JURISDICTION	:	SUPREME COURT OF WESTERN AUSTRALIA 

TITLE OF COURT	:	THE COURT OF APPEAL (WA) 

CITATION	:	MANYAM -v- THE STATE OF WESTERN AUSTRALIA [2010] WASCA 107 

CORAM	:	PULLIN JA
BUSS JA
JENKINS J 

HEARD	:	18 MARCH 2010 

DELIVERED	:	9 JUNE 2010 

FILE NO/S	:	CACR 66 of 2009 

BETWEEN	:	NOEL PATRICK MANYAM
Appellant
 
AND
 
THE STATE OF WESTERN AUSTRALIA
Respondent 

ON APPEAL FROM: 

Jurisdiction	:	SUPREME COURT OF WESTERN AUSTRALIA 
Coram	:	BLAXELL J 
File No	:	INS 153 of 2008 

Catchwords:
Criminal law and procedure - Prosecution application to reopen its case after the close of the accused's case to call evidence in rebuttal of the accused's evidence - Principles concerning the splitting of the prosecution's case and the calling of rebuttal evidence - Whether proviso capable of application - Whether a substantial miscarriage of justice 
Legislation:
Criminal Appeals Act 2004 (WA), s 30(3), s 30(4)
Evidence Act 1906 (WA), s 8(1)(e) 
Result:
Leave to appeal granted
Appeal dismissed 
Category:    A 

Representation:
Counsel:
Appellant	:	Mr S B Watters
Respondent	:	Ms J D Whitbread 
Solicitors:
Appellant	:	Thames Legal
Respondent	:	Director of Public Prosecutions (WA) 

Case(s) referred to in judgment(s):

AK v The State of Western Australia [2008] HCA 8; (2008) 232 CLR 438
Alister v The Queen [1984] HCA 85; (1984) 154 CLR 404
Cesan v The Queen [2008] HCA 52; (2008) 236 CLR 358
CTM v The Queen [2008] HCA 25; (2008) 236 CLR 440
Darkan v The Queen [2006] HCA 34; (2006) 227 CLR 373
Driscoll v The Queen [1977] HCA 43; (1977) 137 CLR 517
Gassy v The Queen [2008] HCA 18; (2008) 236 CLR 293
Glennon v The Queen [1994] HCA 7; (1994) 179 CLR 1
Harman v The State of Western Australia [2004] WASCA 230; (2004) 29 WAR 380
Hollington v Hewthorn & Co Ltd [1943] 1 KB 587
Killick v The Queen [1981] HCA 63; (1981) 147 CLR 565
Lawrence v The Queen (1981) 38 ALR 1
M v The Queen [1994] HCA 63; (1994) 181 CLR 487
Mackrell v The State of Western Australia [2008] WASCA 228; (2008) 37 WAR 414
Mahmood v The State of Western Australia [No 2] [2008] WASCA 259
Marshall v The State of Western Australia [2007] WASCA 96
Niven v The Queen [1968] HCA 67; (1968) 118 CLR 415
Petty & Maiden v The Queen [1991] HCA 34; (1991) 173 CLR 95
Plomp v The Queen [1963] HCA 44; (1963) 110 CLR 234
R v Chin [1985] HCA 35; (1985) 157 CLR 671
R v Hillier [2007] HCA 13; (2007) 228 CLR 618
R v Johnson [1961] 1 WLR 1478
R v Moustafa [2010] VSCA 40
R v Rudd [2009] VSCA 213
R v Soma [2003] HCA 13; (2003) 212 CLR 299
R v Taylor [1968] NZLR 981
Shaw v The Queen [1952] HCA 18; (1952) 85 CLR 365
Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573
Smith v The Queen [2001] HCA 50; (2001) 206 CLR 650
Stubley v The State of Western Australia [2010] WASCA 36
Thompson v The King  [1918] AC 221
Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300
Wilde v The Queen [1988] HCA 6; (1988) 164 CLR 365

Table of Contents
Pullin JA's reasons
The prosecution evidence
The appellant's evidence
The prosecutor's application to call evidence in rebuttal
The rebuttal evidence
Events after the rebuttal evidence was given
Comments made by the prosecutor when he opened the case
Grounds of appeal
Ground 1
Ground 2
In the alternative there was no substantial miscarriage of justice
The DNA evidence
Buss JA's reasons
Overview of the State's case at trial
Overview of the appellant's case at trial
Ty Nathan Robertson and some common ground
Overview of the evidence relied on by the State to prove its case
The grounds of appeal
Ground 1:  the relevant facts and circumstances before the trial commenced
Ground 1:  the relevant facts and circumstances during the trial
Ground 1:  applicable legal principles
Ground 1:  the State's submissions
Ground 1:  its merits
Ground 2:  the prosecutor's opening
Ground 2:  the appellant's submissions
Ground 2:  the decision in Petty
Ground 2:  the trial judge's summing up
Ground 2:  its merits
Section 30(3) and s 30(4) of the Criminal Appeals Act 2004 (WA)
In the present case, is this court precluded from applying the proviso?
In the present case, should this court apply the proviso?
Conclusion
Jenkins J's reasons
Ground 1
Ground 2
The proviso

