R v Chin [1985] HCA 35; (1985) 157 CLR 671 (29 May 1985)

HIGH COURT OF AUSTRALIA

THE QUEEN v. CHIN [1985] HCA 35; (1985) 157 CLR 671

Criminal Law - Evidence

High Court of Australia
Gibbs C.J.(1), Mason(2), Wilson(1), Brennan(3) and Dawson(4) JJ.

CATCHWORDS

Criminal Law - Procedure - Reopening of Crown case after closing of defence - Rule against splitting of case by prosecution.

Evidence - Cross-examination by prosecution to elicit evidence that could have been tendered in chief - When permissible - Proof of document in cross-examination - Tender of document.

HEARING

1984, December 6; 1985, May 29. 29:5:1985
APPEAL from the Supreme Court of New South Wales.

DECISION

GIBBS C.J. and WILSON J. The respondent, Louise Chin, was convicted in the District Court of New South Wales on a charge that on or about 29 August 1982 at Sydney he was knowingly concerned in the importation into Australia of prohibited imports to which s.233B of the Customs Act 1901 (Cth), as amended, applied, to wit, narcotic goods consisting of a quantity of heroin, and was sentenced to imprisonment for fifteen years with a non-parole period of seven years. He appealed to the Court of Criminal Appeal which allowed the appeal and ordered a new trial. From that decision the Crown now seeks special leave to appeal to this Court.

2. The appeal was taken to the Court of Criminal Appeal on a number of grounds. The Court found in favour of the present respondent on the first group of grounds, which related to the course followed by the trial judge in allowing cross examination on certain documents and later admitting one of those documents in evidence as part of the Crown's case in reply, and did not find it necessary to consider the other grounds.

3. The accused was indicted together with one Choo Pen Ben, who was charged that on or about 29 August 1982 at Sydney he did, without reasonable excuse, have in his possession prohibited imports to which s.233B of the Customs Act applied, to wit, narcotic goods consisting of a quantity of heroin which had been imported into Australia in contravention of the said Act. Choo was found not guilty. A second count in the indictment laid against the respondent charged him that on or about 30 August 1982 at Sydney he did without reasonable excuse attempt to obtain possession of prohibited imports to which s.233B of the Customs Act applied, to wit, narcotic goods consisting of a quantity of heroin which had been imported into Australia in contravention of the said Act. He was acquitted of that charge.

4. The Crown case, briefly stated, was as follows. The respondent, who is a resident of Penang, arrived in Australia from Malaysia on 23 August 1982. Choo, who also lives in Malaysia, was, on 29 August 1982, apprehended at Sydney Airport on his arrival from Singapore and was found to be in possession of a suitcase in which was concealed 3.126 kgs of heroin. Choo gave more than one explanation for his possession of the bag; amongst other things, he said that a friend in Singapore had asked him to take the bag to the Hyatt Hotel in Sydney where a man would ring him and arrange to collect it. The police took Choo to the Hyatt Hotel and booked him into a room where, that night, a number of telephone calls were received; one was said to be from the respondent. On the following day the respondent came to the room and was arrested. The Crown case of course was that he had come to pick up the heroin.

5. At the trial both accused gave evidence and it was part of the case for each of the accused that he had had no previous relationship with the other. The Crown must have been aware, from the records made by the police of interviews with the accused, that the case for the accused would proceed along those lines. The Crown had in its possession application forms signed respectively by the respondent and by Choo for the purpose of obtaining visas to enable them to visit Australia. Each form showed a business telephone number of the applicant as 25357. Although it would have assisted the Crown's case against both accused to show that they had had some association in Malaysia, the Crown did not endeavour to prove, as part of its case in chief, that each had referred to the same telephone number on his application form, and did not at that stage tender either form.

6. At the conclusion of the Crown case, the respondent gave evidence. He said that he had been asked by a friend from Penang, who knew that he intended to visit Australia, to meet Choo who, it was said, did not speak English, and to show him around and entertain him. In the course of a long cross examination, he was questioned briefly about the application form and the form was marked for identification. He was not asked about the telephone number that appeared on the form, but was later shown a business letterhead which bore the number 25357, and said that that was the number of his father's escort agency, as well as the number of his own business. He was not, however, questioned about the fact that the same telephone numbers appeared on the two application forms - a fact that was not established by evidence until after the respondent had closed his case.

7. After the respondent had closed his case, the accused Choo gave evidence. He was cross-examined as to his application for a visa. He acknowledged his signature and admitted that the application form referred to the telephone number 25357, but stated that the form had been filled in for him and that he could not read it. Objection to further cross examination was taken by counsel for both of the accused on the ground that the application form was not Choo's document since he could not understand the language (English) in which it was written. In the course of argument the Crown Prosecutor said that it was his intention to tender the document in due course, adding that it could not have been tendered in chief. He indicated that he intended to seek an explanation from Choo concerning, amongst other things, the telephone number. The objection was overruled. The application form signed by Choo was marked for identification and cross examination proceeded. Choo repeated that he did not know why the number was on the form and said that he did not know of the escort agency conducted by the respondent's father.

