard for the purpose of applying the statutory test. Accordingly, he continued, had he been required to exercise the discretion at common law, he would also have permitted the Crown to reopen its case to call the surveillance evidence.
331. That approach was understandable in view of the lack of guidance on the interpretation of s 233(2) but, ultimately, it was an overly conservative approach.
332. Accepting, then, that s 233(2) authorised the judge to allow evidence in reply to the accused’s evidence providing the accused’s evidence could not reasonably have been foreseen from the served and filed responses to the prosecution documents, the first step in the analysis is to identify the factual matter that the judge determined had not been properly disclosed about which the applicant had given allegedly unforeseen evidence.
333. Plainly, there was no need for the prosecution to call evidence in reply to the applicant’s admission that he had hired the van from Mini Koala Car Rental. That he did so was the prosecution’s own case, and had been its case from the very outset of the proceeding.
334. If anything was unexpected and unforeseen, it was the evidence that the applicant hired the van for Allouche and delivered it to him — involving two visits to his house in the early hours of 14 June — before returning home and having nothing further to do with it. Equally plainly, in his filed and served responses to the prosecution documents the applicant did not disclose, in conformity with s 183 of the CPA, any basis (ie reason) for disputing the allegation that he used the van to move the boxes of 1,4-BD on 14 June if it was to be accepted that he hired the van (as also alleged) only hours before.
335. Section 183 of the CPA requires the defence in responding to the summary of prosecution opening to ‘identify the acts, facts, matters and circumstances with which issue is taken and the basis on which issue was taken’. No distinction is made between disputing or not admitting issues. Whether one disputes or does not admit a fact, doing either effectively takes issue with it (because there is no agreement) and the prosecution will be required to prove that fact. Either method of taking issue with the fact attracts the requirement of stating the basis on which the issue is taken.
336. It was alleged in paragraphs 66–7 of the summary of prosecution opening that the applicant hired the van at 12:40 am for the purpose of ‘moving boxes’ and, in paragraph 69, that between 1:49 am and 2:01 am the applicant was a passenger in the van at Kennards to move the boxes of 1,4-BD. In his filed defence response, the applicant did not admit to hiring the van and disputed that he was present at Kennards. In respect of both, he took issue. No basis for taking issue with either the hiring or his alleged presence in the van at Kennards was advanced. Pertinently, it was not stated that the basis for taking issue with those allegations was that, although he hired the van, he only did so for Allouche, handed the van over to Allouche and went home with no knowledge of what the van was to be used for. There was nothing else in his filed defence response that came close to notifying the Crown of his intended evidence.
337. Applying s 233(2), the judge was correct to find that, having regard to the applicant’s responses to the prosecution documents (remembering there was no filed response to the notice of pre-trial admissions), the evidence the applicant gave about the purpose of hiring the van, his movements in the process of hiring it and what he did with it after hiring it could not reasonably have been foreseen. In my opinion the judge’s discretion to allow the further prosecution evidence was certainly enlivened.
338. Then the question turns to whether the judge erred in exercising that discretion. At this point it is appropriate to enlarge the scope of the enquiry about the reasonable foreseeability of the applicant’s evidence by reference to the other ‘clues’ which the applicant relied upon in argument before this Court. To summarise, the applicant contended that his evidence given in chief was reasonably foreseeable having regard to:
     • him not admitting, rather than disputing, that he hired the van in his filed defence response;
     • him ‘not disputing’ that he hired the van in the exchange with Judge Fox in the second trial;
     • the suggestion put to Moustafa that Moustafa was the drug trafficker and Allouche was his supplier;
     • the focus given in cross-examination of Moustafa to Moustafa having asked Allouche to organise a van, and about Allouche not being of an age where he could hire a van himself and Moustafa not knowing whether Allouche spoke to the applicant about hiring a van or having some further conversation after Moustafa departed from the applicant late on 13 June;
     • a suggestion put to Moustafa in cross-examination that Allouche had arrived in the van at Kennards;
     • an apparent concern by Mr Walmsely in the second trial to lead evidence to meet a potential argument that the person seen in CCTV footage at the storage facilities was not the applicant but Bchinnati, or perhaps Allouche, after Mr Billings admitted making an error in confusing the two;
     • the unsigned notice of alibi stating that the applicant was at home on the night and morning of 13 and 14 June apart from going to the airport and ‘attending a car rental establishment and returning home’;
     • the informal admission made by the applicant’s solicitor in response to the notice of pre-trial admission that the applicant hired the van;
     • the addition of the fact, in the Agreed Statement of Facts, that Moustafa, Obian and Allouche were known to one another and met occasionally.
339. The reference to a suggestion that Allouche brought the van to Kennards, and to Mr Billings confusing Bchinnati and Allouche, stems from this passage of Mr Billings’ cross examination of Moustafa:

Now, the man — by the way Mr Allouche did not have a licence, correct?---I can’t say if he did or didn’t.

Well, he was dropped off by his partner to you, was he not?---Mr Allouche?

Mr Allouche?---When, what?

Mr Allouche, I suggest arrived in the van, YZP 805?---Mr Allouche didn’t, he wasn't a part of us. There was me, Sam.

- - - sorry, go on?---You’re probably talking about Bchinnati.

Yes, all right, I’m sorry - - -?---Um your client picked him up and they then picked me up.

Mr — yes, I’m at cross-purposes. So Mr Formosa was there, Mr Bchinnati?

---No, not Mr Formosa. I don’t know Formosa. He — he got dragged into it later on.

Yes. And who was the others?---Me, Sam, Omar Bchinnati and Muneer Omer.

Okay. Mr Mr Bchinnati attended in van YPZ 805 at — you met. Where did you meet Mr Bchinnati?---Sam picked Mr Bchinnati up that evening and then they picked me up Blithe [sic] Street Brunswick.