1	PULLIN JA:  The appellant was charged and convicted after trial before Justice Blaxell and a jury in the Supreme Court of four counts that on 27 May 2008 he unlawfully detained employees of the Sizzler Innaloo restaurant and one count of aggravated armed robbery.  He appeals against the convictions and seeks leave in relation to the grounds of appeal.
The prosecution evidence
2		The evidence was that on 27 May 2008 at about 8.30 pm, Sinead Williams finished work at Sizzler restaurant.  She walked out the back of the restaurant to the staff room where she saw two men wearing balaclavas, sunglasses and gloves.  One of the men was a man called Ty Robertson, who was later charged and admitted that he committed the offences.  The State alleged that the other man was the appellant.  For convenience I will refer to the other man as the appellant.
3		The appellant was carrying a knife.  The two offenders shut the staff room door behind Ms Williams.  She was made to sit on a chair and the appellant tied her wrists together with a cable tie.  The offenders questioned Ms Williams about who the manager of the restaurant was and where the restaurant safe was located.  Another employee, Ms Young, then walked into the staff room.  The offenders made her sit on a chair and the appellant tied her wrists together.  They were told to stay in the staff room and the offenders left.  The offenders then went to the kitchen of the restaurant and rounded up other staff.  The offenders placed the other staff members, including Ms Pidoux, in the rear store room.  The offenders then confronted the store manager, Trevor Hesse.  The offenders made Mr Hesse go into the office, open the office safe and put the contents of the safe into a bag.  The offenders made the other manager Russell Crosby go and get a till and its cash from another part of the restaurant and return with it to the office.  The offenders made Mr Hesse and Mr Crosby go into the rear store room.  The offenders left with approximately $4,500.  The four counts of unlawful detention related to the detention of Mr Crosby, Mr Hesse, Ms Pidoux and Ms Williams.
4		The appellant denied any involvement in the robbery.  The State's case was circumstantial.  The circumstances relied upon and from which the jury were asked to draw an inference of guilt were as follows:
(a)	One of the witnesses saw a tattoo showing above the collar and on the neck of one of the robbers.  The appellant has a tattoo on his back which shows above his collar.  Robertson only had tattoos on his arms;
(b)	Cable ties were found later by the police at the appellant's house.  They were similar to the cable ties used by the robbers;
(c)	There was DNA matching the appellant's DNA found on one of the cable ties used at the robbery;
(d)	There was a rifle bag found at the appellant's house.  One of the robbers was armed with a sawn‑off firearm;
(e)	The appellant knew Robertson and admitted he had been with him on 27 May 2008 until 4.30 pm;
(f)	The appellant owned a backpack and coat similar to that seen on one of the robbers on the surveillance video taken on the day of the robbery;
(g)	Certain statements made by the appellant when he was later interviewed by the police and recorded on video.  These are set out below.  
5		The video record of interview was conducted by the police on 25 June 2008.  During the course of the interview the appellant was shown some still photos taken from CCTV footage from Sizzler taken on the night of the robbery.  He was then questioned by one of the interviewing policemen, Constable Harmer, as follows:
Q.	To the best of your knowledge there's a guy standing there with a balaclava on his head with black gloves and a backpack going through a till.  Is that something that could be you?
A.	It could be me, yeah.  There's nothing that proves to me that it's definitely not me otherwise I'd be jumping up and down pointing at it.
Q	Right.  So that's something that could quite easily be you, wearing a balaclava, taking cash out of a till?
A	It could be me.  I can't see - I can't see any features there that would without a doubt prove that it wasn't me, put it that way.
The other interviewing policeman, Constable Branigan, then questioned him as follows:
Q	Is it possible, Noel … say that, that it could be you?  Is it possible - Dale's just sort of gone into quite a bit of detail about what you took that day in relation to taking some heroin, some prescription medication and that sort of stuff.
A	Yeah.
Q	Is it possible that - you're saying it could be you is because - is it possible that you could've gone there and not remembered it?  Is that what you're saying?
A	That has happened to me in the past but I'm pretty sure - I'm pretty sure I'd remember something like that.  But I - yeah, I have lost - I have lost weeks.
Q	The fact that we do - we can place you in there with DNA‑ - ‑
A	Yeah.
Q	‑ ‑ ‑ and then the fact that you look at a photo and say, you know, 'It could be me'.
A	Yeah.
Q	It just makes me think maybe with the fact that you might've taken so many drugs that you really didn't know what the hell you were doing.
A	Yeah.
This questioning continued in similar vein for a time until the appellant said, in answer to a question from one of the policemen whether the CCTV showed him at the scene of the robbery:
Is that me at the scene of a crime perpetrating that crime?  I can't comment on that in the absence of my lawyer, Chief.
The appellant's evidence
6		The appellant gave evidence.  He denied committing the offences.  He admitted that the cable ties would have had his DNA on them.  He claimed that cable ties were used frequently during the course of his work with Mr Robertson.  He said that Robertson operated a car wash franchise which involved travelling around from place to place in a vehicle and using a vacuum cleaner to clean cars.  His evidence was:
We used the cable ties because we had a special vacuum cleaner, a shampooing vacuum cleaner, and it had a suction nozzle and then it had another nozzle that came out below that which sprayed this cleaning solution on the carpet, dashboard, seats etc and the suction nozzle would then suck it all up.  The problem that we had was that the distribution cable, the cable that was - out of which the shampoo solution was coming, was too far away from the suction nozzle so basically we were leaving wet spots on the fabric.  So we used the cable ties to tie the hose closer so that basically the nozzle had the hose right on the lip of it and then we found that we could shampoo and it would suck up instantaneously and that area would be then basically dry (ts 289).
He said that the cable ties were kept in a bag in the back of the car and the appellant said that he handled the cable ties.
7		This evidence was the appellant's explanation for why his DNA was found on the cable ties used in the robbery.  The inference the appellant asked the jury to draw was that Robertson and his co‑offender used some of the cable ties, handled by the appellant at work, to tie up the complainants.  At ts 315, during cross‑examination, counsel for the State applying the rule in The Queen's case (see Alister v The Queen [1984] HCA 85; (1984) 154 CLR 404, 443), asked the following questions:
There wasn't a broken vacuum cleaner that you cable tied?‑‑‑Yes, there was.
Would you have a look at this document, please?  Just read it quietly to yourself?‑‑‑It's from the manager of the Ecowash
I didn't ask any questions about it?‑‑‑I've already read it.
Just read it quietly to yourself.  Given what you have in front of you there, you did not put cable ties on a vacuum cleaner, did you?‑‑‑Yes.
At the workplace?‑‑‑Yes.
You're not telling the truth, are you?‑‑‑Yes, I am.
The prosecutor's application to call evidence in rebuttal
8		After the defence case closed, the State then asked to reopen its case and call evidence of Michael Norman Brewis in rebuttal.  The statement of the evidence Mr Brewis was to give had been taken on 13 May 2009, which was on the morning of the day when the prosecutor closed his case.  It was disclosed to the appellant before he gave evidence.  The statement revealed that Mr Brewis owned the Eco‑Wash car detailing business; that Ty Robertson worked for him; that he had never heard of the appellant; that the vacuum cleaner which had been used by Ty Robertson was in reasonable condition; and that he had no use of cable ties for the purpose of car detailing.  I assume that this was the statement which was shown to the appellant during his cross‑examination.
9		Counsel for the prosecution supported the application to reopen by saying that until the appellant went into the witness box and gave evidence about employment with Ty Robertson and the use of the cable ties, there had been no basis for the State to lead evidence from Mr Brewis that he owned a vacuum cleaner used by Robertson and that cable ties were not required for its correct operation.  However, during his submissions, counsel for the prosecution properly disclosed the existence of an affidavit which had been referred to in a bail application made by the appellant in October 2008.  The affidavit was sworn by Mr Caamano who was appearing as counsel for the appellant at his trial.  He had also appeared on the bail application.  Part of the affidavit read:
The robbery of Sizzlers took place on 27 May 2008.  There were two perpetrators involved in the robbery.  Both perpetrators are alleged to have used cable ties to tie up the Sizzler employees.  One was a Mr Ty Nathan Robertson and the other is alleged to be the Defendant.  The DNA of the Defendant has been found.  Mr Robertson has already pleaded guilty and has been sentenced. 
On 23 September 2008, Mr Robertson made a Statutory Declaration attached hereto and marked 'Exhibit A' stating that the Defendant had previously been in the employ of Mr Robertson and that the Defendant had come into contact with many cleaning compounds and tools including cable ties. 
In light of paragraphs 12 ‑ 14 above, the case against the Defendant is weak as a possible alternative explanation for the presence of the Defendant's DNA on one the cable ties is that it was deposited there during the Defendant's employment at Eco‑Wash with Mr Robertson.
The statutory declaration of Ty Robertson exhibited to the affidavit read:
From March 1st 2008 to April 1st 2008 Noel Patrick Manyam was in my employ on a casual basis as an assistant car detailer myself being a manager of a franchise company called Eco‑Wash.  As such he was in physical contact with many cleaning compounds and tools including cable ties which were used to hold a hose on a vacuum cleaner which the clips had broken.  
10		Counsel for the appellant opposed the prosecutor's application to reopen and call evidence in rebuttal.  Counsel made submissions suggesting that the basis of the objection was that the evidence was going to a collateral issue, a submission that the trial judge correctly rejected.  His Honour then said:
The view I take is that in all of the circumstances until the accused actually gave the evidence that he did the state had no reason to believe they would need to call this evidence and in all the circumstances, I think it is appropriate and they should have leave to reopen for the purpose of calling Michael Norman Brewis to give evidence in accordance with the statement that has been tendered.  
11		The court then adjourned for the day and the next morning before Mr Brewis was called, counsel for the appellant said that he had an application to make.  The jury was then sent out and counsel informed the trial judge that he sought to recall the appellant 'because the vacuum cleaner is here now'.  He said that he would like the appellant to explain exactly where the cable ties were applied on the vacuum cleaner.  This application was opposed by the prosecutor.  His Honour asked what harm would be done by allowing the appellant to be recalled, but said that he would defer a ruling on the application until after Mr Brewis had given evidence.  The appellant then spoke to the judge from the dock and the transcript records him saying that the 'vacuum cleaner is in a slightly different configuration to the configuration that it was in when we were using it.  There's been some changes made to the hose'.  The trial judge said that that might give rise to some need for him to be recalled.  
The rebuttal evidence
12		The jury then returned to the courtroom and Mr Brewis was sworn in and gave evidence.  His evidence was that he knew Ty Robertson, that he did not know the appellant and had never heard the name before becoming involved in the trial.  He explained that he was the owner of the Eco‑Wash business, and that he owned one vehicle which Mr Robertson used to drive around to clean cars and that in the vehicle was one vacuum cleaner.  He said that Robertson was a contractor.  He then gave evidence as follows:
The vacuum cleaner is a two-part vacuum cleaner as opposed to a standard vacuum cleaner, which means it's got a suction hose and on top of the suction hose there's a separate hose that sprays shampoo, so as you spray the shampoo the vacuum cleaner sucks it up, and it's a one-piece - even though it's made up of two parts, it's actually a one-piece hose.  If it's here it's a lot easier to show.  It's actually one piece but there's two components (ts 333).
The vacuum cleaner was produced and demonstrated what he was saying.  The hose which was tendered consisted of a conventional suction hose, and moulded to it to form one piece was the small hose or cable carrying the shampoo.  Mr Brewis said that Ty Robertson ceased working for him in March 2008.  He was cross‑examined by counsel for the appellant, and it was put to Mr Brewis that he did not know if a cable tie was used on the nozzle in some way.  Mr Brewis said '[t]here's no function for a cable tie on the nozzle, no'.  
13		Thus the effect of Mr Brewis' evidence was that there was one hose and that, in consequence, there was no reason why cable ties would be used so that the two hoses, or cable and hose, were held together.  The witness then withdrew and the prosecutor said that he closed his case.
Events after the rebuttal evidence was given
14		Counsel for the appellant then asked the jury to be sent out which happened.  He then submitted to the trial judge that his client, the appellant, still maintained that the configuration of the vacuum cleaner had changed.  The judge then said that he would have expected it to be put to Mr Brewis in cross‑examination that the nozzle produced in court was different from the nozzle that was used at the time the appellant used it.  The judge then said that the situation was unsatisfactory if the evidence was left in that state and said that he would find out whether Mr Brewis was still available.  The judge was told that he was still available and steps were taken to call him back to the witness box.  Shortly after, the following exchange occurred:
CAAMANO, MR:  Your Honour, I don't think I will pursue the matter any more.  Yes, okay.
BLAXELL J:  Sorry?
CAAMANO, MR:  I will not pursue the matter any more.
BLAXELL J:  Will not pursue what matter any more?
CAAMANO, MR:  Recalling Mr Brewis, your Honour.
BLAXELL J:  Is that on instructions?
CAAMANO, MR:  Yes.
BLAXELL J:  You have instructions?
CAAMANO, MR:  Your Honour, those are my instructions.
BLAXELL J:  Just return to your microphone first, please.
CAAMANO, MR:  Those are my instructions, yes.
BLAXELL J:  So your instructions are not to require Mr Brewis to be recalled and not to seek to have the accused give further evidence?
CAAMANO, MR:  Yes.