8. On the following day of the trial counsel for both accused applied for the discharge of the jury on the ground that the accused had been unfairly prejudiced by the evidence regarding the telephone number. The application was rejected. The learned trial judge then discussed with counsel the tendering of the application forms in the Crown's case in reply, and we were informed (although the transcript does not reveal it) that the learned trial judge indicated (for reasons which are immaterial for present purposes) that he would reject the tender of the form signed by the respondent.

9. After the case for Choo had closed the Crown Prosecutor, as part of the Crown's case in reply, tendered the application form signed by Choo. The document was admitted and the learned trial judge ruled that it was admissible only against Choo.

10. Counsel for the respondent then obtained leave to recall the respondent with regard to the question of the telephone number. The respondent said that the telephone with the number 25357 was located on the bar counter in the premises of his father's escort agency and was available to the public rather like a red telephone in Australia. When asked in cross examination to explain why the number 25357 appeared on Choo's application he replied:

"Any person could have got the telephone number
because the telephone that is on the counter, the
numbers is visible, anybody who goes to the Escort
Agency can see. So if it did appear it is not to
my knowledge or not to my concern."
denied, that he was aware that the telephone number was being used by Choo in his application to enter Australia; this was the first occasion during the case on which such a suggestion had been made to him.

11. In the course of the summing up the jury were directed that the application form signed by Choo was not admissible against the respondent. That was too favourable to the respondent; if the application form was rightly admitted at that stage of the proceedings it was admissible against both accused. Evidence that the respondent and Choo were associated in Malaysia was admissible to prove that the respondent was knowingly concerned in the importation by Choo of the heroin. The fact that they were associated was relevant to that issue although of course not decisive of it. Evidence that Choo had signed the application form showing as his telephone number a number used by the respondent was evidence that the two men were associated, and was therefore admissible. Once it was proved that Choo had signed the application form, the form itself was admissible against the respondent - not of course as an admission, but because the fact that Choo signed a form showing telephone number 25357 as his own number was evidence of his association with the respondent. It would have been a mistake to think that the statement in the form signed by Choo was hearsay; the object of tendering the form against the respondent was not to establish the truth of what was stated in it (namely that the telephone number was in fact that of Choo) but to prove the fact that the statement in the form was made by Choo. The proposition that "a statement is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement, but the fact that it was made" (Mawaz Khan v. The Queen (1967) 1 AC 454, at p 462) is elementary, but often misunderstood.

12. The principles that govern the exercise of the discretion of a trial judge to call evidence after the close of the case for the defence have been discussed in this Court in Shaw v. The Queen [1952] HCA 18; (1952) 85 CLR 365, at pp 378-380, 383-384, Killick v. The Queen [1981] HCA 63; (1981) 147 CLR 565, at pp 568-571, 575-576 and Lawrence v. The Queen [1931] HCA 41; (1981) 38 ALR 1, at pp 3, 7, 22-23. The general principle is that the prosecution must present its case completely before the accused is called upon for his defence. Although the trial judge has a discretion to allow the prosecution to call further evidence after evidence has been given for the defence, he should permit the prosecution to call evidence at that stage only if the circumstances are very special or exceptional and, generally speaking, not if the occasion for calling the further evidence ought reasonably to have been foreseen. The principle applies where the prosecution seeks to call evidence to rebut matters raised for the first time by the defence; if the rebutting evidence was itself relevant to prove the prosecution case (unless, perhaps, it was no more than marginally, minimally or doubtfully relevant: Reg. v. Levy and Tait (1966) 50 CrAppR 198, at p 202) and the need to give it could have been foreseen it will, generally speaking, be rejected. The principle would not prevent the prosecution from giving in reply evidence directed to an issue the proof of which did not lie on the prosecution, such as insanity, or from rebutting evidence of the accused's good character, provided that the prosecution had not anticipated the raising of an issue of this kind and led evidence with regard to it, for the prosecution must not split its case on any issue. Also, it has been held that evidence may be given in reply to prove some purely formal matter the proof of which was overlooked in chief.