340. As can be seen, Mr Billings appeared to mistakenly put that Allouche had arrived in the van, but immediately accepted Moustafa’s correction that it was Bchinnati who arrived in the van. If anything, Mr Billings’ acceptance that he had mistakenly put Allouche at the scene of the storage facility, with the van, had the effect of dispelling rather than encouraging a view that Allouche was somehow involved with the van that night.
341. In substance, the applicant’s argument is that by examining these clues a person exercising reasonable foresight would conclude that it must have been Allouche who instigated the hiring of the van. I reject that submission. Of course, on appeal, the parties and the Court are able to view matters with the benefit of hindsight. Foresight is a lot easier when the dots which are to be connected are isolated from the host of other dots that fell to be considered prospectively, in real time, and the answer to the conundrum is known.
342. At best, the applicant left an ambiguous and Delphic breadcrumb trail to what his real defence was.
343. The applicant’s ongoing reluctance to state openly and unequivocally that he hired the van, contributed to the impression that his defence to the alleged participation in the moving of the product (that is, the possession of the 1,4-BD which was at the heart of charge 3) was that he had had nothing to do with the van at all. Seen this way, the maintenance of the smoke screen concerning the hire of the van was quite effective in disguising what was his real defence to participation in the movement of the product.
344. Moreover, even drawing together all of the strands now assembled by the applicant, they would still not lead a person reasonably to foresee that it was Allouche for whom the van was hired that evening. The evidence of the surveillance operatives covering Allouche’s house on 14 June was contained in the hand-up brief. The defence did not seek to test their evidence at committal. Even if it was ‘predictable’ that the applicant might say that he handed the van onto some associate after hiring it, the known existence of the surveillance operatives’ evidence concerning the surveillance of Allouche that morning militated against any reasoning that the applicant might nominate Allouche as that person.
345. In the face of the statutory requirements to spell out the basis of any critical defence, the applicant’s postulated form of Delphic notification was woefully inadequate. The construction of the words, ‘could not reasonably have been foreseen by the prosecution having regard to ... as served on the prosecution and filed in court’ in s 233(2) does not extend to embrace the sort of clever speculation that would be required to arrive at the real basis of the applicant’s defence from this obscure trail of clues. If the applicant was intending to be opaque about the true basis of his defence right to the very end, then he succeeded. But that is against what the statute required. He can hardly complain afterwards that, having successfully disguised his true defence in breach of the requirements of the CPA, the Crown is permitted by the same statute to reopen its case to meet the defence which had been so effectively obscured.
346. For these reasons the judge did not make any error in exercising his discretion in favour of the prosecution even taking into account the other clues that were or might have been drawn to his attention. Insofar as the applicant argued that the discretion was wrongly exercised because the judge did not take into account (because he was not informed) that the Crown had prior knowledge the applicant would or might admit that he hired the van, that argument must be rejected for the reasons given in connection with ground 2 discussed below.
347. Before turning to the argument on ground 2 concerning the first alleged irregularity in the trial, it is convenient to deal with the submission made by the applicant concerning the judge’s finding that, had he been required to exercise the discretion at common law, he would have allowed the prosecution to reopen its case.
348. It is clear that the judge did not make his decision on the common law basis. Saying that he ‘would have’ done so if required is not the same as saying that he did. He squarely allowed the surveillance evidence based on the discretion authorised under the statute. But, he explained that in applying the statute he would give the applicant the benefit of common law standard of requiring an exceptional circumstance. For reasons already explained, this ‘higher’ standard was unnecessary. Therefore, I accept the applicant’s submission that, in the circumstances, it is not necessary to address this ground of appeal as if the judge had made his ruling on the common law basis.
349. Notwithstanding that it was reasonably arguable, ultimately ground 1 is shown to be without merit. Leave to appeal should be refused.

Did a substantial miscarriage of justice result from the judge determining the application to re-open based upon incorrect propositions?

350. Ground 2 can be addressed quite briefly.
351. In essence, the applicant submitted that:

     (a) The prosecutor repeatedly and erroneously informed the judge that the applicant had always disputed that he hired the van and the first time the Crown heard that he would say that he did so was when he gave his evidence in chief;

     (b) That erroneous position was not corrected by defence counsel (other than to point out that the latest defence response did not admit rather than disputed the hiring);

     (c) The judge expressly incorporated discussion with counsel into his ruling thus the Court should assume that an erroneous approach articulated by the judge in argument had taken root in the judge’s reasoning;^[60]

     (d) Each of the foregoing constituted an irregularity in the trial;

     (e) Acting on the mistaken premise that the Crown had no foreknowledge that the applicant might admit he hired the van, the judge made the ruling which was a radical departure from the system of trial and had forensically devastating consequences for the applicant;

     (f) Thus, the irregularity resulted in a substantial miscarriage of justice.

352. Technically, it might be correct to say that from the contents of the documents filed and served in accordance with s 183 of the CPA alone, the applicant had always put in issue the fact that he hired the van. And, his counsel’s last word to the prosecutor on the subject, at the commencement of the trial, was that the hire of the van remained a fact in issue. Nevertheless, it may be accepted that the prosecution overstated the position with respect to its knowledge that the applicant had ‘always disputed’ that he hired the van, and that the Crown had no prior inkling that he might admit that he hired the van.
353. Crucially, however, that was not the focus of discussion with the judge as the summary of the argument reveals. Rather than demonstrating that the judge acted upon a mistaken apprehension that the Crown was unaware that the applicant would say he hired the van, the discussion between judge and counsel demonstrated that the judge was fixed upon learning what notice had been given that the applicant had hired the van for Allouche, delivered it to him and then gone home. Astutely, the judge repeatedly directed questions about any notification of the purpose of the hire and the involvement of Allouche.
354. The mere fact that the applicant hired the van did not make the evidence about the surveillance of Allouche’s house relevant. It is clear that the judge was aware of that. The judge was correct to say (in discussion) that until evidence was given about the purpose of the hiring and the visits to Allouche’s house, the evidence of that surveillance would have been entirely irrelevant to the issues in the trial.^[61] When the judge said in his ruling he would have exercised his discretion at common law for the reasons that were apparent from his discussion with counsel, he was undoubtedly referring to these matters.
355. It is therefore a distraction to focus on an error in representing the Crown’s knowledge that the applicant might admit he hired the van. Even if it could be characterised as an irregularity — about which I have a real doubt — it certainly did not result in any substantial miscarriage of justice. It was not the fact that led the judge to make his ruling.
356. Had the judge been informed that the applicant had previously prevaricated between denying, not admitting and admitting that he hired the van, the critical issue was why, for whom and what he did with it. Knowing only that the applicant hired the van (as the prosecution evidence itself soundly established) did not rationally lead to the conclusion that he did so for Allouche, and there is no reason to suppose that the judge’s decision would or should have been any different had the applicant’s previous ‘admissions’ been revealed.
357. Notwithstanding that it was reasonably arguable, ultimately ground 2 is shown to be without merit. Leave to appeal should be refused.

Did a substantial miscarriage of justice result from the judge refusing defence counsel leave to speak to the applicant?

358. Ground 3 centres upon the judge refusing defence counsel ‘leave’ to speak with the applicant during the Crown’s application to re-open its case, the hearing of which took place while the applicant remained under cross-examination.
359. The transcript records the following exchange:

MR BILLINGS: The usual rule with respect to speaking to one's client in the course of cross-examination, this has now arisen, I need to get some instructions.

MS BORG: If my friend wants to just - sorry.

HIS HONOUR: No. Well, why do you need instructions, Mr Billings? We're dealing with a matter of law. You have your instructions about the factual substratum we're dealing with. What is it that you need to get instructions about?

MR BILLINGS: Well, - - -

HIS HONOUR: You don't need to be instructed to resist this application.

MR BILLINGS: Not as a matter of - - -

HIS HONOUR: That's part of your responsibility as counsel.

MR BILLINGS: Yes.

HIS HONOUR: You don't need instructions from your client as to what the legal position is with regards to this. The facts are already out; we know what they are. Why do you need instructions?

MR BILLINGS: I'm not asking for instructions with respect to the legal submissions, but - - -

HIS HONOUR: What are you wanting to take instructions in regard to?

MR BILLINGS: Well, I don't want to tell Your Honour.

HIS HONOUR: Well, I'm not going to give you that leave.

MR BILLINGS: All right.

HIS HONOUR: If you're not going to tell me why you want to have an ability to speak with your client during cross-examination, if you want to keep that powder dry, then you don't get the leave.

MR BILLINGS: All right. Yes.