BLAXELL J:   Very well.  Thank you.  Then that completes the evidence.  Yes, very well.  Mr Brewis can be released, thank you, and the jury can return (ts 347).
Counsel for the parties then addressed the jury and the trial judge summed up.
15		In summing up, the trial judge directed the jury that the evidence of the appellant that the two parts of the vacuum cleaner moved away from each other and needed to be tied together with a cable tie was potentially an 'Edwards' type lie which could be regarded as evidence strengthening the case against the appellant.
Comments made by the prosecutor when he opened the case
16		It is relevant to ground 2  of the appeal that I refer to something said by prosecuting counsel when opening the case for the prosecution.  He said:
He denied any involvement in the robbery.  He told the police in effect that there was nothing he could tell them about the robbery that had occurred at Sizzler that same night.  He said in fact that he had not been to that restaurant.  The accused did, however, also say - and this is when he was asked about his DNA which the police say to him in the interview was located at Sizzler - he mentions possibilities of him handling something that was taken there to the restaurant and also says someone might have worn some of his clothing to the restaurant.
He is then shown some stills, some photographs, taken from a surveillance camera, security camera, that had been operating at the Sizzler restaurant at the time of the incident.  He was shown some of those stills.  In relation to those, he says that they could be him.  He says, more specifically, there is nothing in the photo that says it's definitely not him.
He's looking at the features of the person, the clothing, and he says it could be him but there's nothing in the photo that says it's definitely him - sorry, definitely not him.  He also goes on then to say that he doesn't want to comment.  When he is asked directly again whether he was involved in the armed robbery at Sizzler he says he doesn't want to comment.
In relation to this last answer and generally in relation to the way the accused answered questions in that interview, the state says that the accused disclosed in effect that he knew more than what he was letting on.  The state says that the answers he gave were not those you would expect from a person who was innocent of what had occurred at the restaurant; that he has disclosed his knowledge by the way in which he has chosen to answer questions in that interview.
Grounds of appeal
17		The grounds of appeal read:
Ground 1
1.	The trial Judge erred both in law and in fact and there was a miscarriage of justice when he allowed the prosecution to split its case and call a witness after the defence case had closed;
Particulars:
a)	the Appellant gave exculpatory evidence, by way of an innocent explanation, concerning the presence of his DNA on items found at the scene of the offending ('the evidence');
b)	the prosecution applied to call a witness in rebuttal of the evidence ('the application');
c)	the trial Judge ruled the evidence could not have been reasonably foreseen and upheld the application;
d)	the evidence had been raised in earlier proceedings and had been a factor in the trial Judge previously granting the Appellant bail.
Ground 2
2.	The trial Judge erred both in law and in fact and there was a miscarriage of justice when he allowed the prosecutor to inform the jury they could infer the Appellant's guilt from the fact he essentially answered 'no comment' to certain questions asked of him during his video record of interview.
Ground 1
18		In Tasmania there is a statutory provision, s 371(i) of the Criminal Code (Tas) authorising the Crown to call evidence in rebuttal:  see Niven v The Queen [1968] HCA 67; (1968) 118 CLR 415, 516, which referred to the principles governing the calling of rebuttal evidence pursuant to that section.  The Criminal Procedure Act 2004 (WA) contains no such statutory provision.  In R v Soma [2003] HCA 13; (2003) 212 CLR 299, the plurality referred to the provisions in the Criminal Code (Qld) which contains no provision like the Tasmanian provision.  The Queensland provisions are similar to s 142 ‑ s 145 of the Criminal Procedure Act.  Those sections refer to the procedure of opening addresses, the accused's entitlement to defend the charges and closing addresses.  In Soma, the plurality said:
Although what was said in Niven was directed to s 371(i) of the Criminal Code (Tas), the principles which it states apply equally to this case. Indeed, there is no reason to think that they do not apply generally to the trial of indictable crime in Australia, unless and until this aspect of the practice and procedure in such trials is explicitly modified by statute [35].
19		Any evidence called after the defence case may be called rebuttal evidence:  Soma [34].  The principles governing the calling of rebuttal evidence are as follows:
(a)	There is a wide discretion in the trial judge to permit the calling of rebuttal evidence:  Shaw v The Queen [1952] HCA 18; (1952) 85 CLR 365, 383; Lawrence v The Queen (1981) 38 ALR 1, 22 ‑ 23; Killick v The Queen [1981] HCA 63; (1981) 147 CLR 565, 568 ‑ 571, 575 ‑ 576; R v Chin [1985] HCA 35; (1985) 157 CLR 671, 677.
(b)	However, in the exercise of that discretion, the trial judge must bear in mind the rule that the prosecution must have offered 'all its proof' of 'its case' (the case is the 'prosecution case‑in‑chief' (Soma [60])) before an accused is called upon to make his or her defence:  Soma [27] ‑ [28], [58] and Shaw (380).
(c)	The rule is a rule of practice and procedure, not of substantive law:  Soma [28].  The rule is a reflection of the underlying principle of fairness which must be observed in the accusatorial and adversarial procedures involved in a criminal trial:  Killick (569); Soma [27].
(d)	The rule does not just apply to prevent a deliberate attempt by the prosecution to split its case, but also to prevent the prosecution from calling evidence in proof of the guilt of the accused which ought reasonably to have been foreseen as necessary to support the prosecution case:  Chin (676); Killick (570 ‑ 571, 576 ‑ 577); Shaw (379); Soma [104].
(e)	the prosecutor cannot however 'credit the accused with fancy defences in order to rebut them at the outset with some damming piece of prejudice':  Thompson v The King  [1918] AC 221, 232, cited in Killick (571).  Likewise, it cannot, for example, give evidence in disproof of a non‑issue, for example, to disprove an alibi which the accused has no intention of raising:  Killick (571).  However, if there is any uncertainty about the existence of an issue or the likelihood that an issue will be created in the defence case, the prosecutor should make enquiry of the accused's counsel about whether there is an issue or will be such an issue.  In Killick, the plurality gave an example about the possibility of alibi evidence being led.  They said:
[T]here will be no difficulty in asking counsel for the accused whether or not it is intended to set up the alibi at the trial.  Counsel … is not bound to give the information sought, but if he declines to give the information, or says that there is no intention to set up the alibi, and evidence in support of the alibi is then given at the trial, the circumstances will be such as to justify the presiding judge in allowing the Crown to give the evidence in rebuttal.  On the other hand, if counsel for the accused states that it is intended to set up the alibi, the Crown can then give in chief the evidence to disprove it.  If the Crown is aware of the details of the alibi, and knows that it is intended to rely on it at the trial, there is no more justification for withholding until the close of the defence case evidence to refute the alibi, than there would be for withholding evidence to refute a claim that the accused acted in self‑defence (571 ‑ 572).
(f)	It has been said that the circumstances in which the discretion may be exercised by a trial judge to permit evidence to be led in rebuttal are likely to be exceptional:  Chin (676); Shaw (380, 383); Soma [59].  There can be departures from the general rule and there is no rigid formula which can define the exceptional cases where this will be permitted because of the infinite variety of difficulties that may arise in a criminal trial:  Soma [28].
It is important to bear in mind that the 'rule' referred to in (b) is a rule preventing the splitting of the prosecution case.  If the evidence to be led in rebuttal is not in proof of the prosecution case, then, save for the identification of issues which might arise as illustrated in (e) above, there is no reason for the rule to apply.  The test to be applied in determining whether the prosecution is splitting its case is to ask whether there was any issue on which the prosecution would have been able to lead the rebuttal evidence in its case in chief.  This is because evidence is not admissible unless it is relevant.  If it is not relevant, it must be excluded:  Hollington v Hewthorn & Co Ltd [1943] 1 KB 587; see also my reasons in Stubley v The State of Western Australia [2010] WASCA 36 [82] ‑ [107] - a point not addressed by the majority in that case.  McHugh J in Soma makes it clear that the 'rule' does not prevent the calling of evidence of an accused person's inconsistent statement 'as long as the statement was not admissible in proof of the prosecution case' [76].  Thus if an application is made to lead rebuttal evidence, the parties and the court should focus their attention on whether there was a live issue during the presentation of the prosecution case which would have made the rebuttal evidence admissible.  If the answer is that it would not have been admissible because it was not relevant to any issue in the prosecution case, but an issue is unexpectedly raised by the accused in the conduct of his case, then it is likely that the discretion will be exercised in favour of leading the rebuttal evidence.
20		The facts in Shaw, Niven and Soma all involved circumstances where the prosecution sought to lead rebuttal evidence in the form of proof of a prior statement inconsistent with the testimony of the accused given at trial.  What is illustrated in each of those cases is that the evidence was in fact in proof of the prosecution case.  It could and should have been led in the prosecution case in conventional fashion, that is by calling witnesses to give evidence of statements the accused made after the commission of the offence which contained incriminating evidence in proof of the charges.  In other words, as McHugh J explained in Soma [60], the statement was admissible as an admission in the prosecution's case‑in‑chief.  
21		The facts in Chin provide another example of evidence led in rebuttal which was in truth part of the prosecution proof of its case.  The prosecution case was that the two co‑accused were associated in a drug importation transaction.  It was reasonably foreseeable that they would deny the association with each other, and the prosecution should then have anticipated this by leading evidence that both had signed visa application forms showing the same business telephone number.  This was not done.  The prosecutor was wrongly permitted to lead evidence in rebuttal to establish that both accused referred in their application forms to the same number (677).
22		Those cases emphasise that the main purpose of the rule is to prohibit evidence being led which is evidence 'in proof' of the prosecution case.  I should add that the prosecutor may not split his case in order to disprove what is incorrectly called a defence.  For example, in the case of assault, the prosecution must negative that the accused acted in self‑defence as soon as there is some evidential basis for that defence.  The prosecutor may not wait until the accused gives evidence that he acted in self‑defence, and then seek to lead evidence in rebuttal.  Likewise, provocation must be negatived if the circumstances suggest that the accused was provoked:  see R v Johnson [1961] 1 WLR 1478 and R v Taylor [1968] NZLR 981, 985 ‑ 986, cited in Killick (570).
23		Examples of circumstances in which evidence in rebuttal is permitted are given by McHugh J in Soma [64].  They include evidence to rebut evidence of insanity (the onus being on the accused), evidence to rebut character evidence and evidence to rebut unexpected alibi evidence:  see also Shaw (379 ‑ 380).
24		It is now necessary to turn to examine the evidence in this case to determine, in the light of the principles set out or discussed above, whether the rebuttal evidence was properly admitted.
25		It was part of the prosecution case to prove that the DNA of the appellant was found on the cable ties and to ask the jury to infer that this was because they had been used by the appellant in the course of, or in preparation for, the robbery.  It was therefore incumbent on the prosecutor to disprove any reasonable possible explanation consistent with innocence as to why the appellant's DNA was found on the cable ties.  However, the reasonable possible explanation consistent with innocence did not require the prosecutor to speculate about alternative explanations.  If there was nothing to give any inkling from the evidence in the case about an innocent explanation, it would have been open to the jury, in the absence of the appellant giving evidence, to infer that the only reasonable explanation open was that the DNA found its way onto the cable ties in the course of, or in preparation for, the robbery.  
26		The question then is, what is the significance of the fact that there had been the identification of a reasonable possible explanation consistent with innocence revealed at the bail application many months before the trial.  At the trial itself, the appellant pleaded not guilty.  His counsel did not take the opportunity, pursuant to s 143(2) of the Criminal Procedure Act, to inform the jury that he would be giving evidence or otherwise be leading evidence providing an innocent explanation for the fact that this DNA was on the cable ties.  It is very common for accused persons not to give evidence at criminal trials.  
27		There was no evidence placed before this court to show whether or not the procedure suggested by the majority in Killick had been followed.  In the circumstances, if it was not followed, it should have been.  If followed, and the appellant had indicated that he would give evidence to provide an innocent explanation, then there was an issue identified by the parties and there would have been an obligation on the prosecutor to lead evidence on that issue (that is to lead the evidence of Mr Brewis) in its case and not lead it by way of rebuttal.  
28		On the other hand, if counsel for the appellant had said that his client would not give evidence, or had refused to answer the question from the prosecutor, then no issue would have been identified and it would have been proper for the prosecutor to close the case without calling Mr Brewis and to wait to see whether the appellant gave evidence and if so, whether he gave the evidence foreshadowed at the bail application.  Once the appellant did give evidence that was given by him, the prosecutor would have been justified in seeking to call Mr Brewis in rebuttal.  The decision of the trial judge to admit the rebuttal evidence would then have been correct. 
29		While this court does not have information about what happened between the parties out of court, it does have the exchange at ts 324, where the trial judge, after hearing the application to lead rebuttal evidence, said:
Until the evidence was given.  Until the evidence was actually given you didn't know that you would need to rebut it.  
The prosecutor answered:
That's correct.
Counsel for the appellant did not dispute the judge's statement of the position and did not contend that the prosecutor had not followed the procedure suggested by the majority in Killick's case.  
30		In those circumstances, the appellant, who bears the onus on the appeal, has not established that there was an issue on which the prosecution knew it had to give evidence until the appellant gave evidence and offered, by his testimony, the explanation about why the DNA was found on the cable ties. 
31		On that basis, the trial judge did not err in the exercise of his discretion in allowing the evidence to be called in rebuttal.  As a result, ground 1 should be dismissed.
Ground 2
32		The appellant contends that the passage in the prosecutor's opening which is set out above required a direction from the trial judge immediately following the State opening.  The submission was that the appellant was entitled to answer some questions by way of no comment and that no adverse inference against him could be drawn from those particular answers.  Reference was made to Petty & Maiden v The Queen [1991] HCA 34; (1991) 173 CLR 95, 99 where Mason CJ, Deane, Toohey & McHugh JJ said that a person who believes on reasonable grounds that he is suspected of having been party to an offence is entitled to remain silent and that the incident of that right is that no adverse inference can be drawn against the accused person by reason of his failure to answer the question or to provide such information and that to draw such an adverse inference would be to erode the right of silence or to render it valueless.  
33		The appellant submitted that immediately following the prosecutor's opening the trial judge should have directed the jury that the appellant had a right to silence and to reply 'no comment' to police questions and that this could not be used as evidence of guilt.  This ground is premised on the proposition that the prosecutor in the passage from his opening, which I have quoted above, was suggesting to the jury that the answer that he did not wish to comment gave rise to the suggested inferences and was used against him.  It is true that the prosecutor referred to 'this last answer' after mentioning that the appellant said he did not want to comment, but this reference should not be treated in isolation.  The overall tenor of the last paragraph of the passage quoted from the prosecutor's opening is that the answers given by the appellant (that is, his answers other than the no comment answer) were those the prosecutor was referring to.  The prosecutor referred to 'the answers he gave' and this was not a reference to the 'no comment' answer, but was a reference to the answers he gave before he said that he did not wish to comment.  It is significant that defence counsel did not raise any objection, and that the experienced trial judge did not detect any problem requiring direction.  I would dismiss ground 2. 
In the alternative there was no substantial miscarriage of justice
34		Having dismissed both grounds of appeal, it is unnecessary to say more. However, in case my conclusion on either ground is wrong, I should indicate that the circumstantial case against the appellant was very strong and that the application of s 30(4) of the Criminal Appeals Act would have led, in any event, to a dismissal of the appeal for the following reasons.
35		I will deal first with the case on the assumption that ground 1 should be upheld.  It may be noted that in both Niven and Lawrence, the High Court held that the trial judge erred in allowing rebuttal evidence, but in both cases the High Court agreed or accepted the appeal court decision that there had been no substantial miscarriage of justice.
36		A number of settled propositions may be stated about the application of s 30(4) of the Criminal Appeals Act.  They are:
(a)	It is a mistake to ask what the jury would have done had the wrongly admitted evidence not been put before it:  Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300[48].  
(b)	It is clear that the task of deciding whether a substantial miscarriage has occurred is a task for this court:  Weiss [39] ‑ [40]; Gassy v The Queen [2008] HCA 18; (2008) 236 CLR 293 [60] (Kirby J).  
(c)	It is a mistake to speculate upon probable reconviction and decide according to how the speculation comes out:  Weiss [43]; Gassy [60] (Kirby J).
(d)	The task of this court is to be undertaken in the same way as the appellate court decides whether the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported having regard to the evidence (Weiss [41]), which means that the court must determine upon the whole of the evidence whether it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty:  M v The Queen [1994] HCA 63; (1994) 181 CLR 487.
(e)	It has been said that no substantial miscarriage has actually occurred unless the appellate court is persuaded that the evidence 'properly admitted at trial' proved beyond reasonable doubt the accused's guilt of the offence on which the jury returned its verdict of guilty:  Weiss [44].  However, judicial observations must not be treated as if they state what is a complete and sufficient paraphrase of the statute (Gassy [18] (Gummow & Hayne JJ); AK v The State of Western Australia [2008] HCA 8; (2008) 232 CLR 438 [53]), because there is no universally applicable description of what constitutes 'no substantial miscarriage of justice' (Gassy [44] (Gummow & Hayne)) and because judicial expressions attempting to describe the operation of the statutory language must not be taken as substitutes for the language of the statute:  Weiss [33]; Gassy [16] (Gummow & Hayne JJ) [60] (Kirby J); Cesan v The Queen [2008] HCA 52; (2008) 236 CLR 358 [123].
(g)	There will be some cases involving 'fundamental' or 'very serious breaches of the presuppositions of a criminal trial' which will not be overcome by the application of the proviso:  Gassy [61] (Kirby J); Wilde v The Queen [1988] HCA 6; (1988) 164 CLR 365, 372 ‑ 374; Cesan [125] (Hayne, Crennan & Kiefel JJ).
37		The need to consider the proviso only occurs once the court is satisfied that there has been a miscarriage of justice.  In this case, if there were a wrong decision on a question of law as alleged in ground 1, it was the allegedly erroneous exercise of discretion admitting the rebuttal evidence.  A wrong decision on a question of law is also a miscarriage of justice because it is a departure from trial according to law:  Weiss [18]; Marshall v The State of Western Australia [2007] WASCA 96 [18].
38		I now turn to examine the circumstantial evidence.  I will, for a moment, disregard the rebuttal evidence on the basis that it was not properly admitted, even though it was highly relevant, admissible and powerful evidence had it been led in the prosecution case.  As a result, I will also disregard the circumstantial evidence concerning the presence of the appellant's DNA on the cable ties.  I will, however, discuss that evidence later in my reasons.
39		The other circumstantial evidence has already been referred to in brief terms at the beginning of my reasons.  However, in more detail, the evidence was:
(a)	The appellant had a tattoo on his back which extended onto his neck and showed above his collar line.  Robertson had no tattoo on his back or neck.  Mr Hesse, a Sizzler employee, gave evidence that when he and the appellant were crouched on the floor at the safe, extracting money from the safe, with the appellant holding a knife in his hand, he saw a tattoo on the neck of one of the robbers.  Precisely where the tattoo was on his neck was the subject of some questioning, but he gave evidence that he could see the tattoo on the side of his neck, but said that he noticed it when he was standing.  The CCTV footage reveals that a lot of the time they were in close proximity down on the floor at the safe, and at times the appellant is seen leaning into the safe in front of Mr Hesse.  What is clear is that he saw the tattoo above the collar line, and the appellant has such a tattoo.  There was some evidence that out of court he had stated that the older robber had the tattoo on his neck.  This confusion is not significant. What is significant is that one of the robbers (and it was not Robertson) had a tattoo like the appellant's tattoo.
(b)	The robber with the tattoo was wearing a light‑coloured jacket.  In cross‑examination, the appellant admitted that he had a jacket 'like that'.
(c)	The robber with a light‑coloured jacket had a backpack.  The appellant, in cross‑examination, admitted that he had a backpack 'like that'.
(d)	Cable ties had been used to tie up some of the Sizzler employees.  Cable ties of the same type, length, width and fastening method were found at the appellant's home during the police search in June 2008.
(e)	Ty Robertson was one of the robbers.  The appellant knew Ty Robertson, and had admitted spending part of the day, at least up until 4 pm, on the day of the robbery with Robertson.
(f)	A sawn‑off firearm was used by Robertson during the robbery.  During the police search, a rifle bag was found at the appellant's home.  He admitted that he knew it was in his possession.  There was no forensic material gathered which linked the weapon used in the robbery with the rifle bag, but it was circumstantial evidence to show that the appellant had some association with a firearm.
(g)	The answers the appellant gave in his record of interview were very close to constituting an admission that he was the robber in the light‑coloured jacket.  The person accused of a crime is not obliged to comment, but the comments made by the appellant were not the comments to be expected from a person who had not participated.  
40		R v Hillier [2007] HCA 13; (2007) 228 CLR 618 is authority for the proposition that the whole of the circumstantial evidence must be considered.  It must not be considered piecemeal.  The whole of the circumstantial evidence listed above convinces me that it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of the offence as charged and that no substantial miscarriage of justice occurred.  This was not a case where even if ground 1 had been made out, there had been a fundamental breach denying the application of s 30(4).
41		Finally, I refer to ground 2.  I have dismissed ground 2, but on the assumption that that conclusion was wrong and it should have been upheld, it was not a ground alleging a fundamental breach which would deny the application of s 30(4).  Counsel for the appellant did not object to anything said by the prosecutor in opening, and did not ask for a direction from the trial judge concerning the statements made by the prosecutor.  The lack of objection is significant.  As the plurality said in Shaw, at 381:
[T]he failure of counsel to object to inadmissible evidence may provide ground for an inference that the reception of the evidence can give rise to no substantial miscarriage of justice.
42		Even if ground 2 had been upheld, I would have dismissed the appeal on the basis that no substantial miscarriage of justice had occurred.
The DNA evidence
43		Finally I return to the subject of the appellant's DNA found on the cable ties.  I have reached my conclusion that even if the grounds of appeal should have been upheld there was no substantial miscarriage of justice without referring to the fact that the appellant's DNA was found on the cable ties.  I disregarded this evidence when considering whether other circumstantial evidence showed there was no substantial miscarriage of justice.
44		The statement in Weiss that regard has to be had to the evidence 'properly admitted at trial' when considering whether there has been a substantial miscarriage of justice or not, is a judicial exposition about when the proviso cannot be engaged.  The High Court has said that because of the variety of circumstances in which the proviso has to be considered, regard should at all times be had to the words of the statute and not to judicial expositions about its application.
45		Here the alleged miscarriage was not the admission of evidence which was allegedly inadmissible at any stage of the proceedings.  The rebuttal evidence was powerful admissible circumstantial evidence.  If ground 1 should be upheld, then it came in at the wrong time in the trial.  The purpose of the proviso is to prevent insubstantial errors from controlling outcomes (Gassy [59] (Kirby J)) or from plunging the criminal law into 'outworn technicality':  Driscoll v The Queen [1977] HCA 43; (1977) 137 CLR 517, 527 (Barwick CJ).  The law would become a laughing‑stock if it ordered retrials merely because of some immaterial, meritless or technical error.  
46		If, contrary to my conclusion that ground 1 should be dismissed, the conclusion should have been that 'the rule' directed to ensuring fairness of the conduct of criminal trials had been breached, such a breach would not usually be regarded as immaterial, meritless or technical.  However, the alleged breach in this case occurred in circumstances where it became clear that, if the prosecutor had led the evidence in this case in chief, there was, in the circumstances, no unfairness to the appellant.  The effect of 
the rebuttal evidence was that the appellant's explanation for why his DNA was on the cable ties was revealed as being false.  
47		The appellant declined the opportunity to cross‑examine Mr Brewis to ask him whether the vacuum cleaner had been modified, as the appellant asserted to the trial judge in the absence of the jury.  Further, he declined to give any evidence when he had the opportunity to do so.  Usually the fact that an accused does not wish to go into evidence to contradict the evidence of a prosecution witness could not be used in any way as a factor against the accused.  He had a right to remain silent.  However, in this case he was prepared to proclaim, in the absence of the jury, that he had an explanation to counter the Brewis evidence, but then gave express instructions to counsel not to contradict Mr Brewis' evidence that the vacuum cleaner had never been modified, and declined to give in evidence what he asserted to the trial judge.  While he was entitled to decline to give evidence, the decision not to cross‑examine Mr Brewis on the critical point is significant.  In my opinion, the particular circumstances of this case should allow this court to take the rebuttal evidence into account in deciding whether there has been a substantial miscarriage of justice or not.  This is so, even though on the assumption I made, namely that ground 1 should be upheld, it was not evidence 'properly admitted at trial'.  As I say, I have already reached the decision that there was no substantial miscarriage of justice based on the other circumstantial evidence.  However, if the rebuttal evidence is also taken into account, then it makes even stronger the conclusion that no substantial miscarriage of justice occurred.
48		I would grant leave to appeal on both grounds, but the appeal should be dismissed.
49	BUSS JA:  On 15 May 2009, the appellant was convicted after a trial in the Supreme Court before Blaxell J and a jury on five counts in an indictment, as follows:
(1)	On 27 May 2008 at Innaloo [the appellant] unlawfully detained Russell Lee Crosby.
(2)	On the same date and at the same place [the appellant] unlawfully detained Trevor Frederick Hess.
(3)	On the same date and at the same place [the appellant] unlawfully detained Sabrina Pidoux.
(4)	On the same date and at the same place [the appellant] unlawfully detained Sinead Ann Williams.