13. As has already been shown, the evidence relating to the fact that both accused referred in their application forms to the same telephone number was relevant to the prosecution case and the occasion for giving that evidence could have been foreseen. Within the principle stated, the evidence could not properly have been admitted in rebuttal. However the principle is not a rigid one and there are cases in England that suggest that a trial judge has a discretion to allow evidence relevant to the prosecution's case to be given in rebuttal if, for some reason, it was not available to the prosecution until after it had closed its case: Reg. v. Rice (1963) 1 QB 857, at pp 867-868; Reg. v. Levy and Tait, at p 202; Reg. v. Doran (1972) 56 CrAppR 429. It would seem unduly technical to exclude altogether evidence that was not in the possession of the Crown until after it had closed its case, and the judge may by the exercise of his discretionary powers prevent any unfairness to the accused from arising. It was submitted on behalf of the Crown in the present case that the prosecution would have been unable to prove that Choo had signed the application form if Choo himself had not admitted that fact in cross examination. The form bore Choo's photograph, but that fact did not prove that he had signed it, and the submission made on behalf of the Crown was that it would not have been possible to prove that the signature on the form (which was in Chinese) was that of Choo. On the other hand, it was pointed out by counsel for the respondent that Choo's passport and incoming passenger card had been admitted into evidence and it was suggested that it would have been possible to compare the signature on those documents with the signature on the application form. Not all the material which was put in evidence at the trial was placed before us and it is not possible for us to say whether it would have been possible to compare the signature on the form with the signature on other documents admitted in evidence or whether there were witnesses to the actual signing of the form whose presence at the trial could, as a matter of practicality, have been secured. There is no finding by either the learned trial judge or by the Court of Criminal Appeal that it was not possible, or reasonably practicable, for the prosecution to have introduced the application form in evidence during its case in chief and the material does not permit this Court to hold that it could not have done so. The Crown has not established that it should have been allowed to reopen its case to adduce the evidence as to the telephone numbers.

14. However, the material fact that Choo had signed the form showing the telephone number was elicited in the cross examination of Choo. It has been said in England that the general rule that matters probative of the guilt of the accused should be adduced as part of the prosecution's case applies to matters put in cross examination to a defendant as well as to the calling of evidence: see Archbold's Criminal Pleading, Evidence and Practice, 41st ed. (1982), par.4-408. The principal authority cited for this proposition is the decision of the Court of Criminal Appeal in Reg. v. Kane (1977) 65 CrAppR 270. In this Court, in Lawrence v. The Queen, a different view appears to have been taken (see at pp 3, 8), although the matter was not expressly discussed except in the judgment of Brennan J., at pp.21-22. In principle, it is difficult to accept that the introduction of evidence by means of cross examination of the accused or his witnesses stands in the same position for the purposes of the principles discussed in Shaw v. The Queen as does evidence adduced by calling other witnesses after the close of the prosecution's case. A cross examiner is entitled to ask questions to establish matters relevant to the issues whether or not the witness has deposed to such matters in his examination in chief. Cross examination "is not confined to matters proved in chief; the slightest direct examination, even for formal proof, opens up the whole of the cross-examiner's case": Phipson on Evidence, 13th ed. (1982), p 804; Reg. v. Beckett and Macintosh (1966) QdR 170, at p 171, and see Wigmore on Evidence, Chadbourn rev. (1976), vol.6, par.1885. The cross examination may serve the purpose of confirming the evidence already given by witnesses for the prosecution, but the Crown Prosecutor may also prove, by admissions made by the accused under cross examination, facts which were not proved in chief, whether because it was not possible to prove them, or simply because the Crown Prosecutor failed to advert to them. The trial judge, of course, retains his discretionary powers to ensure that the cross examination is not unfair. In general, it would be unfair to raise, in cross examination, some entirely new matter which was affirmatively probative of the guilt of the accused but which had not been the subject of evidence either at committal proceedings or in the prosecution's case in chief, unless the accused had been given prior notice of such matter. Scarman L.J. (as he then was), said, in delivering the judgment of the court in Reg. v. Kane, at p 274:

"If it (evidence which is capable of forming part
of the affirmative case for the prosecution) did
not form part of the evidence upon which an accused
was committed for trial the practice is to give
notice of the additional evidence to the defence
before it is tendered. Apart from informing an
accused of the nature of the further material it
provides him or his representative with an
opportunity to take any proper objection and the
trial judge with time to consider whether in strict
law or in the interests of justice it should be
admitted or excluded."

Scarman L.J. later added, at p.274:

"This is not of course to be taken as
precluding the examination of a defendant in regard
to all matters not adverted to in the course of the
prosecution case. It is only where those matters
could and should have been adduced as part of that
case that the considerations mentioned necessarily
arise."