360. Thereafter, defence counsel made the submissions opposing the prosecution’s application, as summarised above. The judge ruled in favour of the prosecutor. Counsel was given leave to speak with his client to explain the ruling and process of the rebuttal evidence as described at [288] above, and defence counsel did so. Cross-examination of the applicant resumed and concluded. The next day, counsel renewed his opposition to the surveillance operatives being permitted to give evidence. The judge adhered to his ruling. The prosecutor called surveillance operative 116. Defence counsel re-examined the applicant who, among other things, gave a more detailed account of what took place with Wang raising the possibility he may have left Mini Koala Car Rental with the van later than when he first estimated.
361. On appeal, the applicant contended that: the judge exceeded the boundaries of his power in purporting to deny counsel leave to speak with his client; the question whether or not counsel speaks to his or her client and the content of those communications is governed only by ethical constraints^[62] and is not amenable to direct control by the court; the Court’s overreach involved a ‘radical departure from the lawful course of a criminal trial and effectively denied the applicant the right to participate in the trial. Accordingly, the judge’s interference involved a departure from the proper processes of the trial. Whether or not it had an impact on the trial outcome, such a departure amounted to a substantial miscarriage of justice.’^[63]
362. First, I am not persuaded that it is beyond the power of the trial judge to control communications between counsel and witnesses, including a party, at critical moments in a trial. In my view the Court has such power as an incident of its inherent power to preserve the integrity of the trial process,^[64] to prevent unfairness,^[65] and to maintain public confidence in the administration of justice.^[66]
363. I do not accept that communications between counsel and a party must solely be the domain of ethical constraints. The relevant ethical rule is designed to protect the integrity of evidence.^[67] There is no reason to suppose that the existence of an ethical rule of conduct for that purpose should exclude a co-existing power of the Court to do the same thing.^[68] A barrister’s primary duty is to the Court in which that barrister appears. In that context, recognising that the Court has a power to control its processes, including by regulating communications between counsel and a party to avoid a potential abuse of process or the appearance of one, does not conflict with the special role counsel occupies as the champion of the party.
364. Secondly, considering the extraordinary nature of the application that was made in this instance, the crucial juncture in the trial, the need at that moment to preserve the integrity of the trial process by avoiding the risk or appearance of the applicant being coached in the evidence he would give, and the special advantage which the trial judge enjoyed after many days of exchanges with counsel to form a view about the dimension of that risk, I am nowhere near convinced that any irregularity occurred by the judge exercising control over communications with the applicant at that particular juncture.
365. Thirdly, and in any event, I reject the contention that, by the applicant being deprived of an opportunity to speak with his counsel to give instructions during the (initial) hearing of the prosecutor’s application, the applicant was effectively deprived of the opportunity to participate in his own trial. I reject that contention for numerous reasons, being:

     (a) The applicant’s counsel and solicitor were already instructed with the evidence the applicant could give concerning the hiring of the van and delivery of it to Allouche, as shown by the evidence led from him in examination in chief;

     (b) The nature of the argument upon the application was one of law, based on those facts already put in evidence and on the disclosures made forecasting that evidence;

     (c) Counsel could not or would not inform the judge of what else he needed to obtain instructions about;

     (d) The applicant was represented by counsel and was present at all times during the argument;

     (e) Counsel and his instructing solicitor were given the opportunity to communicate with the applicant after the ruling to explain its consequences and what would occur next;

     (f) After cross-examination concluded, and before the surveillance operative 116 gave evidence, counsel had a further opportunity to seek instructions and, thereafter, effectively applied to have the ruling overturned, raising any further matter he wished to raise with the benefit of those further instructions (none of which appeared to be new).

366. In the result, the applicant has failed to establish any departure from proper trial processes that would constitute an irregularity within s 276(1)(b) of the CPA, much less one of a serious or fundamental kind that could deprive the applicant of a fair trial and result in a substantial miscarriage of justice.
367. In my opinion, this proposed ground is not reasonably arguable and I would not grant leave to appeal on it.

Was conviction inevitable even without the surveillance operative’s evidence?

368. In answer to grounds 1 and 2 (and possibly also ground 3), the respondent submitted that the applicant’s conviction was inevitable regardless of the admission of the evidence of surveillance operative 116 (and the associated application made to reopen the Crown case). It is for the respondent to articulate the reasoning by which the applicant’s conviction was inevitable; that is, even without the supposed error of allowing the evidence, the jury could not have entertained a reasonable doubt about the applicant’s guilt on all three charges.
369. The respondent relied upon the following strands of evidence:

     (a) The two deliveries of 1,4-BD, undoubtedly ordered by and delivered to the applicant, totalled 16.8 tonnes of product;

     (b) The implausibility of the applicant’s small cleaning company needing 16.8 tonnes of cleaning product (when diluted for use as a commercial cleaning agent, about 170,000 litres);

     (c) The applicant’s purchase of the specific bottles and boxes which were consistent with those in which the 1,4-BD seized in the early hours of 14 June 2016 were packaged;

     (d) Moustafa’s evidence of the applicant’s use of SAA Cleaning as a front to import 1,4-BD for sale as a drug rather than use as a cleaning product, and his involvement in storing the product at Ioannou’s shop and then moving the product on 14 June;

     (e) Ioannou’s evidence of the involvement of ‘Sam’ in renting the florist storage space, and of 1,4-BD found there in the same the boxes and bottles as purchased by the applicant;

     (f) Wang’s evidence that a person matching the applicant’s description, using the applicant’s South Australian licence, hired the van used later that morning to move the boxes of 1,4-BD, informing her that the van was to be used ‘to move a box’;

     (g) The surveillance evidence of those present at Kennards, Racecourse Road and at Ashley Street early on 14 June 2016, including a male wearing a grey windcheater and dark coloured cap;

     (h) The video footage taken from CCTV cameras at the storage facilities and by surveillance operatives at Racecourse Road depicting a person of build and appearance seemingly similar to that of the applicant involved in moving the boxes;

     (i) The evidence of the interception of the Toyota Corolla carrying two occupants and the arrest of only Bchinnati, the other occupant fleeing, and the discovery of the grey jumper and olive coloured cap nearby;

     (j) The forensic evidence providing extremely strong support for the proposition that the DNA on the cap included that of the applicant;

     (k) The deficiency in the alibi evidence to account for the applicant’s movements between 3:30 am and 6:00 am on 14 June 2016.