(5)	On the same date and at the same place [the appellant] stole from Trevor Frederick Hess, with threats of violence, money the property of Collins Food Group Pty Ltd trading as Sizzler Innaloo
And that [the appellant] was armed with dangerous and offensive weapons, namely a knife and a firearm
And that [the appellant] was in company with another.
50		The appellant appeals to this court against his conviction.
Overview of the State's case at trial
51		The State's case at trial was, relevantly, as follows.
52		On 27 May 2008, at about 8.30 pm, Sinead Williams completed work at Sizzler Restaurant, Innaloo.  She went to the staffroom at the rear of the restaurant.  There she saw two men wearing balaclavas, sunglasses and gloves.  One of them was carrying a rifle and the other a knife.  The men made Ms Williams sit on a chair in the staffroom.  One of them tied her wrists with a cable tie and then questioned her about the identity of the manager of the restaurant and the location of the restaurant safe.
53		Another employee, Genevieve Young, walked into the staffroom.  One of the offenders made her sit on a chair and tied her wrists with a cable tie.  
54		The offenders instructed Ms Williams and Ms Young to remain in the staffroom.  The offenders then left the staffroom, closing the door after them.  They went to the kitchen, rounded up other staff, and placed them in the rear storeroom.
55		Next, the offenders confronted the store manager, Trevor Hess.  They instructed Mr Hess to go to the office, open the restaurant safe and place its contents in a bag.  The offenders also directed another employee, Russell Crosby, to obtain money from the cash register in another part of the restaurant and bring it to the office.
56		The offenders placed Mr Hess and Mr Crosby in the rear storeroom, and then escaped with about $4,500.
Overview of the appellant's case at trial
57		The appellant gave sworn evidence in his own defence at the trial.  He denied any involvement in the robbery.
Ty Nathan Robertson and some common ground
58		There was no dispute at the trial that the five offences alleged in the indictment had been committed.  Also, it was common ground that Ty Nathan Robertson was one of the offenders.  Before the commencement of the appellant's trial, Mr Robertson had pleaded guilty and been sentenced to a term of immediate imprisonment.
Overview of the evidence relied on by the State to prove its case
59		The evidence relied on by the State to prove the appellant's guilt was, primarily, the following.
60		First, one of the offenders had a tattoo on the right side of his neck.  The appellant has a tattoo on the lower right side of the back of his neck.
61		Secondly, two employees of Sizzler had their wrists bound with cable ties that were recovered by the police from the crime scene.  Five cable ties of the same appearance were found by the police in the dining room of the appellant's home on 25 June 2008, and the appellant admitted they were his.
62		Thirdly, one of the cable ties recovered from the crime scene had DNA on it which matched that of the appellant.
63		Fourthly, one of the offenders was armed with a rifle.  A rifle bag was found by the police in a cupboard in the dining room of the appellant's home.
64		Fifthly, the relationship or connection between the appellant and Mr Robertson.
65		Sixthly, the appellant's evidence that he had a jacket and a backpack similar to those worn or carried by one of the offenders.
66		Seventhly, certain statements made by the appellant during a video recorded interview with the police on 25 June 2008 which, according to the State, indicated that he had a greater knowledge of the robbery than he was admitting.
The grounds of appeal
67		There are two grounds of appeal.  
68		Ground 1 alleges, relevantly, that the trial judge erred in law, and there was a miscarriage of justice, when he allowed the State to split its case and call a witness after the defence case had closed.
69		Ground 2 alleges, relevantly, that the trial judge erred in law, and there was a miscarriage of justice, when he allowed the prosecutor to inform the jury that they could infer the appellant's guilt from the fact that he answered, in essence, 'no comment' to certain questions asked of him during a video recorded interview with the police.
70		On 25 August 2009, Miller JA ordered that the application for leave to appeal be referred to the hearing of the appeal.
Ground 1:  the relevant facts and circumstances before the trial commenced
71		On 24 September 2008, the matters came before Magistrate Chapman.  Ms SM De Maio represented the State and Ms CM Tomich appeared for the appellant.  The appellant was being held in custody in Hakea prison.  He appeared via video‑link.  Ms Tomich made an application on behalf of the appellant for bail.  She relied in support of this application on a statutory declaration made by Mr Robertson on 23 September 2008.  The statutory declaration reads, relevantly:
From March 1st 2008 to April 1st 2008 [the appellant] was in my employ on a casual basis as an assistant car detailer myself being a manager of a franchise company called Eco-Wash.  As such he was in physical contact with many cleaning compounds and tools including cable ties which were used to hold a hose on a vacum [sic] cleaner which the clips had broken.
His Honour refused bail and adjourned the matters for mention in the Supreme Court on 6 October 2008.  
72		On 6 October 2008, the matters came before the trial judge for mention.  Mr TW Karunaratne represented the State and Mr A Caamano (the appellant's trial counsel) appeared for the appellant.  During this hearing, the trial judge inquired of the appellant's trial counsel whether he expected to call 'much evidence' at trial for the defence (ts 3).  Counsel responded:
We will be calling one witness, your Honour.  There is already a record of interview (ts 3).
His Honour remanded the appellant to 20 November 2008 for a status conference.
73		On 27 October 2008, the appellant made application to the trial judge for bail.  Mr N Cogin represented the State and the appellant's trial counsel appeared for the appellant.  Counsel for the State informed the trial judge that Mr Robertson had pleaded guilty to the offences in question.  Mr Robertson's statutory declaration was before the court.  There was discussion between the trial judge, counsel for the State and the appellant's trial counsel about the appellant's DNA having been found on one of the cable ties used to bind one of the Sizzler employees in the course of the robbery.  The appellant's trial counsel informed his Honour that it was not in dispute that the appellant's DNA was found on one of the cable ties (ts 10).  The following exchange occurred between the trial judge and counsel for the State in the context of the offenders having worn gloves while committing the offences:
BLAXELL J:   So you would be inviting the jury to draw the inference that the co-offender had been handling the cable ties previously while not wearing gloves obviously.  
COGIN, MR:   That's right.  
BLAXELL J:   As to that there's evidence to indicate a possible alternative explanation for his DNA being on the cable ties.  What do you have to say about that?  
COGIN, MR:   Well, the state would say about that that firstly the evidence isn't in an appropriate form for this sort of hearing, that effectively you have got the co‑offender or one of the offenders saying to the court, 'His DNA could have been put on the cable ties by his previous association with me as an employee.'  This co‑offender knows precisely who was with him and so that you have a statutory declaration which is in its form not particularly probative.  He speculates that the DNA could have been put there when [the appellant] was working as a car detailer (ts 11 ‑ 12).
A little later, the appellant's trial counsel informed the trial judge that Mr Robertson would be called as a witness at the trial (ts 15).  After further debate between the trial judge, counsel for the State and the appellant's trial counsel, the appellant's bail application was adjourned. 
74		On 7 November 2008, the hearing of the appellant's bail application resumed before the trial judge.  Mr Cogin represented the State and the appellant's trial counsel appeared for the appellant.  His Honour granted the application and attached a number of conditions (ts 39).  Also, his Honour vacated the trial dates.  The trial had been set down to commence on 27 January 2009 for four days (ts 39).  He ordered that the trial be relisted to commence on 9 March 2009 for four days (ts 41).
75		In the event, the appellant's trial did not commence until 11 May 2009.
76		In about late April 2009, the State made application pursuant to s 31A of the Evidence Act 1906 (WA) to adduce as propensity evidence the appellant's previous convictions for armed robbery, some of which allegedly had features similar to the armed robbery committed at Sizzler.  The State filed an outline of written submissions dated 7 May 2009 in support of its application.  The application was heard by the trial judge on 8 May 2009, and dismissed.  
77		The written outline refers to evidence which the State proposed to adduce at the trial including evidence that one of the cable ties recovered from the crime scene had DNA on it matching that of the appellant (par 12(vii)).  Paragraph 13 of the written outline reads:
A defence that might arise is that the [appellant's] DNA was deposited by way of an innocent transfer.  In this regard the State notes the comments of the accused to this effect in the video record of interview and also the affidavit [sic: statutory declaration] of convicted co‑offender Mr Ty Robertson sworn in support of the [appellant's] application for bail (see transcript of bail hearing on 24 September 2008).
78		During the hearing on 8 May 2009, counsel for the State, Mr RG Wilson, informed his Honour that:
[T]he State does not know whether Mr Ty Robertson is going to be called or not.  There has been an indication made by my friend [that is, the appellant's trial counsel] that he won't be (ts 68).
Mr Wilson also told his Honour that the State did not 'plan to call' Mr Robertson (ts 72).
Ground 1:  the relevant facts and circumstances during the trial
79		On the commencement of the trial, on 11 May 2009, the prosecutor, Mr RG Wilson, opened the State's case.  The appellant's trial counsel then informed the trial judge that he did not wish to make an opening statement to the jury (ts 95).  
80		The prosecutor closed the State's case at about 12.00 noon on 13 May 2009 (ts 285).  When proceedings commenced on 13 May 2009, at about 10.00 am (that is, about two hours before the State closed its case), the prosecutor disclosed to the appellant's trial counsel a written statement dated 13 May 2009 from Michael Norman Brewis (ts 346).  
81		Mr Brewis's statement reads, relevantly:
1	I am 41 years old and own a car detailing business.
2.	In the month of May 2008 I was a franchise owner of the Victoria Park Eco-Wash car detailing business.
3.	For a period of about 7 months I had Ty ROBERTSON working for me on casual basis.  ROBERTSON [sic] duties included cleaning cars.  ROBERTSON was not employed as a manager and did not have the authority to employ any other people.
4.	I do not know [the appellant] and have never heard of [the appellant] let alone employed him or paid him any form of salary or wage.
5.	As part of his cleaning duties, ROBERTSON had access to various cleaning equipment including a vacuum cleaner.  At the time the vacuum cleaner was in reasonable condition with no damage and in good working order.
6.	The vacuum cleaner did not have any cable ties on it for the purpose of securing the vacuum hose to the machine.  I also did not have any cable ties in the vehicle as I had no use for cable ties for the purposes of car detailing.
7.	The vacuum cleaner handed to Detective LANDERS on the 13 May 2009 is the same vacuum cleaner ROBERTSON used when he was employed by me.
8.	It has since sustained usual damage associated with regular use but at the time ROBERTSON was employed it was in good working order.
The statement appears to have been witnessed by a police officer at 9.20 am on 13 May 2009.
82		The prosecutor did not call Mr Brewis to give evidence in the State's case.
83		After the State closed its case, the appellant's trial counsel called the appellant to give sworn evidence in his own defence.  Counsel did not call any other witnesses.
84		The appellant gave evidence denying that he was involved in the robbery at Sizzler (ts 287).
85		He admitted that his DNA was on one of the cable ties found by the police at the restaurant.  He gave this explanation in evidence‑in‑chief:
Yes?---Well, to be honest with you, I'm surprised my DNA wasn't on all of the cable ties at Sizzlers.
Could you explain that?---Because I was an employee of Ty Robertson.
How do you know Ty Robertson?  You were friends?---Yeah, we were friends, and he said that he had a franchise with Ecowash, which was a waterless car washing company, and that he couldn't put me on the books but he could pay me if I could help him when he had a lot of cars to wash, so for most of
When was this?  What time of the year, what month?---It was March, April.
2008?---Yeah.
You will help him.  Where was the car wash?  That was a car wash?---No, no.  We had a vehicle and we went to the people who - we went to the customers and washed their cars at their houses.
Will the people pay cash on the spot?---Yeah, usually, or a cheque.
How do you get paid?---Ty would pay me.
Out of his own pocket?---Out of his own pocket at
You were not on the payroll of the company?---No.
In fact they didn't even know you were employed by Ty?---It was off the books.
It was off the books?---It was.
You didn't declare that money for tax purposes?---No.  It ended up being about $300 and, yeah, I didn't declare it.