15. The evidence that Choo had used the respondent's telephone number in his application form was so material that fairness dictated that the prosecution should have given notice to the respondent of its intention to adduce the application forms in evidence. Had such notice been given, it would have been proper for the judge to have allowed the Crown Prosecutor to cross-examine the respondent regarding this matter, notwithstanding that the matters to which the cross-examination was directed could have been proved in chief if evidence was available. However, if such notice had been given, it is possible that neither the respondent nor Choo would have entered the witness box. Moreover, the evidence was elicited, not by the cross examination of the respondent, but, after his case had closed, in the cross examination of Choo. Had the respondent been asked whether Choo had used his telephone number, and if so why he had done so, he would have had an opportunity to furnish his explanation during the ordinary course of cross examination and re-examination. As it was, he had to return to the witness box to give his explanation, thus fixing the jury's attention on what was undoubtedly damaging evidence, and giving it an emphasis that it would not have had if the trial had taken its regular course.

16. It was a breach of the principles that have been discussed to tender the application form as part of the Crown's case in reply. However, the form was admitted only against Choo, and added nothing to the material already in evidence, although it may have given it further emphasis. Nevertheless, as we have shown, there were a number of unsatisfactory features touching the evidence: the use of the respondent's telephone number by Choo was first brought out in the cross examination of Choo after the respondent had given evidence and closed his case; the respondent had not been informed, before he elected to give evidence, of the Crown's intention to adduce the evidence; the sequence of events compelled the respondent, when all other evidence had been concluded, to re-enter the witness box in an endeavour to place an innocent construction on the evidence and thereby expose himself to cross examination on the very point the Crown had sought to make. In these circumstances the Court of Criminal Appeal was justified in concluding that the trial had miscarried and in ordering a new trial.

17. For these reasons the application for special leave to appeal should be granted but the appeal should be dismissed.

MASON J. I have had the advantage of reading the reasons for judgment of Dawson J. For the reasons which he gives, I would grant special leave to appeal and dismiss the appeal.

BRENNAN J. If the prosecution could have proved that Chin and Choo had used the same telephone number in Malaysia, that fact would have tended to show that they had had some association there, contrary to Chin's assertion that they had not. If Chin and Choo, before coming to Australia, had each signed or authenticated documents which showed the same Malaysian telephone number as his telephone number, that fact would have tended to show that they had had some association in Malaysia: not because the statement in one of the accused's documents could be used to prove against the other accused that the former had actually used the telephone number, but because the making or authentication by the respective accused of documents containing the same telephone number was not reasonably to be explained as coincidental. Rather, if such documents had been made by Chin and Choo, the fact of the making by Chin and Choo would support an inference that they had had some association with each other in Malaysia. The jury could find that no other inference was reasonably open. The prosecution had possession of documents which purported to be signed by Chin and Choo containing the same Malaysian telephone number, but they were admissible only on proof that Chin and Choo had signed them.

2. Let it be assumed that the prosecution could have proved, in presenting its case against Chin, that he had signed a document containing a particular Malaysian telephone number. In the absence of an admission by Chin, how could the prosecution have proved against Chin that Choo had signed a visa application form that contained the same telephone number? Not by an extra-curial admission or an unsworn admission in Court by Choo, for Choo's admissions could not be tendered against Chin. Not by calling Choo to give evidence, for he was a co-accused and not compellable to give evidence in the prosecution case. The prosecution might have called a witness, if such a witness were available, who could prove Choo's signature on the document or, perhaps, who could have proved Choo's signature on another document with which the jury could compare the signature on the relevant document. (It may be a question, which I do not need to decide, whether the latter method of proof is open when the signature is in Chinese characters and the jury is not familiar with handwriting in those characters). It does not appear whether such a witness was available or not, but it may be surmised that any such witness was out of Australia and not amenable to process to compel his attendance. At all events, there was nothing to suggest that there was an available witness within Australia whom the prosecution failed to call.

3. Thus there was nothing to suggest that the prosecution had the means of proving against Chin that Choo had signed a relevant document. But when Choo went into the witness box and exposed himself to cross-examination, the prosecution was able to prove by Choo's evidence - which was, of course, admissible against Chin - that Choo had signed a document containing the relevant telephone number. Only then was it open to the prosecution to prove the incriminating fact that Choo had signed a document stating his Malaysian telephone number to be the number which Chin had stated was his telephone number. There was, in my view, no splitting of the prosecution case; no holding back of what the prosecution was, or ought to have been, able to prove. That seems to me to be the end of the case.

4. As special leave is to be granted, I would allow the appeal. This is a minority view, and it is unnecessary to consider what consequential order should be made. I should add that I agree with the observation of Dawson J. that a cross-examiner who proves a document by a witness may tender the document before closing his cross-examination.

DAWSON J. The respondent, Louise Chin, was found guilty upon a charge of having been knowingly concerned in the importation into Australia of a prohibited import, namely, a quantity of heroin. At the same time, Pen Ben Choo, who had been tried jointly with Chin, was found not guilty upon a charge of having had in his possession without reasonable excuse the same quantity of heroin. Chin successfully appealed against his conviction to the Court of Criminal Appeal of New South Wales and the prosecution now seeks special leave to appeal to this Court against that decision.

