Case in Reply

The law has long recognised, however, that there are particular circumstances where the prosecution should be permitted to call a case in reply. In Shaw v R [1952] HCA 18, the High Court held that this is “allowable only in exceptional circumstances.”

The natural order of a trial or hearing is that the prosecution presents their case, followed by the defence. The law has long recognised, however, that there are particular circumstances where the prosecution should be permitted to call a case in reply. In Shaw v R [1952] HCA 18, the High Court held that this is “allowable only in exceptional circumstances.” In R v Chin [1985] HCA 35, the High Court stated that the prosecution should not have this opportunity where “the occasion for calling the further evidence ought reasonably to have been foreseen.”

The requirement for the Defence to put the prosecution on notice of the case to be run has further limited the circumstances where the grant of leave would be appropriate. Defendants are required to give notice of an intention to call alibi evidence, or raise a partial defence of substantial mental impairment (s150 and s151 of the Criminal Procedure Act 1986 respectively). Further disclosure obligations are imposed on Defence in s143 of the Criminal Procedure Act 1986.

If those disclosure obligations are complied with, there is usually little latitude for the prosecution to claim that they are caught by surprise by the Defence raised.

Shaw

Shaw v R [1952] HCA 18

“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… But the policy of these provisions strengthens the principle which makes a departure from the rule allowable only in exceptional circumstances”