What was the purpose of the cable ties in the business?---We used the cable ties because we had a special vacuum cleaner, a shampooing vacuum cleaner, and it had a suction nozzle and then it had another nozzle that came out below that which sprayed this cleaning solution on the carpet, dashboard, seats et cetera and the suction nozzle would then suck it all up.  The problem that we had was that the distribution cable, the cable that was ‑ out of which the shampoo solution was coming, was too far away from the suction nozzle so basically we were leaving wet spots on the fabric.  So we used the cable ties to tie the hose closer so that basically the nozzle had the hose right on the lip of it and then we found that we could shampoo and it would suck up instantaneously and that area would be then basically dry.
All right.  You obviously handled that with your hands?---Yes, yes.
Whose cable ties were there?---Whose cable ties were which?
The ones you used for the business?---Generally Ty had a bag in the back of the car; generally.  On occasions he'd ask me to supply certain things.  On my way to work one morning - on the morning - probably one of the last days that I worked for him I jumped in the car and he said we'd have to stop off and buy some cable ties and I said, 'No worries.  I've got a bag inside the house.'  I gave - I pulled out what I thought I'd need and I gave him the rest of the bag, which was newly purchased (ts 288 ‑ 289).
86		The prosecutor made an application pursuant to s 8(1)(e) of the Evidence Act, at the end of the appellant's evidence‑in‑chief, to cross‑examine the appellant on his previous convictions on the ground that he had adduced evidence as to his good character.   The trial judge allowed the application, ruling that the State should be permitted to cross‑examine on the previous convictions (ts 301 ‑ 303).
87		The prosecutor commenced his cross‑examination of the appellant by eliciting admissions in relation to his previous convictions including nine previous convictions for armed robbery.  The relevant cross‑examination was as follows:
[The appellant], you have been to court in the past, haven't you?---I have.
And been dealt with in relation to a number of matters?---I beg your pardon?
You have been dealt with, sentenced, in relation to a number of matters before, haven't you?---Yes.
Do they include anything like the matter that's before the court today?‑‑‑They include stealing charges and robbery whilst armed.
In fact you have been convicted in the past, specifically on 13 September 96, of a total of nine armed robbery offences.  Is that correct?---I was charged with nine, yes.
And you pleaded guilty to nine, didn't you?---I don't remember.  It was 12 years ago.
BLAXELL J:   Did you plead guilty at the time?---I pleaded guilty.  I just don't remember if I pleaded guilty to all nine.
WILSON, MR:   It wasn't one, was it?---No, it certainly wasn't one.
And it wasn't two, was it?---It wasn't two.
Nine is around about right, isn't it?---It's in the ballpark.
They were all in company, weren't they?---No, none of them were.
All involved you wearing a balaclava, or at least something covering your face?---To the extent that none of them was committed with absolutely nothing on my face, yes.  Sometimes sunglasses (ts 303 ‑ 304).
88		The prosecutor also cross‑examined the appellant on his allegedly having worked for Mr Robertson.  During the course of this cross‑examination, the prosecutor put to the appellant the written statement of Mr Brewis.  The relevant cross‑examination reads:
Do you know Ty Robertson, Ty Nathan Robertson?---I do.
Is he a friend of yours?---He is, yes.
Is he someone that you had been sort of hanging around with for a few weeks?---Yes.  I was in fact working for him for about a month and a half.
So you agree that is there?---Yes.
You heard that on the recording.  You would agree, wouldn't you, that at no time during that interview was there a connection made by you between cable ties and Ty Robertson and the cable ties at Innaloo specifically being used to tie people?---Sorry, I find that a little convoluted.  Could you rephrase?
Certainly I will.  I appreciate that.  At no time did you, in that interview, indicate to the police that you had used cable ties in your work with Ty Robertson?---At no time did I
Say that in that interview?---No.
And you never in any way linked cable ties - working with Ty Robertson to cable ties that may have been used at the restaurant?---No.  It hadn't occurred to me at that stage.
It never happened, did it, using cable ties in work with Ty Robertson and the cleaner, what you have talked about to the ladies and gentlemen?  That simply didn't happen, did it?---What would you propose happened in its place?  I mean, yes, it happened.
There wasn't a broken vacuum cleaner that you cable tied?---Yes, there was.
Would you have a look at this document, please?  Just read it quietly to yourself?---It's from the manager of the Ecowash
I didn't ask any questions about it?---I've already read it.
Just read it quietly to yourself.  Given what you have in front of you there, you did not put cable ties on a vacuum cleaner, did you?---Yes.
At the workplace?---Yes.
You're not telling the truth, are you?---Yes, I am.
What hours did you work with Ty Robertson in that cleaning business?‑‑‑Usually between 10.00 and 2.00, usually around about that time.  Sometimes we had a later job but usually it was in the morning.  Most people wanted us to wash their cars while they were at work.
And that's Monday to Friday?---Generally, yeah (ts 315 ‑ 316).
89		The appellant's trial counsel endeavoured in re‑examination to ameliorate the damage to the appellant's character consequent upon the cross‑examination as to his previous convictions:
You were convicted of nine armed robberies in September 1996?---Yes.
It's almost 13 years ago?---Yeah.
You served five years for that?---I did.
You paid your debt to society?---I did.
On those robberies you always pleaded guilty.  There's no doubt that you were ever going to plead not guilty?---No.  I pleaded guilty, yes.
You pleaded guilty at the first opportunity?---Yes.
What sort of weapon were you carrying at the time?---I'm a bit embarrassed to admit it; a plastic gun.
A plastic gun?---Plastic.
A starter gun or?---Just a plastic
You were always alone?---Yes.
You never tied up anybody?---No.
There was nobody else with a rifle or anything like that?  You never carry a knife for those robberies?---No.
At the time I suppose as a plea in mitigation you were remorseful in what you had done?---Of course I was, yeah.  I was just a kid.
Sorry?---Yes, I was remorseful (ts 321).
90		After the appellant closed his case, the prosecutor made application to re‑open the State's case.  The prosecutor handed to the trial judge a copy of Mr Brewis's written statement and then explained the basis for the application:
The State acknowledges, your Honour, the exceptional nature of such an application.  The basis is that up until [the appellant] got into the witness box and talked about employment with Ty Robertson and cable ties, there had been no basis at all for the State to lead evidence which would be in that statement; that is, to the effect that in relation to the particular business that Mr Ty Robertson worked in, the manager there doesn't know [the appellant] at all.  In that particular month there was never, ever a vacuum cleaner broken which needed to be cable tied, and there was just that one vacuum cleaner (ts 323).
91		The prosecutor then handed to the trial judge a copy of Mr Robertson's statutory declaration and the following exchange occurred between the prosecutor and his Honour:
WILSON, MR:  Now, there is reference made in a statutory declaration there of Mr Ty Robertson to this idea of working with [the appellant] and cable ties being used and a vacuum cleaner, so that has been in the possession of the State since the time of that bail application, but all the same we say that it would not have been relevant.  There would have been no basis to lead this evidence until the election was made to take the course.
BLAXELL J:   Until the evidence was given.  Until the evidence was actually given you didn't know that you would need to rebut it.
WILSON, MR:   That's correct (ts 324).
92		The appellant's trial counsel opposed the application, but the trial judge granted it.  His reasons for permitting the State to re‑open its case and call the evidence of Mr Brewis in rebuttal, were these:
The view I take is that in all of the circumstances until the accused actually gave the evidence that he did the State had no reason to believe they would  need to call this evidence and in all the circumstances, I think it is appropriate and they should have leave to reopen for the purpose of calling Michael Norman Brewis to give evidence in accordance with the statement that has been tendered (ts 325 ‑ 326).
93		Before the prosecutor called Mr Brewis, the appellant's trial counsel made application to the trial judge for leave to recall the appellant 'to explain exactly where the cable ties were applied on the vacuum cleaner in question' (ts 328).  The prosecutor opposed the application (ts 328).  His Honour decided to defer a ruling on the application until after Mr Brewis had given evidence (ts 329).
94		The prosecutor then called Mr Brewis and he gave evidence in accordance with his written statement. 
95		After Mr Brewis's evidence was completed, the appellant's trial counsel asserted to the trial judge that the appellant maintained that the configuration of the vacuum cleaner had been changed after the appellant had ceased working with Mr Robertson.  The appellant's trial counsel admitted that this alleged change of configuration was not put by him in cross‑examination of Mr Brewis.  Shortly afterwards, the following exchange occurred between his Honour and the appellant's trial counsel:
BLAXELL J:  Mr Caamano, I need to know why, given that you had Mr Brewis's statement yesterday morning [sic:  this morning] before the accused gave evidence, firstly he did not make any reference to this extra bit of hose that you want to now put to Mr Brewis, and why you did not put that to Mr Brewis when he was being cross examined this morning.
CAAMANO, MR:   Your Honour, I don't think I will pursue the matter any more.  Yes, okay.
BLAXELL J:   Sorry?
CAAMANO, MR:   I will not pursue the matter any more.
BLAXELL J:   Will not pursue what matter any more?
CAAMANO, MR:   Recalling Mr Brewis, your Honour.
BLAXELL J:   Is that on instructions?
CAAMANO, MR:   Yes.
BLAXELL J:   You have instructions?
CAAMANO, MR:   Your Honour, those are my instructions.
BLAXELL J:   Just return to your microphone first, please.
CAAMANO, MR:   Those are my instructions, yes.
BLAXELL J:   So your instructions are not to require Mr Brewis to be recalled and not to seek to have the accused give further evidence?
CAAMANO, MR:   Yes.
BLAXELL J:   Very well.  Thank you.  Then that completes the evidence.  Yes, very well.  Mr Brewis can be released, thank you, and the jury can return (ts 347).
Ground 1:  applicable legal principles
96		There are no statutory provisions in Western Australia concerning the State splitting its case or adducing rebuttal evidence at a criminal trial.  The common law applies.
97		The applicable legal principles have been enunciated and explained by the High Court in numerous decisions.  See, for example, Shaw v The Queen [1952] HCA 18; (1952) 85 CLR 365; Lawrence v The Queen (1981) 38 ALR 1; Killick v The Queen [1981] HCA 63; (1981) 147 CLR 565; R v Chin [1985] HCA 35; (1985) 157 CLR 671 and R v Soma [2003] HCA 13; (2003) 212 CLR 299.
98		The general rule is that the prosecution should not be permitted to split its case or adduce rebuttal evidence, except in very special or exceptional circumstances.  That is, in general, the prosecution must present the whole of its case before the accused is called upon to present his or her case by giving sworn evidence in his or her own defence or calling other witnesses.  The trial judge has a discretion to permit the prosecution to re‑open its case and adduce rebuttal evidence but, in general, it should not be exercised if the necessity for adducing the rebuttal evidence as part of the State's case could reasonably have been foreseen.
99		The classic statement of principle appears in the reasons of Dixon, McTiernan, Webb and Kitto JJ in Shaw:
Clearly the principle is that the prosecution must present its case completely before the prisoner's answer is made.  There are issues the proof of which do not lie upon the prosecution and in such cases it may have a rebutting case, as when the defence is insanity.  When the prisoner seeks to prove good character, evidence may be allowed in reply. But the prosecution may not split its case on any issue.  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 … [G]enerally speaking an occasion will not suffice for allowing an exceptional course if it ought reasonably to have been foreseen.  Again, it may be pointed out that even an unexpected occasion may be of such a nature that it would have been covered, had the Crown case been fully and strictly proved (379 ‑ 380).
See also the reasons of Fullagar J, 383 ‑ 384. 
100		In Killick, Gibbs CJ, Murphy and Aickin JJ referred to the general rule and described it as not merely a technical rule, but an important rule of fairness (569).  Their Honours continued:
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 (569). 
101		The salient facts of Killick were these.  The accused was charged with an armed robbery which had been committed in Adelaide on 16 June 1978.  At some time on that day he had reported to a police station in Sydney in compliance with a condition of bail.  The Crown case was that after the robbery the accused had travelled by aircraft from Adelaide to Sydney, arriving at 8.03 pm, and had reported to the police station at about 8.30 pm.  The accused gave evidence of an alibi.  He had been in Sydney for the whole of the day in question.  He had taken his child to be babysat by a woman at 10.00 am and had collected the child that afternoon.  He had then had tea and reported to the police station at about 8.00 pm.  The Crown did not call any evidence as part of its case to rebut this alibi.  However, after the accused's case closed, it called the woman and her son to prove that it had not been the accused but his wife who had taken the child to be babysat and had later collected him.  In extradition proceedings and on an application for bail the accused had given evidence to the effect of his alibi, but he had not given the evidence at the committal proceedings. 