2. Both Chin and Choo lived in Malaysia. On 23 August 1982, Chin arrived in Australia. He claimed that he came here for business reasons and that when he came he had never met Choo. On 29 August, Choo arrived at Sydney airport and was found by Customs officers to be in possession of a bag containing a quantity of heroin. One explanation given by him was that he had been given the bag by a friend in Singapore, who asked him to take it to an hotel in Sydney where someone would pick it up.

3. Accompanied by police and customs officers, Choo went to the hotel and occupied a room. The next day, after several telephone calls had been received in the room, including one alleged to be from Chin, Chin came to the door of the room and was arrested. He admitted having telephoned the previous night and said that he had been asked by a friend in Penang to pick up Choo and look after him. He said that he did not know Choo.

4. The recitation of the facts which I have given is sufficient to understand the point of the application, which is one which arises out of the course which the trial took.

5. During the presentation of the prosecution case, various documents were tendered in evidence. These included Choo's Customs and Quarantine Statement, his Malaysian passport and his Incoming Passenger Card. They also included Chin's Malaysian passport, his Malaysian Identity Card and his airline ticket.

6. After the close of the prosecution case, Chin was called to give evidence and during his cross-examination he was asked some questions about a form which was headed "Application to Visit Australia" and was a completed application form for a visa. There had been no reference to this form or its contents during the presentation of the prosecution case. Chin identified his signature on the form and his photograph, which appeared on the reverse side. The form was marked for identification but not tendered. Chin was not asked any questions about a business telephone number, 25357, which appeared on the form, nor had this telephone number been referred to during the prosecution case.

7. Chin was, however, asked questions in cross-examination about the letter-head of a business called "A.A.Q. Venture", in which Chin was engaged in Malaysia. A document displaying this letter-head was marked for identification. It showed one of the telephone numbers of the business as 25357 and Chin identified this number as the number of a coin-operated telephone at the premises from which his father ran an escort agency in Penang.

8. After the case for Chin was closed, Choo was called to give evidence. In cross-examination he identified his signature and photograph upon a visa application form in his name. Again, this document had not been referred to during the presentation of the prosecution case. He was asked what telephone number appeared on the form and he replied that it was 25357. That was, of course, the same number as that which appeared on the letter-head of A.A.Q. Venture and also (although this was not in evidence) upon Chin's visa application form. Choo maintained that he had not filled in his visa application form and that, because he did not speak English, he was unable to read it. The form was marked for identification but counsel for both accused objected to further cross-examination upon its contents. The prosecutor sought to justify his questions upon the basis that they went to the witness's credit and also upon the basis that they went to establish a connexion between Chin and Choo and, hence, a purpose for the witness Choo's visit to Australia. The learned trial judge allowed the prosecutor to continue his line of questioning, observing that "the weight of such evidence, and perhaps the document itself if it subsequently becomes an exhibit", was a matter for the jury.

9. This ruling was made on the eleventh day of the trial and on the twelfth day counsel for Chin applied for a discharge of the jury in his case. The basis of his application was that the revelation of the telephone number on Choo's visa application form during his cross-examination was unduly prejudicial to Chin and ought to have been excluded. The prejudice alleged was that the telephone number constituted the only evidence of a link between Chin and Choo before they came to Australia. It was pointed out that neither the telephone number nor the visa application form of either Chin or Choo had formed part of the evidence upon which the accused had been committed for trial and that Chin, having closed his case, had not been given the opportunity to deny having supplied the telephone number to Choo or to offer any explanation for its appearance upon Choo's visa application form.

10. Counsel for Choo joined in making a similar application on behalf of his client upon the basis that the contents of the visa application form had, to the prejudice of his client, been placed before the jury even though at that stage the document had not been admitted in evidence.

11. The trial judge refused to discharge the jury and Choo was re-examined upon the circumstances in which he signed his visa application form, although that document was then still not in evidence, being marked for identification only.

12. After the case for Choo was closed, the prosecution was permitted to reopen its case by way of reply and Choo's visa application form was admitted in evidence as an exhibit in the case against Choo alone. Chin's visa application form was not tendered in evidence by the prosecution (the trial judge having indicated, so we were told, that he would not admit it) and so remained marked for identification only. Counsel for Chin was then permitted to recall his client to the witness box and to ask him questions concerning the telephone number 25357. The substance of his evidence was that a coin-operated telephone bearing that number was on the bar counter of his father's escort agency and was available to members of the public who were customers of that business. This was the only explanation which he was able to give of how the telephone number appeared in Choo's visa application form.