370. In my view the Crown case, even without the evidence of surveillance operative 116, was extremely powerful. It goes very close to being so powerful that the applicant’s conviction was inevitable even without that evidence.
371. Nonetheless, I am unable to quite reach that conclusion. Despite the circumstances all pointing to the very high likelihood that the 1,4-BD was purchased by the applicant with the intention of it being sold as a drug, and of his involvement in the movement of the product in the early hours of 14 June, I am unable to conclude that, without the evidence of surveillance operative 116, the jury could not have entertained a reasonable doubt as to his guilt.
372. Essentially that is because of the flawed nature of Moustafa and apparent holes in his evidence, and the lack of unambiguous evidence of the applicant’s presence at Kennards, Ashley Street or Racecourse Road on 14 June. True it is that the video footage shows a person of apparently large build being involved; that it was highly incriminating that the person who hired the van said it was to required to ‘move a box’, contradicting the applicant’s evidence of having no knowledge of the purpose of hiring the van; and that a cap containing the applicant’s DNA was found near the abandoned Toyota Corolla.
373. But the only person who positively asserted the applicant was present on 14 June was Moustafa. His overall version of events had some difficulties, and his credit was certainly put under real strain. That does not mean that the jury may not have accepted his evidence on the crucial point of the applicant being present moving the boxes on 14 June, especially since it gained support from other evidence. But, the applicant gave a forceful account before the jury insisting that he purchased the product for legitimate industrial purposes, that he was not present moving the boxes on 14 June despite hiring the van for his friend Allouche, and that it was Moustafa who was the drug dealer who had stolen the product from him and who had implicated him to get a sentencing discount on drug dealing charges including, amongst other drugs, for 3,683 kg of the same 1,4-BD for which the applicant was charged under Charge 3.
374. It is difficult to say with sufficient confidence that a jury could not have entertained a reasonable doubt as to the applicant’s guilt without the credibility of his account being undermined by the evidence of surveillance at Allouche’s house on 14 June.
375. For these reasons, had I been persuaded that there had been an error or irregularity of the kind contended under grounds 1, 2 or 3 I would not have shied from finding a substantial miscarriage of justice only because conviction was inevitable in any event.

Conclusion on the conviction appeal

376. For the various reasons given above, I would refuse leave to appeal on each of the proposed grounds for appealing the convictions.

Application for leave to appeal against sentence

377. As seen from the table at the commencement of these reasons, for the three charges of trafficking a drug of dependence in not less than a commercial quantity the judge sentenced the applicant to a total effective sentence of 17 years and 10 months’ imprisonment with a non-parole period of 12 years and 10 months.^[69] At the time of offending, a commercial quantity of 1,4-BD was 2 kg^[70] and the maximum penalty for the offence was 25 years’ imprisonment. There was no designated ‘large commercial quantity’.^[71]
378. The proposed grounds of appeal, after the abandonment of proposed ground 1,^[72] are as follows:

Ground 2:

The individual sentences, orders for cumulation, total effective sentence and non-parole period are manifestly excessive having regard to all relevant matters, including the applicant’s youth and lack of prior convictions, as well as the delay in the matter being finalised, and the increased burden of imprisonment due to the COVID-19 pandemic; and

Ground 3:

Parity.

379. After setting out the facts upon which he sentenced the applicant, the judge first made findings on the seriousness of the offences for which the applicant had been convicted. In doing so, the judge had regard to the evidence of Detective Senior Sergeant Kahan as summarised above at [238]. The judge adopted the most conservative notional (wholesale) value for 1,4-BD, namely $700 per litre. Adopting that value, the judge determined that the likely notional value of the 1,4-BD the subject of Charge 1 was a little under $560,000 and the likely notional value of the 16,000 kg the subject of Charge 2 was a little under $11.2 million. Since the judge found that the drugs the subject of Charge 3 were, on the balance of probabilities, part of the shipment of drugs the subject of Charge 2, no additional value was ascribed to those drugs.
380. The judge took the view that the offences for which the applicant had been convicted were ‘very serious examples’ of ‘the most serious category of offending of this type’.^[73] He took that view for reasons that were accurately summarised in the respondent’s written case filed in respect of the application for leave to appeal against sentence, namely:

     (a) The quantities of drugs involved were ‘extremely large’, representing the highest known quantity of 1,4-BD trafficked in Victoria or any other Australian jurisdiction. The ‘commercial quantity’ threshold was exceeded: 400 times on Charge 1 (800 kg); an extraordinary 8,000 times on Charge 2 (16,000 kg); and 2,140 times on Charge 3 (4,283 kg).

     (b) The applicant was a willing and knowing participant at the wholesale level of an extensive and successful trafficking operation. In relation to Charges 1 and 2, the applicant was the ‘sole instigator’ whose industry knowledge and position enabled him to take possession of the 1,4-BD destined for sale in the community. In relation to Charge 3, the applicant was the ‘principal offender and directing mind’ who actively participated in moving significant stocks of the drugs in an attempt to conceal them from authorities and enable their sale.

     (c) The offending was sophisticated and involved considerable planning. In relation to Charges 1 and 2, the applicant used his cleaning business to import 1,4-BD from China so that his possession of the drugs appeared to be for a legitimate purpose. Having organised the importation of the 1,4-BD, the applicant collected and stored the drugs, and acquired materials that could be used for their distribution. In relation to Charge 3, the offending was not spontaneous. It involved a degree of planning including, for example, hiring the Toyota HiAce van later used to move the drugs.

     (d) The offending was connected and occurred over 11 months. In effect, Charge 1 operated as a ‘dry run’ to Charge 2, and Charge 3 involved the movement of drugs which were the subject of Charge 2. As such, the offending was protracted.

     (e) The applicant’s sole motivation was financial gain. As outlined above, the conservative notional value of the drugs was $560,000 on Charge 1 and $11,200,000 on Charge 2. There was no evidence of drug addiction or financial pressures which may have explained the offending.

     (f) The potential harm of 1,4-BD to the community was also relevant to assessing the criminality involved. Evidence before the sentencing judge showed 1,4-BD had become a dangerous substitute for GHB, effectively replacing GHB from as early as 2014, and posed a particular risk of lethal overdose due to the delay in 1,4-BD achieving its desired effect.

381. Having determined the seriousness of the offences, the judge turned to the applicant’s personal circumstances and to mitigating factors. In this regard, the judge observed that, although 26 years of age at the time of sentencing, the applicant was between 21 and 22 years of age at the time of committing the offences. The judge summarised the applicant’s stable family background, noted that he had completed Year 12 and a further three years of a four-year civil engineering degree at Swinburne University by the time he was remanded in custody for these offences. He had commenced his own cleaning business — SAA Cleaning Services — which the judge accepted was not created solely for the purpose of importing 1,4-BD the subject of the charges.
382. Additionally, the judge noted:
     • the applicant had no prior convictions (although he had an outstanding matter in relation to a charge of affray allegedly committed on 14 April 2019);
     • the allowance for youth and being of otherwise good character was tempered in cases involving serious drug trafficking;^[74]
     • the applicant spent 75 days custody in relation to that unrelated matter which, while not strictly ‘dead time’ under the Renzella discretion,^[75] would be taken into account ‘in a broad way’;
     • because the importation of 1,4-BD the subject of Charge 1 was a ‘dry run’ for the later and larger importation the subject of Charge 2, and the drugs the subject of Charge 3 were derived from those the subject of Charge 2, all three charges could, in a sense, be viewed as forming part of one continuing act of trafficking;
     • although financial gain was the applicant’s obvious motive in committing the offences, and the potential returns were huge, there was no evidence of him acquiring great wealth or living in extravagant or grandiose lifestyle, nor was there any evidence of 1,4-BD actually being sold to another person;
     • because the applicant faced ‘four trials’^[76] on the charges, there had been substantial delay of four years between offending and conviction, exacerbated by a further delay of nine months between conviction and sentence, none of which were the personal fault of the applicant;
     • the effects of the COVID-19 pandemic would make the experience of serving a sentence more burdensome on the applicant for the foreseeable future;
     • despite having no prior criminal history, due to the applicant’s lack of insight into the seriousness of his offending conduct there was risk of reoffending such that his prospects of rehabilitation were, at best, ‘good’.