102		The majority of the High Court (Gibbs CJ, Murphy & Aitkin JJ; Wilson & Brennan JJ dissenting) allowed the accused's appeal, quashed the convictions on all counts and ordered a new trial.  They held that the Crown should not have been permitted to adduce the evidence in rebuttal of the alibi.  The circumstances in which the evidence of the woman and her son was tendered in rebuttal were not very special or exceptional.  It was foreseeable that the accused would set up the alibi at the trial.  Full details of the alleged visits to the woman by the accused had been given at the extradition proceedings.  According to Gibbs CJ, Murphy and Aickin JJ:
The evidence of [the woman and her son] when given after the case for the applicant had closed, dealt a fatal blow to the applicant's case ‑ a blow which unfairly gained force from the time when it was delivered (572).
Their Honours added that, when given, the rebuttal evidence was likely to have been decisive of the jury's verdict (573).  Further, their Honours said that the High Court should ensure the strict observance of the principles in Shaw (573). 
103		In Chin, Gibb CJ and Wilson J referred to Shaw, Killick and Lawrence, and then stated and discussed the general principle and the trial judge's discretion to permit departure from it, as follows:
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: R v Levy and Tait ((1966) 50 Cr App R 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 (676 ‑ 677).
104		The general rule and the closely circumscribed circumstances in which the trial judge may permit departure from it are based on two fundamental propositions.  First, the burden is upon the prosecution to prove the accused's guilt beyond reasonable doubt.  Secondly, the accused is entitled to a fair trial including the protection of his or her right to silence and the presumption of innocence.  
105		As Dawson J (Mason J agreeing) observed in Chin:
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 defence (685 ‑ 686).
See also Killick, 569.
106		In Soma, Gleeson CJ, Gummow, Kirby and Hayne JJ referred to the general rule against the prosecution splitting its case or adducing rebuttal evidence in the context of the role of the prosecution at a criminal trial.  Their Honours said:
[W]hat is now clear is that it is for the prosecution to decide what witnesses will be called and 'determine the course which will ensure a proper presentation of the Crown case conformably with the dictates of fairness to the accused' (Richardson v The Queen (1974) 131 CLR 116 at 119).  That power is not unconfined. In particular, if an accused objects to the course which the prosecution takes in presenting its case, the objection must be resolved by applying principles which include the general rule that the prosecution must offer all its proof before the accused is called on to make his or her defence [29].
Ground 1:  the State's submissions
107		Counsel for the State submitted that the prosecution could not have called Mr Brewis to give evidence in the State's case because 'his evidence only became relevant when the appellant gave evidence, and gave evidence in the way he did'.
108		According to counsel for the State, in circumstances where:
(a)	the appellant had not raised in the video recorded interview with the police on 25 June 2008 the apparently innocent explanation for his DNA profile being on the cable tie; and
(b)	Mr Robertson was not a prosecution witness and the apparently innocent explanation could only emanate from the appellant, 
the evidence of Mr Brewis could never have formed part of the prosecution case in that his evidence 'went entirely to rebut part of the appellant's case'.
109		It was submitted that the interests of justice warranted the granting of the State's application to re‑open.
Ground 1:  its merits
110		In the present case, the State did not comply with the general rule that all available evidence on which the prosecution intends to rely in proof of the guilt of the accused should be adduced before the close of its case. 
111		The critical issue is whether the trial judge erred in the exercise of his discretion by permitting the State, after the close of the appellant's case, to re‑open and call evidence from Mr Brewis.
112		A trial judge may, in the exercise of his or her discretion, permit departure from the general rule in very special or exceptional circumstances.  In general, however, the discretion should not be exercised so as to permit the State to adduce rebuttal evidence after the close of the accused's case, if the necessity for adducing the rebuttal evidence as part of the prosecution case could reasonably have been foreseen.
113		In my opinion, there is no doubt, in the present case, that the necessity for adducing the rebuttal evidence of Mr Brewis was not only reasonably foreseeable by the State, but was actually foreseen by it.
114		The necessity for the State to call the rebuttal evidence in proof of the appellant's guilt was reasonably foreseeable by it from the following facts and circumstances.  First, the presence of the appellant's DNA profile on one of the cable ties recovered from the crime scene was acknowledged by the appellant before the commencement of the trial.  Secondly, this DNA evidence was highly probative of the appellant's guilt unless the appellant adduced or pointed to evidence which provided an explanation, consistent with innocence, for the presence of his DNA profile on the cable tie.  It was the most incriminating piece of evidence against him.  It was highly likely, as a practical matter, that the appellant would be found guilty unless he offered some explanation, consistent with innocence, for the presence of his DNA profile.  Thirdly, the statutory declaration made by Mr Robertson on 23 September 2008 contained evidence which, if accepted, might provide an innocent explanation for the presence of the appellant's DNA profile on the cable tie.  The existence and contents of the statutory declaration were made known to the State's counsel on 24 September 2008.  The statutory declaration was referred to on 27 October 2008 in the course of the appellant's bail application.  It was also referred to in par 13 of the State's outline of written submissions dated 7 May 2009 (that is, four days before the commencement of the trial) in support of its application pursuant to s 31A of the Evidence Act to adduce propensity evidence at the trial.  Fourthly, it was reasonably foreseeable before the commencement of the trial that the apparently innocent explanation referred to in Mr Robertson's statutory declaration and in par 13 of the State's outline of written submissions dated 7 May 2009 could be given as part of the appellant's case at the trial by calling the appellant (and not Mr Robertson) to give evidence.  Fifthly, the appellant's assertion during the search by the police at his home on 25 June 2008 that he used the cable ties found at his home to tie computer cords together did not make unforeseeable the necessity for the State to call the rebuttal evidence.  It is not unusual for an accused to give sworn evidence in his or her own defence at trial which differs from or supplements statements made in a video recorded interview with the police.  Anyway, the appellant's assertion as to the manner in which he used the cable ties is of little weight, in assessing reasonable foreseeability, in the context of the other facts and circumstances I have mentioned which, in combination, made the necessity for the State to call the rebuttal evidence reasonably foreseeable.  Sixthly, the statement of the appellant's trial counsel to the trial judge on 6 October 2008 that 'we will be calling one witness', his statement to his Honour on 27 October 2008 that Mr Robertson would be called as a witness, and his indication to counsel for the State on 8 May 2009 that Mr Robertson would not be called, did not make unforeseeable the necessity for the State to call the rebuttal evidence.  This point carries little weight, in assessing reasonable foreseeability, in the context of the other facts and circumstances I have mentioned which, in combination, require the conclusion that the necessity for the State to call the rebuttal evidence was reasonably foreseeable.
115		Further, and in any event, the necessity for the State to call the rebuttal evidence in proof of the appellant's guilt was actually foreseen by it in that the prosecutor obtained, and made available to the appellant's trial counsel shortly before the close of the State's case, a copy of Mr Brewis's statement.  Although the statement is dated 13 May 2009 and appears to have been witnessed by a police officer at 9.20 am on that date, it may reasonably be inferred that a decision was made by investigating police or the prosecutor not later than the previous day (12 May 2009) to interview Mr Brewis and obtain the statement for use or potential use at the trial.  This is the only reasonable inference open in the circumstances.
116		It is, of course, a fundamental proposition of the law of evidence that evidence may not be received at a criminal trial unless it is relevant.  See Smith v The Queen [2001] HCA 50; (2001) 206 CLR 650 [6] (Gleeson CJ, Gaudron, Gummow & Hayne JJ).  This fundamental proposition must, however, be reconciled with the general rule that all available evidence on which the prosecution intends to rely in proof of the guilt of the accused has to be adduced before the close of its case.  These principles are reconciled by permitting and, in general, requiring the prosecution to adduce rebuttal evidence as part of the State's case if the necessity for adducing that evidence is reasonably foreseeable.
117		There was no reason why the prosecutor could not have called Mr Brewis to give evidence as part of the State's case.  
118		If the appellant's trial counsel had objected on the ground of late disclosure of the statement, any prejudice could have been overcome, in the circumstances, by granting a very short adjournment to enable counsel to obtain instructions from the appellant.  If the appellant's trial counsel had objected on the ground that Mr Brewis's evidence was irrelevant, that submission could only have been made out by asserting that the appellant would not be calling or adducing evidence to the effect of the apparently innocent explanation in Mr Robertson's statutory declaration.  
119		If Mr Brewis had given evidence as part of the State's case, the trial judge would, no doubt, have informed the jury, before he gave evidence, that the particular relevance of his evidence should become apparent later in the proceedings.  If Mr Brewis had given evidence but, in the event, the appellant did not give or adduce evidence to the effect of the apparently innocent explanation, the trial judge would, no doubt, have instructed the jury to disregard Mr Brewis's evidence because, in the context of the whole of the evidence in the proceedings, his evidence was irrelevant.
120		I am satisfied that there were no very special or exceptional circumstances which justified the trial judge exercising his discretion to permit the State to re‑open its case, after the close of the appellant's case, to lead the rebuttal evidence from Mr Brewis.  It was the last piece of evidence given at the trial and it contradicted, in radical respects, evidence already given by the appellant.
121		Ground 1 of the appeal has been made out.
Ground 2:  the prosecutor's opening
122		On 25 June 2008, during the appellant's video recorded interview with the police, the appellant was asked as to his whereabouts and movements on the night of 27 May 2008, being the night of the robbery.
123		The prosecutor, in his opening address, referred to this interview and put to the jury what he understood was the chronology of events as explained by the appellant in the interview:
Obviously you will make up your own mind about what you think he was saying by way of his movements and the order of events but we understand that the effect of what the [appellant] said was that he was with a friend earlier that day, he went home, went to a chemist for medication, and that would have been in the late afternoon, then he caught a train to Perth.  He caught a train from Fremantle train station to Perth.  So he has gone from his house at Coolbellup to Fremantle train station to Perth train station.
He said he was in the Perth city, the city itself, for the earlier part of that evening.  He walked to a pub known as Fenians on Adelaide Terrace.  He had gone straight there from the train.  During that train trip to Perth he had met a person he knew, he described as a friend, who he knew as Geordie, on the train.  So on the train from Fremantle to Perth he has met a man called Geordie.  He goes to Perth train station, then to Fenians.  He says he arrived at Fenians somewhere between 8.30 and 10.00 at night, probably about 9.30, and he bases that on how long he estimates it would have taken him to get from the train station to Fenians.
His reason for going to Fenians he says was to see Dave to try and get some work.  He was expecting to meet a person there called Dave.  He doesn't say anything about meeting a Dave there, as it turns out, but he does refer to meeting a person named Bradley Young and two other men named Shaun and Corey.  He says he was with Bradley Young and Shaun and Corey at about 5 minutes to 9.
At 5 to 9 he had met Brad in Perth.  They had a few drinks at Fenians.  After Fenians, he says he went to Lockridge with Brad, Shaun and Corey, their purpose being to go to a party that the [appellant] understood was going to happen there.  It turns out there was no party, he's at Lockridge, and he says that he went to a school to try and sleep that night.  So it's from Coolbellup to Fremantle train station, to Perth train station, meeting up with Brad, Shaun and Corey, going to Fenians, and then from Fenians going to Lockridge and a school where he intended to sleep that night.