13. Although other grounds of appeal were raised by Chin in the Court of Criminal Appeal, he succeeded in that Court on the ground that the prosecution had, in effect, split its case by cross-examining him about the telephone number on his visa application form and by tendering that form (the Court appears to have been under the misapprehension that it was Chin's form which was tendered) by way of reply. The other grounds of appeal were not considered by the Court of Criminal Appeal and do not fall to be considered here.

14. The rule (sometimes referred to merely as a practice) which governs the reopening of the prosecution case after the close of the case for the defence, was examined in Shaw v. The Queen [1952] HCA 18; (1952) 85 CLR 365 and was reconsidered recently in Killick v. The Queen [1981] HCA 63; (1981) 147 CLR 565 and Lawrence v. The Queen [1931] HCA 41; (1981) 38 ALR 1. The prosecution may be permitted to adduce evidence after the close of the defence case in the discretion of the trial judge. The discretion is, however, to be exercised in favour of the prosecution only in exceptional circumstances and the guiding principle is that the prosecution ought not to be permitted to split its case. That is to say, the prosecution must call all the evidence available to it in support of its case during the presentation of that case. If it fails to do so, it ought not to be allowed to remedy the situation by calling evidence in reply except in exceptional circumstances. Beyond 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. In Shaw's Case, at p.380, Dixon, McTiernan, Webb and Kitto JJ. expressed the view that:

"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."

The prosecution will not, of course, be seeking to split its case when the evidence which it wishes to call by way of reply is to rebut evidence which forms no part of its proofs as, for example, where the defence of insanity is raised or evidence of good character is called by the accused. Even then, if the nature of the evidence which the accused intends to call should have been known to the prosecution so that it would have been possible to deal with it by calling evidence in the prosecution case, the proper course may be to refuse the prosecution permission to reopen its case in order to call rebutting evidence. Thus it was held in Killick's Case that the prosecution ought not to have been permitted to call evidence after the close of the defence case in order to rebut an alibi raised by the accused which ought to have been foreseen by the prosecution because it had been raised in earlier proceedings. 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, at p.576. 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. There is also authority for the proposition that the prosecution may be permitted to reopen its case to repair omissions of a formal, technical or non-contentious nature. See Archbold, Criminal Pleading, Evidence and Practice, (41st ed. 1982), par.4-414, and the cases there cited.

15. 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.

16. The principle of fairness which underlies the general rule that the prosecution must lead the evidence, upon which it relies to establish its case, in the course of presenting that case, has an application beyond the exercise of the discretion to allow the reopening of the prosecution case. If in the course of cross-examination of an accused person or his witnesses, the prosecution asks questions with a view to eliciting evidence for the first time which could and should have formed part of its evidence in chief, then that evidence may be excluded in the discretion of the trial judge if its admission for the first time during cross-examination would unduly prejudice the accused, having regard to the obligation resting upon the prosecution to make its case known before the presentation of the defence case. See R v. Kane (1977) 65 CrAppR 270.

17. There are, of course, considerations which arise in the disallowance for this reason of questions put during cross-examination which do not arise upon an application by the prosecution to reopen its case. Cross-examination, including the cross-examination of an accused person by the prosecution, may extend to all matters in issue, whether or not they were the subject of evidence in chief by the witness. Thus, apart from any unfairness which may arise from a failure to observe the general requirement that the prosecution should, during the conduct of its case, lead all the available evidence upon which it wishes to rely, there is no reason why it should not lead in cross-examination evidence which relates solely to its own case. With this may be contrasted the practice in Federal courts and many State courts in the United States of America where the view is taken that cross-examination must be limited to matters of credit and matters raised in evidence in chief. See Wigmore on Evidence, Chadbourn Rev. (1976), pars 1885 et seq. This view has never been taken in this country.

18. When considering whether any unfairness arises, there is the circumstance that a witness may be re-examined, or further witnesses called, to deal with matters raised for the first time in cross-examination, if necessary after a sufficient adjournment has been granted or other accommodation made to allow for any unfair element of surprise. And it must always be remembered in this context that there may be matters peculiarly within the knowledge of an accused which the prosecution, although it is not able itself to call the accused as a witness, cannot be precluded from establishing in cross-examination if the accused goes into the witness box even though they be matters which support the prosecution case. It may be observed that if notice of intention to adduce evidence with respect to a particular matter is given by the prosecution and that matter is raised in cross-examination, even for the first time, there must be less force in any suggestion of unfair surprise. But there is no requirement that notice be given of the evidence which the prosecution intends to attempt to elicit during cross-examination and if the defence is alerted by notice to the fact that the prosecution intends to attempt to prove some matter by additional evidence, the notice will almost certainly refer to the calling of additional evidence in the prosecution case rather than during cross-examination. Nevertheless, such a notice may be of significance in determining whether questions asked during cross-examination constitute an unfair attempt to elicit evidence for the first time at that stage. It may be sufficient to alert the defence to some matter upon which the accused or his witnesses may be questioned if they are called to give evidence.