Proposed ground 2 (manifestly excessive)

383. In a pithy summary of the applicant’s submission on proposed ground 2, junior counsel for the applicant argued that the sentence of 15 years and 10 months on Charge 2 was ‘quite extraordinary’ in the context of an offence with a maximum penalty of 25 years, involving an offender of only 21–22 years at the time of offending who had no prior convictions. It was ‘just too much’. No specific error was alleged.
384. Moreover, the sentence of 8 years’ imprisonment on Charge 3 for trafficking the same drugs the subject of Charge 2 was excessive. At the least, there ought not to have been any cumulation of that sentence upon the sentence imposed for Charge 2. Indeed, although convicted of Charge 3 counsel submitted that the applicant should have been discharged in respect of that charge under s 73 of the Sentencing Act 1991.
385. As expressed in the text of this proposed ground, the applicant relied upon the mitigating features of youth, lack of prior convictions, delay and the increased burden of imprisonment due to COVID-19.
386. Although, as the respondent pointed out, the judge had taken each of these mitigatory matters into account and had addressed them, the mere fact that a judge purports to take into account all relevant mitigating factors does not, of itself, answer the question whether sentences are — either individually or as a total effective sentence — manifestly excessive. Appellate intervention on the ground that a sentence is manifestly excessive or inadequate is warranted if the appellate court is driven to conclude that there must have been some misapplication of principle despite being unable to identify specific error.^[77]
387. Even so, it is well established that the test for establishing that a sentence is manifestly excessive is stringent and difficult to satisfy: the sentence imposed must be ‘wholly outside the range of sentencing options available’ to the sentencing judge.^[78] Factors which determine whether an individual sentence is manifestly excessive are the same factors which inform the instinctive synthesis in the original sentencing exercise — namely, the objective gravity of the offence, current sentencing practice, the maximum sentence, matters in mitigation and matters personal to the offender.^[79] A judgment formed about manifest excess, as with totality, is often formed as a matter of impression.^[80]
388. There are three matters about the sentences imposed which, at first glance, invite closer scrutiny. The first, as the applicant submitted, is the sheer length of the sentence for Charge 2. Even though the judge correctly took guidance from this Court’s statement in Gregory v The Queen^[81] that ‘sentences well into double figures would have been expected for [commercial quantity] trafficking offences where ... the quantity involved approach the [large commercial quantity] threshold’,^[82] a base sentence approaching 16 years for a first time offender is undeniably a large sentence.
389. Secondly, the sentence of 8 years imposed on Charge 3 when what was involved was the movement of a subset of the same product involved in Charge 2 in an attempt to evade detection, also warrants close attention.
390. Thirdly, there is the matter of totality; that is, standing back and considering whether the overall sentence is just and appropriate.^[83]
391. Turning to the first of the three matters, what attracts some interest here is the extent to which the judge actually allowed for the accepted mitigatory factors, especially the considerable delay and the increased burden of imprisonment due to the pandemic. One can understand that, in accordance with authority, the judge might significantly temper any allowance for the applicant being a first offender^[84] and to his youth and rehabilitation prospects,^[85] given the very nature of this particular drug trafficking, its sophistication and scale. Nonetheless the very high sentence of 15 years and 10 months, after allowance for all the mitigatory factors, raises the question of what sentence could justifiably have been imposed without them.
392. The judge correctly evaluated the seriousness of the offending by reference to features of quantity, role, duration and motivation.^[86] As the judge observed, it is difficult to find particular comparable cases to guide the sentencing discretion in this matter. Nonetheless, there are cases that may serve as yardsticks to illustrate the possible range of sentences available.^[87]
393. In DPP v Moustafa,^[88] this Court increased the sentence imposed on the applicant’s co-offender in respect of a charge of trafficking a drug of dependence (commercial quantity), ‘Charge 2’, from 4 years to 8 years. The Court accepted that Moustafa’s initial sentence of 4 years on Charge 2 was manifestly inadequate.^[89] The events the subject of Charge 2 included (but were not entirely the same as) the events the subject of Charge 3 against the applicant in this proceeding. The quantity of 1,4-BD involved was said to be over 8,000 kg (the combined amount seized on the night of 14 June 2016 plus the further amount located at the Tullamarine storage).
394. Moustafa was 27 years old, had pleaded guilty and, importantly, had given valuable assistance to police in relation to the involvement of the applicant (as is apparent from the evidence he gave in the applicant’s trial). He was sentenced as having a significant yet limited role in the trafficking enterprise, not being the principal or being involved in distilling or selling the drugs. He did have some relevant prior convictions. The Court noted that the relevant offence ‘involved organised crime at a high level. It concerned trafficking in drugs with a street value of tens of millions of dollars’.^[90]
395. In Moustafa the Court also cited a number of previous cases concerning sentences for trafficking 1,4-BD.^[91] Sentences for quantities ranging between 2.0 kg and 35.54 kg yielded sentences ranging between 2.5 and 5 years’ imprisonment. Having regard to the quantity of drug with which Moustafa was charged, described as ‘vast’,^[92] the Court considered that despite all mitigating factors the sentence on Charge 2 ‘had to be, at a minimum, close to double figures.’^[93]
396. It was not suggested in the present case that the judge erred insofar as he took into account the statements of this Court about the need to increase sentences for large commercial quantity drug trafficking^[94] and that the quantity of drugs trafficked is highly relevant (although not determinative) in assessing the objective gravity of the offending.^[95] It seemed not to be disputed that the sentence of 15 years and 10 months was the largest single sentence ever imposed for trafficking a commercial quantity of a drug of dependence under section 71AA. Neither was it disputed that the amount of
     1,4-BD the subject of Charge 2 appeared to be the largest quantity of this drug for which any offender had previously been sentenced in Australia.
397. In all of the circumstances, the judge was well justified in forming the view that he expressed about the objective gravity of the offending. It is an offence carrying a maximum sentence of 25 years’ imprisonment and it is properly to be seen as a very serious example of this very serious type of offence. The sheer quantity of the drug involved was nothing short of massive, thousands of times the commercial quantity threshold. The applicant was the sole instigator of the operation, operating at the wholesale level of the market. His operation was planned and carefully orchestrated. His motivation was purely for profit. And, the duration of offending from arranging the first import, through packaging and storing the product, to the movement of the product on 14 June 2016, was close to 12 months.
398. Based on the authorities,^[96] the judge was entitled in those circumstances to give less weight than otherwise might be given to youth and being of otherwise good character. In taking into account the effects of delay, the judge carefully weighed that delay and considered its effects of adding increased burden of worry and anxiety to the applicant over a considerable period. He gave specific consideration to the pandemic burden in accordance with the correct principles.^[97]
399. Compared to Moustafa, the applicant played a more significant role in the trafficking enterprise. Twice the quantity of drug was involved with twice the potential reward. Further, the applicant was not entitled to the same significant mitigatory allowances for pleading guilty and assisting the prosecutorial authorities. Viewed from that broad perspective, that a judge might impose a sentence on the applicant of nearly twice the length for which Moustafa was sentenced, even after making allowances for personal matters and matters in mitigation, seems less remarkable.
400. Turning to the second of the three matters of interest, I find the sentence on Charge 3 somewhat less explicable. Although the amount of drug involved was 4,283 kg, it was a subset of the same drug that was the subject of Charge 2. Simply possessing them for sale, in the context of the events with which Charge 3 was concerned, did not warrant a repetition of all the same sentencing considerations that justified the very high sentence given for Charge 2 to reflect (again) the community’s denunciation of trafficking commercial quantities of a drug of dependence.
401. That said, the activity of 14 June 2016 stood somewhat apart from the activity of the importation which was the subject of Charges 1 and 2. Even though, as the judge noted, all three charges in one sense formed parts of one continuing act of trafficking, the urgent and planned activity of moving the product from one location to another in the early hours of 14 June 2016, to protect the enterprise, was, in my view, a qualitatively different act of criminality. That discrete criminal activity deserved a discrete, additional penalty to satisfy the sentencing objectives of punishment, general deterrence, denunciation and community protection.
402. The relevance of quantity at this point, however, is significantly ameliorated because quantity has already been taken into account in respect of the sentence for Charge 2.
403. All things considered, I would have thought that a sentence of, perhaps, 4 or 5 years’ imprisonment would have been more appropriate on Charge 3. However, this does not ultimately avail the applicant. Even though I would have been minded to substitute a lesser sentence for Charge 3, I nonetheless consider it would remain appropriate to cumulate one year of that sentence on the sentence imposed for Charges 1 and 2, resulting in no change to the total effective sentence.
404. Finally, as to the third matter of interest, the consideration of totality here largely (but not entirely) reproduces the consideration of manifest excess. There is no question that the judge specifically adverted to the relevant principle.^[98] He acknowledged the ‘fair degree of overlap’ between the discrete offences which he said would be reflected in the sentences imposed and the orders for cumulation, also feeding into the setting of an appropriate non-parole period. He reminded himself to be careful to avoid imposing a crushing sentence.
405. The objectives of retribution, general deterrence and denunciation loomed large in this sentencing exercise. The judge needed to be careful to fix a sentence that would be sufficient, but not more than necessary, to satisfy those objectives, recognising that the severity of a term of imprisonment is an exponential function, not merely linear.^[99] The extent of cumulation of the sentence for Charges 1 and 3 upon the base sentence for Charge 2 is relatively modest. As submitted by the respondent, the total sentence would permit the applicant to be released from custody as early as 38 years of age, so that it could not be said that the sentence destroys his expectation of leading a useful life upon release.
406. For completeness, the non-parole period of 12 years and 10 months is approximately 72% of the total effective sentence, falling within what is referred to as the ‘usual’ non-parole period.^[100] A disposition allowing up to 5 years of parole adequately allows for the applicant’s rehabilitation and transition into the community. There is nothing about the non-parole period which of itself raises a concern.
407. Despite my first-blush apprehension about the sentence on Charge 2, I am not prepared to say that it is wholly outside of the range that was available to the sentencing judge. It is indeed stern but that in itself is not sufficient. Closer consideration of the key features of the offending and the relative weight to be given to the mitigatory factors show that the sentence was justifiable. The objective gravity of the offending warranted a truly substantial period of imprisonment. In short, that this might be an extraordinarily high sentence is sufficiently explicable by the brazen nature of the offending, its scale and the recognised need to impose significant sentences for large scale drug trafficking offences.
408. On the facts of this case, except for the individual sentence on Charge 3 discussed above, the individual sentences on Charges 1 and 2, orders for cumulation and non-parole period, and the total effective sentence, all reflect a principled and justifiable exercise of the sentencing discretion. Neither of the sentences on Charges 1 and 2, nor the total effective sentence, is of such a magnitude that I would be driven to conclude that the judge must have misapplied some principle.
409. Despite my view that the head sentence imposed on Charge 3 is too high, because I would nevertheless arrive at the same total effective sentence even after lowering that particular sentence, I would refuse the application for leave to appeal on proposed ground 2 pursuant to s 280(1)(b) of the CPA.