19. All of these considerations, and no doubt others to which I have not adverted, will bear upon the exercise by a trial judge of his discretion to disallow cross-examination by the prosecution for the purpose of adducing evidence which could and should have been tendered during the presentation of the prosecution case. Necessarily the discretion is not as confined, or cannot be as rigorously applied against the prosecution, as in the case of an application by the prosecution to call evidence by way of reply when only exceptional circumstances will justify the granting of the application.

20. Against this background it is possible to analyse the course of events in the trial in this case. It was clearly part of the prosecution case that there was an arrangement involving both Chin and Choo which led to the importation of the heroin in question into Australia. Evidence which established a connexion between the two, however circumstantial, would have supported that case. The use by Choo in his visa application of a telephone number in Penang which was the telephone number of premises occupied by Chin's father and used by Chin in his business was sufficient to establish that connexion. The prosecution sought to adduce evidence of those facts, but it did so only after it had closed its own case.

21. Chin was asked questions about the contents of both his visa application form and the letter-head of A.A.Q. Venture. These questions were permissible under s.55 of the Evidence Act 1898-1966 (N.S.W.) upon the basis that they were statements made by him in writing or reduced into writing relative to the subject matter of the prosecution. He admitted the contents of the documents, including the relevant telephone number, and those documents could not, therefore, be used for the purpose of attacking his credit. In my view, contrary to any indication which may have been given by the trial judge, the visa application form, at least, could have been tendered to prove that Chin had given the telephone number 25357 when making his application for a visa, but this was hardly necessary. The prosecution had achieved its purpose sufficiently when he admitted that that number was used by him in his business and was the number of his father's business. Had it been thought necessary to tender in reply the visa application form, objection may have been taken upon the basis that this was a document which the prosecution could and ought to have tendered during the conduct of its case, because it went to establish the connexion upon which the prosecution relied. Certainly, having regard to the tender of Chin's passport and Malaysian Identity Card, there would seem to have been no difficulty with regard to the proof of Chin's visa application form without evidence from him. There is nothing which would warrant the conclusion that the prosecution would have been unable to tender that form during the presentation of its case, even if it was not then able to do so absolutely.

22. However, the document was not tendered at all and the crucial question asked of Chin in cross-examination about the location in Penang of the telephone bearing the number 25357, and its use by Chin in his business, elicited evidence which, upon the material before us, the prosecution may well have been unable to prove as part of its own case. If it were evidence which could only have been given by Chin himself, the prosecution could not have called him because he was one of the accused, and it could not for that reason have been precluded from eliciting the evidence from him in cross-examination after he had chosen to go into the witness box.

23. But Chin was not being tried alone. He was being tried jointly with Choo, and the relevance of the evidence which Chin gave about the telephone number 25357 only became apparent when it was proved that Choo used that telephone number in his application for a visa. That fact, forming part of the contents of a document, could only properly have been proved by the tender of the document itself and so it was that the prosecution tendered in evidence Choo's visa application form. The trial judge admitted that document against Choo alone, although there was, I think, no basis for so restricting its admission. The accused were being tried jointly and the visa application form, when proved as it was by Choo, was capable of being more than an admission by him that he used the telephone number in his application for a visa: it was capable itself of constituting evidence of that fact and, since that fact was relevant in the case against both accused, the document was admissible against each of them.

24. As with Chin's form, there is nothing to warrant the conclusion that the prosecution could not have proved and tendered in evidence Choo's visa application form in the course of the presentation of its case. Such indications as there are suggest that it could have done so and, if that were so, the proper course would have been for the prosecution to have so tendered it, having previously given notice of its intention to adduce additional evidence. Such notice was necessary because of the absence of any reference to the document in the committal proceedings. The effect of permitting the prosecution to tender the document by way of reply was to allow it to split its case in circumstances which, on the material before us, were unexceptional and did not warrant any departure from the rule that the prosecution must offer all its proofs during the progress of the prosecution case.

25. The document was admitted only against Choo and Choo was acquitted. But that is no answer to the complaint made by Chin. As I have said, the visa application form signed by Choo constituted more than an admission by him that he used the telephone number in his application. It constituted evidence that the particular telephone number was in fact used by him and the jury would have found it difficult to have regarded it differently. The trial judge apparently thought that the document was only an admission by Choo and directed the jury accordingly. But his direction could hardly have overcome the prejudice caused to Chin by allowing the prosecution to tender the document in reply. The tendency of the evidence was to establish a connexion between Choo and Chin and was thought sufficient to require Chin to be recalled in order to provide an explanation of how Choo came to be in possession of the telephone number. This inevitably highlighted in an unfair way evidence which would not have received undue emphasis had it been led during the course of the prosecution case. The prosecution should not have been allowed to tender Choo's visa application form after the close of the cases for the defence. The trial of Chin miscarried, in my view, as a result of the document being admitted by way of reply.