Proposed Ground 3 (parity)

410. Very little was advanced either in writing or orally on this proposed ground of appeal. Inferentially, the applicant submitted that the sentence of a term of imprisonment of 8 years for Moustafa on Charge 2,^[101] for a rolled up charge involving over 8,000 kg of 1,4-BD found in five different locations, gave rise to a justifiable sense of grievance^[102] on the part of the applicant who was sentenced for more than twice that amount of time.
411. I have already highlighted the similarities and differences between the roles of Moustafa and the applicant, the total amounts of drug involved and the significant mitigatory factors available to Moustafa that were not available to the applicant. Despite its utility in illustrating that a very substantial term of imprisonment may be warranted, with the quantity of drugs being a prominent sentencing consideration, the sentence given to Moustafa on Charge 2 is not a very helpful comparator for parity purposes. Not only did Moustafa plead guilty and have available to him the favourable mitigatory factor of assistance to police, there was a significant difference between the offending with which they were both charged. In particular, there was no commonality between Moustafa’s involvement in more than half of the 8,865 kg of 1,4-BD with which he was charged and the applicant’s involvement in the drugs with which he was charged.
412. In my view, this proposed ground is not reasonably arguable and leave to appeal on it should be refused.

Extension of time to apply for leave to appeal

413. As earlier indicated, the applicant requires an extension of time in which to apply for leave to appeal against conviction and sentence. The respondent opposes any extension of time.
414. The applicant was convicted on 30 July 2019 and sentenced on 26 June 2020. Any application for leave to appeal conviction or sentence was due to be filed on 24 July 2020.^[103] His applications for an extension of time in which to file an application for leave to appeal conviction and sentence^[104] were filed on 16 November 2021, supported by an affidavit of his solicitor, Theano Milides, sworn on the same date.
415. In Madafferi v The Queen,^[105] this Court set out general principles relating to applications for extensions of time. Relevantly, the Court emphasised that time limits exist for sound reasons and an extension of time is at the discretion of the Court. The applicant carries the burden of persuading this Court to exercise that discretion. Generally, the Court will balance the appeal’s prospects of success with the extent and reasons for delay in filing.
416. Each application for leave to appeal in this matter requires an extension of time of approximately 16 months when the period in which to apply for leave to appeal was only 28 days. In each case, the delay is significant.
417. The reasons given for the delay may be summarised as follows:
     • The fact of there being five trials made the gathering and assembling of all evidence problematic;
     • The applicant retained different solicitors to his trial solicitors for the purpose of making the application for leave to appeal, formally retaining the new solicitors on 23 July 2020 (the day before an application was due) and the process of gathering relevant materials from the trial solicitors was hampered by the impact of COVID-19 and solicitors not being in their offices;
     • Requests for transcripts from VGRS involved a significant amount of correspondence;
     • Obtaining rulings and materials from judges’ chambers required numerous exchanges of communications;
     • Requests for materials from the Office of Public Prosecutions was hampered by the fact that staff were working from home due to COVID-19;
     • The deponent was reluctant to contact trial counsel as he had been diagnosed with a serious health issue;
     • The delay in assembling materials with which to brief counsel to prepare the applications for leave to appeal hampered the solicitor’s ability to provide an estimate of fees for doing so;
     • After initially engaging senior counsel for advice, junior counsel was retained for advice in order to moderate fees but there were delays in that junior counsel’s availability;
     • After obtaining certain advice about prospects for appeal, from both senior and junior counsel, a new senior counsel was retained in mid-2021;
     • At the urging of the new senior counsel, an attempt was made to obtain the assistance of trial counsel who declined;
     • Written advice was ultimately obtained from new senior counsel on 12 August 2021;
     • Funding was put in place between August and October 2021 for the written case applications to be drafted;
     • A final conference was held with the applicant on 4 November 2021 to approve the materials upon which the applications for leave to appeal and extensions of time were to be made.
418. The respondent’s basis for resisting the applications for extension of time is that the explanation for the substantial delay is unsatisfactory, for four principal reasons: firstly, that the applicant has not made any affidavit himself; secondly, the applicant delayed instructing new solicitors; thirdly, there are unexplained gaps of weeks or months in the material proffered as explaining the delay; and, fourthly, scarce explanation is given why the applicant had to pursue afresh material that should have been in his possession or that of his previous legal representatives.
419. Whilst there is some cause for concern on the matters raised by the respondent, particularly the third and fourth points above, the applicant (through his new solicitor) has provided a detailed history of the efforts made to gather relevant materials which appears to have been beset with unusual problems. Further, as argued in the materials, the applicant has wished to avail himself of second and third opinions as to his prospects of appeal, particularly on conviction. As indicated by the discussion in these reasons, the points raised on the application for leave to appeal conviction are not straightforward, and involve the consideration of some legal principles that have received little past attention.
420. Balancing all matters, in my view the outcome of the applications for extension of time are ultimately to be determined upon the merits of the two applications for leave to appeal. Thus:

     (a) Although for the reasons given, I would refuse leave to appeal on each of the grounds for appealing the convictions, two of the proposed grounds of appeal were reasonably arguable. An extension of time in which to file the application for leave to appeal the convictions should therefore be granted.

     (b) Because I would refuse leave to appeal on both proposed grounds on the sentence appeal, for the specific reasons given in each case above, I would also decline to grant an extension of time in which to file the application for leave to appeal sentence as it would be futile to do so.

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^[1] Drugs, Poisons and Controlled Substances Act 1981, s 71AA. The maximum penalty is 25 years’ imprisonment.

^[2] Following a plea in mitigation, on 26 June 2020 the judge sentenced the applicant to five years’ imprisonment on charge 1; 15 years and 10 months’ imprisonment on charge 2; and eight years imprisonment on charge 3. One year of the sentences on each of charges 1 and 3 was ordered to be served cumulatively with the sentence on charge 3, the base sentence. The total effective sentence was thus 17 years and 10 months’ imprisonment, upon which the sentencing judge fixed a non-parole period of 12 years and 10 months.

^[3] See the definition of traffick in s 70(1) of the Drugs, Poisons and Controlled Substances Act 1981.

^[4] See, e.g., R v Holman [1982] VicRp 46; [1982] VR 471, 475–6; R v Giretti (1986) 24 A Crim R 112, 125–6.

^[5] The printed name on the licence is ‘Saer Pbian’, but the handwritten signature of the licence holder appears to be ‘Saer Obian’. In his evidence, the applicant explained that ‘Pbian’ was a ‘misprint’.

^[6] This number was connected to a Vodafone account registered to ‘Saer Obian, Glenora Avenue, Coburg’.

^[7] The relevant Agreement To Rent records the customer as being ‘Saer Pbian’.

^[8] Given the manner in which the evidence was adduced, s 114 of the Evidence Act 2008 had no application.

^[9] Emphasis added.

^[10] R v Chin [1985] HCA 35; (1985) 157 CLR 671 (‘Chin’).

^[11] Lawrence v The Queen [1931] ArgusLawRp 87; (1981) 38 ALR 1 (‘Lawrence’).

^[12] Killick v The Queen [1981] HCA 63; (1981) 147 CLR 565 (‘Killick’).

^[13] Emphasis added.

^[14] Emphasis added.

^[15] See [50] above.

^[16] Sir Gregory Gowans, The Victorian Bar — Professional Conduct, Practice and Etiquette (Law Book Co, 1979), 75. And see Sheppard, Communications with Witnesses Before and During their Evidence, (1987) 3 Australian Bar Review 28, 36–7.

^[17] Minutes of Bar Council [16 November 1967].

^[18] The rules are made pursuant to the Legal Profession Uniform Law Application Act 2014.

^[19] [2013] FCA 1216 (‘Ladu’).

^[20] Ibid [15]–[16].

^[21] Abbott (a pseudonym) v The Queen [2017] NSWCCA 149 (‘Abbott’) (emphasis added).

^[22] Ibid [23]–[25].

^[23] [2013] FCA 1216.

^[24] Potier v R [2015] NSWCCA 130 at [576]–[581] (Ward JA, Simpson and Wilson JJ agreeing).

^[25] Potier v The Queen [2015] NSWCCA 130 (‘Potier’).

^[26] Ibid [578]–[582].

^[27] See, e.g., Jago v District Court (NSW) [1989] HCA 46; 168 CLR 23, 74 (Gaudron J) (‘Jago’).

^[28] CPA, s 276(1)(b).

^[29] Baini v The Queen [2012] HCA 59; (2012) 246 CLR 469, 481 [33] (French CJ, Hayne, Crennan, Kiefel and Bell JJ) (‘Baini’).

^[30] See [7] and [73] above.

^[31] Chin [1985] HCA 35; (1985) 157 CLR 671, 684 (Dawson J); [1985] HCA 35.

^[32] Killick (1981) 147 CLR 565; [1981] HCA 63; Chin (1985) 157 CLR 671; [1985] HCA 35.

^[33] [2021] VSCA 283 (‘Alfarsi’).

^[34] Ibid [31] (Priest, Kaye JJA and Lasry AJA).

35. ^[35]The phrase ‘drug of dependence’ is defined in s 4 of the DPCSA to mean, inter alia, a drug ‘specified in Column 1 of Part 3 of Schedule 11’. That column includes the entry: ‘1,4 Butanediol (also known as 1,4-BD) (except for a lawful industrial purpose and not for human consumption)’.

^[36] It was common ground that 1 litre of 1,4-BD weighs 1 kg with volume and weight used interchangeably in evidence.

^[37] Contrary to s 71AA of the DPSCA.

^[38] See above n 5.

^[39] A notice of alibi other than for a summary hearing must be served in accordance with the requirements stipulated by s 190 of the CPA. Section 190(2) specifies that a notice of alibi must be given by serving the notice on the DPP within 14 days after: (a) the day on which the accused was committed for trial on the charge to which the alibi relates, or (b) if paragraph (a) does not apply, the day on which the accused received a copy of the indictment.

^[40] CPA, s 183.

^[41] After an amendment made with leave, the applicant abandoned some of his proposed grounds and added others. Proposed ground 3 (as renumbered) concerns the judge’s refusal to permit defence counsel to speak with the applicant during the debate about re-opening the Prosecution case, that is, while the applicant remained under cross-examination. Although contextually linked to grounds 1 and 2 (as renumbered), it will be analysed separately below.

^[42] The excess weight over 800 kg is attributable to the weight of the pallets and the barrels used for transportation of the shipment of 1,4-BD.

^[43] Moustafa replied that the applicant told him it was fake, ‘he’s got no contracts everything was fraudulent just to import the GHB from an accountant who’s next door to him, probably 5, 6, 7 houses down’.

^[44] See list above at [140]

^[45] Evidence Act 2008, s 101A.

^[46] By agreement between the parties, any evidence which Surveillance Operative 26 could give was led through this witness.

^[47] [1952] HCA 18; (1952) 85 CLR 365 (‘Shaw’).

^[48] Shaw [1952] HCA 18; (1952) 85 CLR 365, 379–380.

^[49] Killick (1981) 147 CLR 564, 569.

^[50] Chin [1985] HCA 35; (1985) 157 CLR 671, 685–6.

^[51] Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue  [2009] HCA 41 ; (2009) 239 CLR 27, 46–47 [47] (Hayne, Heydon, Crennan and Kiefel JJ);  [2009] HCA 41. 

^[52] Crimes (Criminal Trials) Act 1999, s 1 (repealed).

^[53] Explanatory Memorandum, Crimes (Criminal Trials) Bill, cl 7.

^[54] See [139] above.

^[55] The heading to s 233 is ‘Introduction of evidence not previously disclosed’.

^[56] Dennehy v Reasonable Endeavours Pty Ltd [2003] FCAFC 158; (2003) 130 FCR 494, [16] (Madgwick, Finkelstein and Dowsett JJ); [2003] FCAFC 158.

^[57] See Alfarsi [2021] VSCA 283, [31], set out in [102] above in the reasons of Niall JA.

^[58] Macquarie Dictionary, Macquarie Dictionary Publishers, 2023.

^[59] Wyong Shire Council v Shirt (1980) 146 CLR 40; [1980] HCA 12.

^[60] Relying on R v Baini [2011] VSCA 298; (2011) 33 VR 252, [48] (Warren CJ).

^[61] See, in particular, the discussion summarised at [291] above.

^[62] See Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW), r 73 (‘r 73’).

^[63] Relying upon Baini [2012] HCA 59; (2012) 246 CLR 469, [34]; [2012] HCA 59.

^[64] Walton v Gardiner (1993) 177 CLR 378, 392–3; [1993] HCA 77 (‘Walton’). See generally on inherent powers, Chairperson of the Royal Commission into the Management of Police Informants v Director of Public Prosecutions Victoria [2020] VSCA 184, [48]–[51] (Beach, McLeish, Weinberg JJA).

^[65] Jago [1989] HCA 46; (1989) 168 CLR 23, 28 (Mason CJ); [1989] HCA 46.

^[66] Moevao v Department of Labour [1980] 1 NZLR 464, 481 (Richardson J), cited with approval in Jago [1989] HCA 46; (1989) 168 CLR 23, 29–30 (Mason CJ); Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509, 520 (Mason CJ, Dawson, Toohey, McHugh JJ); [1992] HCA 34; Walton (1993) 177 CLR 378, 394 (Mason CJ, Deane, Dawson JJ); [1993] HCA 77; Ridgeway v The Queen (1995) 184 CLR 19, 62 (Toohey J), 74 (Gaudron J); [1995] HCA 66; Nicholas v The Queen [1998] HCA 9; (1998) 193 CLR 173, 256 (Kirby J); [1998] HCA 9.

^[67] R 73 appears under a heading ‘The integrity of evidence’.

^[68] See D’Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1, [111] (McHugh J) referring to a means by which the administration of justice may be obstructed as being when a barrister coaches a client as to the evidence they should give.

^[69] DPP v Obian [2020] VCC 915 (Judge Trapnell) (‘Reasons for Sentence’).

^[70] DPSCA, Part 2, Schedule 11.

^[71] A ‘large commercial quantity’ has since been specified as 20 kg in Part 1, Schedule 11 of the DPCSA.

^[72] Proposed ground 1 was a complaint about the judge’s assessment of the applicant’s rehabilitation prospects.

^[73] Reasons for Sentence, [48].

^[74] Ibid, [71].

^[75] That is, the discretion to make an allowance for unrelated pre-sentence detention described in
R v Renzella [1997] 2 VR 88, 96–97.

^[76] In fact, there were five trials as set out above at [145].

^[77] R v Pham [2015] HCA 39; (2015) 256 CLR 550, 559 ([28] (French CJ, Keane and Nettle JJ); [2015] HCA 39 (‘Pham’); DPP (Vic) v Dalgliesh [2017] HCA 41; (2017) 262 CLR 428, 447–8 [59] (Kiefel CJ, Bell and Keane JJ); [2017] HCA 41 (‘Dalgliesh’).

^[78] Clarkson v The Queen [2011] VSCA 157; (2011) 32 VR 361, [89]; [2011] VSCA 157; DPP v Karazisis [2010] VSCA 350; (2010) 31 VR 634, [127]–[128]; [2010] VSCA 350; DPP v Macarthur [2019] VSCA 71, [58]–[60].

^[79] Azzopardi v The Queen [2011] VSCA 372; (2011) 35 VR 43, (‘Azzopardi’), [58]; [2011] VSCA 372.

^[80] Ibid [58].

^[81] [2017] VSCA 151; (2017) 268 A Crim R 1 (‘Gregory’); [2017] VSCA 151.

^[82] Gregory [2017] VSCA 151; (2017) 268 A Crim R 1, [98].

^[83] Mill v The Queen [1988] HCA 70; (1998) 166 CLR 59, [63]; [1988] HCA 70.

^[84] Reasons for Sentence, [71]: see Azzopardi (2011) 35 VR 34, [46]–[49].

^[85] Reasons for Sentence, [71]; see R v Leroy [1984] 2 NSWLR 441, 446–7; Samuels-Orunmwense v The Queen [2015] VSCA 152, [88].

^[86] Reasons for Sentence, [49], see Gregory [2017] VSCA 151; (2017) 268 A Crim R 1, [24].

^[87] Pham [2015] HCA 39; (2015) 256 CLR 550, 560 [29]; Dalgliesh [2017] HCA 41; (2017) 262 CLR 428, 445 [52].

^[88] DPP v Moustafa [2019] VSCA 331 (‘Moustafa’).

^[89] Ibid [90].

^[90] Ibid [91]. The reference to ‘tens of millions of dollars’ is explained in fn 18 wherein the wholesale value attributed to the 1,4-BD was between $11 million and $20 million with a street value between $33 million and $50 million.

^[91] Ibid fn 19. When sentencing the applicant, Judge Trapnell also had regard to other cases listed in his reasons for sentence at [83], including those surveyed by this Court in Ellis v The Queen [2018] VSCA 221, [29].

^[92] Ibid [65].

^[93] Ibid [94].

^[94] Gregory [2017] VSCA 151; (2017) 268 A Crim R 1, 25 [102]; Nguyen v The Queen [2019] VSCA 184, [49].

^[95] DPP v Fatho [2019] VSCA 311, [70].

^[96] See above nn 84, 85.

^[97] Reasons for Sentence, [81]; see Brown v The Queen [2020] VSCA 60, [48].

^[98] Reasons for Sentence, [94].

^[99] Azzopardi (2011) 35 VR 34, [61]–[62].

^[100] Romero v The Queen [2011] VSCA 45; (2011) 32 VR 486, 493 [25]; [2011] VSCA 45.

^[101] See above at [393].

^[102] Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46; Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26.

^[103] CPA, ss 275, 279.

^[104] Ibid s 313.

^[105] [2017] VSCA 302, [11].