26. It remains only to add one further observation. The practice in New South Wales is, so we were informed, to refrain from tendering then and there a document proved to be admissible during cross-examination and to delay its tender until after the opening or reopening of the cross-examining party's case. That practice is not now observed elsewhere in Australia and has, it seems, never been observed in Courts of Equity. See, e.g., Stephens v. Foster [1833] EngR 948; (1833) 6 Car & P 289 (172 ER 1245). Moreover, even where the practice may have been observed elsewhere in the past, it has not been thought to be invariable. In The Queen's Case [1820] EngR 563; (1820) 2 Brod. & B. 284, at pp.289-290 [1820] EngR 563; (129 E.R. 976, at p.978) a question was raised concerning the stage at which a letter proved in cross-examination might be placed in evidence. The question was answered by Abbott C.J. as follows:

"My Lords, in answer to this part of your
Lordships' question, I am to inform your Lordships,
that the Judges are of opinion, in the case
propounded, that the counsel cannot, by questions
addressed to the witness, enquire whether or no
such statements are contained in the letter; but,
that the letter itself must be read to manifest
whether such statements are or are not contained in
that letter. My Lords, in delivering this opinion
to your Lordships, the Judges do not conceive that
they are presuming to offer to your Lordships any
new rule of evidence, now, for the first time,
introduced by them; but, that they found their
opinion upon what, in their judgment, is a rule of
evidence as old as any part of the common law of
England, namely, that the contents of a written
instrument, if it be in existence, are to be proved
by that instrument itself, and not by parol
evidence. The latter part of your Lordships'
question is, 'In what stage of the proceedings,
according to the practice of the courts below, such
letter could be required by counsel to be read or
be permitted by the court below to be read?' My
Lords, in answer to this, I am to inform your
Lordships, that the Judges are of opinion,
according to the ordinary rule of proceeding in the
courts below, the letter is to be read as the
evidence of the cross-examining counsel, as part of
his evidence in his turn, after he shall have
opened his case; that that is the ordinary course;
but that, if the counsel, who is cross-examining,
suggests to the Court that he wishes to have the
letter read immediately, in order that he may,
after the contents of that letter shall have been
made known to the Court, found certain questions
upon the contents of that letter, to be propounded
to the witness, which could not well or effectually
be done without reading the letter itself, that
becomes an excepted case in the courts below, and,
for the convenient administration of justice, the
letter is permitted to be read at the suggestion of
the counsel, but considering it, however, as part
of the evidence of the counsel proposing it, and
subject to all the consequences of having such
letter considered as part of his evidence."

27. It is the exception referred to in The Queen's Case which, other than in New South Wales, has become the rule. Perhaps the fusion of law and equity, which was first seen in New South Wales only in 1970, has had some bearing on this development, but the modern practice may be justified simply on the grounds of practicality and convenience. Since admissions which constitute evidence in support of a cross-examining party's case may be elicited in cross-examination without opening or reopening that case, it is inconsistent to adopt a different procedure in relation to documents proved during cross-examination. Indeed, Wigmore, op.cit., par. 1884, observes:

"Where the cross-examiner proves a document by
the witness, under the orthodox rule allowing him
to put in his own case on cross-examination ... it
would seem that he ought to be obliged to put it in
formally as evidence before closing his
cross-examination, so as to enable the calling
party to reexamine the witness as to the document,
for reasons much the same as in the case ... of a
document proved on direct examination; the only
conceivable (but hardly sufficient) ground for
distinction is that in the present case the witness
is under the calling party's control and may
therefore be kept in court for a prospective
reexamination when the cross-examiner shall have
put in the document later. Where the document is
one containing a self-contradictory statement used
to impeach the witness, it seems that this result
is indeed reached by the rule in The Queen's Case".

The rule in The Queen's Case to which Wigmore refers has, of course, been replaced by statutory provisions (in New South Wales, s.55 of the Evidence Act 1898-1966) but the comment is nonetheless apposite.

28. However, even if Choo's visa application form had been tendered in evidence during his cross-examination by the prosecution rather than in reply, there would have been no relevant difference in its effect upon Chin's case. It would still have been closed by that time and Chin's recall to give further evidence would still have been necessary. The same emphasis would still have been given at a late stage to the use of the telephone number by Choo in his visa application form. In my view, the trial judge in the proper exercise of his discretion would have reached the same conclusion and would have rejected the document even if it had been tendered during Choo's cross-examination.

29. Special leave should be granted and the appeal should be dismissed.

ORDER

Application for special leave to appeal granted.

Appeal dismissed.