He denied any involvement in the robbery.  He told the police in effect that there was nothing he could tell them about the robbery that had occurred at Sizzler that same night.  He said in fact that he had not been to that restaurant.  The [appellant] did, however, also say - and this is when he was asked about his DNA which the police say to him in the interview was located at Sizzler - he mentions possibilities of him handling something that was taken there to the restaurant and also says someone might have worn some of his clothing to the restaurant.
He is then shown some stills, some photographs, taken from a surveillance camera, security camera, that had been operating at the Sizzler restaurant at the time of the incident.  He was shown some of those stills.  In relation to those, he says that they could be him.  He says, more specifically, there is nothing in the photo that says it's definitely not him.
He's looking at the features of the person, the clothing, and he says it could be him but there's nothing in the photo that says it's definitely him - sorry, definitely not him.  He also goes on then to say that he doesn't want to comment.  When he is asked directly again whether he was involved in the armed robbery at Sizzler he says he doesn't want to comment.
In relation to this last answer and generally in relation to the way the [appellant] answered questions in that interview, the state says that the [appellant] disclosed in effect that he knew more than what he was letting on.  The state says that the answers he gave were not those you would expect from a person who was innocent of what had occurred at that restaurant; that he has disclosed his knowledge by the way in which he has chosen to answer questions in that interview.
Ladies and gentlemen, given the state says the [appellant] was involved, then obviously the state also says that he lied to the detectives during that interview when he denied any involvement in that incident (ts 90 ‑ 92).  (emphasis added)
Ground 2:  the appellant's submissions
124		Counsel for the appellant submitted that although the prosecutor's comment that 'the answers he gave were not those you would expect from a person who was innocent' (ts 92) could have related to the appellant's assertion that he could not say that the person depicted in the images taken by the security camera was not him, the comment could also have been taken as a reference to the appellant's 'no comment' answers.  According to counsel, the trial judge should have directed the jury, immediately after the prosecutor's opening, that the appellant was entitled to answer some questions 'no comment', and that no adverse inference against him could be drawn from those particular answers.  Counsel referred to Petty & Maiden v The Queen [1991] HCA 34; (1991) 173 CLR 95, 99 (Mason CJ, Deane, Toohey & McHugh JJ).
Ground 2:  the decision in Petty
125		As Mason CJ, Deane, Toohey and McHugh JJ noted in Petty, a person who believes on reasonable grounds that he or she is suspected of having been a party to an offence is entitled to remain silent when questioned or asked to supply information by any person in authority about the occurrence of an offence, the identity of the participants and the roles which they played (99).  Their Honours mentioned two incidents of the right to silence.  First, no adverse inference can be drawn against an accused person by reason of his or her failure to answer such questions or to provide such information.  Secondly, it should not be suggested, either by evidence led by the State or by questions asked or comments made by the trial judge or the prosecutor, that an accused person's exercise of the right of silence may provide a basis for inferring a consciousness of guilt.  For example, the State should not lead evidence that, when charged, the accused person made no reply, and the State should not suggest at the trial that previous silence by the accused person about a defence raised at the trial provides a basis for inferring that the defence is a new invention or is rendered suspect or unacceptable.  See Petty (99).
126		Where a prosecutor makes impermissible observations in his or her opening or closing address about the accused remaining silent or not giving an explanation to investigating police, the trial judge should direct the jury during or immediately after the prosecutor's address and in the course of the summing up that the prosecutor's observations were inappropriate, contrary to law and must be disregarded.  See Mackrell v The State of Western Australia [2008] WASCA 228; (2008) 37 WAR 414 [105] (Miller JA).
127		In Harman v The State of Western Australia [2004] WASCA 230; (2004) 29 WAR 380, the appellant was convicted of sexual penetration without consent.  He denied being present at the time of the commission of the alleged offences.  Thereafter, he remained silent until trial.  At trial, he gave evidence, relevantly, to the effect that he did sexually penetrate the complainant.  He relied, however, on the defence of honest and reasonable, but mistaken, belief regarding consent.  Steytler J (Murray & Pullin JJ relevantly agreeing) held that it was reasonable for the prosecutor to comment to the jury in his closing address on the appellant's conflicting explanations for his conduct, in circumstances where the appellant had maintained, at all times prior to the trial, that he was not present at the time of the commission of the alleged offences and his defence of honest and reasonable, but mistaken, belief regarding consent emerged for the first time at the trial. 
Ground 2:  the trial judge's summing up
128		The trial judge said in his summing up, in the course of giving the jury instructions in relation to the presumption of innocence:
Another effect of the presumption of innocence is that the [appellant] doesn't have to come along and prove his innocence.  He is entitled to remain silent and still be acquitted if the prosecution has failed to prove its case to the required standard beyond reasonable doubt.  I should add here that that rule also applies during the video record of interview where the [appellant] at times said, 'I won't comment on that question,' or, 'I won't answer that question,' and that's consistent with the right of every accused not to have anything to say, that they're not required to say anything and you shouldn't draw any adverse inference against the [appellant] because he didn't answer some of the questions.  That's his legal right (ts 350 ‑ 351).
Ground 2:  its merits
129		The prosecutor was entitled in opening to refer to the appellant's ambivalent answers in the video record of interview as to the identification of the offender (that is, the other offender than Mr Robertson) from the security footage at Sizzler.  The prosecutor should not, however, have referred to the appellant's statement that he did not want to comment as a basis for asserting that, in conjunction with other (positive) statements in the interview, the appellant in fact knew more about the robbery than he was willing to reveal.  But, in my opinion, any prejudice to the accused caused by the prosecutor's reference to the appellant's 'no comment' response did not, in the particular circumstances of the case, give rise to a miscarriage of justice. 
130		Fortunately, the prosecutor, in his closing address, made no reference to the appellant's 'no comment' responses in the interview.  He relied upon two positive replies concerning the 'storage room' and the 'coolroom' at Sizzler which, he submitted, were incriminating (ts 5 ‑ 7).  Further, the prosecutor did not make any reference to the 'no comment' responses at any time after his opening address.
131		The appellant's trial counsel did not request the trial judge to give the jury a direction immediately after the prosecutor's opening.  The failure of a trial judge to give the jury a direction immediately is not necessarily an error of law, and does not necessarily give rise to a miscarriage.  Everything depends on the particular facts and circumstances including, especially, the nature and extent of the impermissible comments by the prosecutor and their likely prejudice to the accused.
132		In the present case, the trial judge's directions in his summing up, as to the presumption of innocence and the irrelevance of the appellant's 'no comment' responses in the interview, which I have reproduced at [128] above, dealt adequately with the matter.
133		In my opinion, his Honour's directions in summing up were sufficient, in the particular circumstances of the case, to redress any prejudice caused by the prosecutor.  His Honour did not make an error of law, and no miscarriage of justice was occasioned, as alleged in ground 2.
134		Ground 2 fails.
Section 30(3) and s 30(4) of the Criminal Appeals Act 2004 (WA)
135		Section 30(3) of the Criminal Appeals Act 2004 (WA) provides that this court must allow an appeal against conviction by an offender if, in its opinion:
(a)	the verdict of guilty on which the conviction is based should be set aside because, having regard to the evidence, it is unreasonable or cannot be supported;
(b)	the conviction should be aside because of a wrong decision on a question of law by the judge; or
(c)	there was a miscarriage of justice.
136		By s 30(4), despite s 30(3), even if a ground of appeal might be decided in favour of the offender, this court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.
137		In Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300, the trial judge had erred in permitting the prosecution to adduce inadmissible evidence.  The accused was convicted.  The Court of Appeal of Victoria held that the trial judge had made an error of law, but applied the proviso and dismissed the appeal.  The High Court reversed the Court of Appeal.  Gleeson CJ, Gummow, Kirby, Hayne, Callinan and Heydon JJ enunciated three fundamental propositions in relation to the proviso to s 568(1) of the Crimes Act 1958 (Vic) (a provision indistinguishable, in substance, from s 30(4) of the Criminal Appeals Act) which, their Honours said, must not be obscured:
First, the appellate court must itself decide whether a substantial miscarriage of justice has actually occurred.  Secondly, the task of the appellate court is an objective task not materially different from other appellate tasks.  It is to be performed with whatever are the advantages and disadvantages of deciding an appeal on the record of the trial; it is not an exercise in speculation or prediction.  Thirdly, the standard of proof of criminal guilt is beyond reasonable doubt [39].
138		Later, their Honours summarised the statutory task which must be performed by an appellate court in deciding whether to dismiss an appeal against conviction on the ground that no substantial miscarriage of justice has occurred:
That task is to be undertaken in the same way an appellate court decides whether the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported having regard to the evidence.  The appellate court must make its own independent assessment of the evidence (Driscoll v The Queen (1977) 137 CLR 517 at 524 ‑ 525 per Barwick CJ; Storey (1978) 140 CLR 364 at 376 per Barwick CJ; Morris v The Queen (1987) 163 CLR 454; M v The Queen (1994) 181 CLR 487; Festa (2001) 208 CLR 593 at 631 ‑ 633 [121] ‑ [123] per McHugh J) and determine whether, making due allowance for the 'natural limitations' that exist in the case of an appellate court proceeding wholly or substantially on the record (Fox v Percy (2003) 214 CLR 118 at 125 ‑ 126 [23] per Gleeson CJ, Gummow and Kirby JJ), the accused was proved beyond reasonable doubt to be guilty of the offence on which the jury returned its verdict of guilty.  There will be cases, perhaps many cases, where those natural limitations require the appellate court to conclude that it cannot reach the necessary degree of satisfaction.  In such a case the proviso would not apply, and apart from some exceptional cases, where a verdict of acquittal might be entered, it would be necessary to order a new trial.  But recognising that there will be cases where the proviso does not apply does not exonerate the appellate court from examining the record for itself [41].
139		The appellate court's task must be undertaken on the whole of the trial record, including the fact that the jury returned a verdict of guilty:  see Weiss [43].  Their Honours also said:
The court is not 'to speculate upon probable reconviction and decide according to how the speculation comes out' (Kotteakos v United States (1946) 328 US 750 at 763).  But there are cases in which it would be possible to conclude that the error made at trial would, or at least should, have had no significance in determining the verdict that was returned by the trial jury.  The fact that the jury did return a guilty verdict cannot be discarded from the appellate court's assessment of the whole record of trial.  Secondly, it is necessary always to keep two matters at the forefront of consideration: the accusatorial character of criminal trials such as the present (RPS v The Queen (2000) 199 CLR 620 at 630 [22] per Gaudron A‑CJ, Gummow, Kirby and Hayne JJ) and that the standard of proof is beyond reasonable doubt [43].
140		In Weiss, it was emphasised that it was necessary, in determining whether to apply the proviso or not, to proceed on the basis of the statutory language rather than secondary sources or materials [31] ‑ [33].  The court also emphasised that it is not correct or of assistance to endeavour to articulate absolute rules or singular tests which are to be applied where an appellate court examines the trial record for itself, beyond the three fundamental propositions I have recorded at [137] above.  Gleeson CJ, Gummow, Kirby, Hayne, Callinan and Heydon JJ added:
(The appellate court must itself decide whether a substantial miscarriage of justice has actually occurred; the task is an objective task not materially different from other appellate tasks; the standard of proof is the criminal standard.) It is not right to attempt to formulate other rules or tests in so far as they distract attention from the statutory test. It is not useful to attempt that task because to do so would likely fail to take proper account of the very wide diversity of circumstances in which the proviso falls for consideration [42].
Their Honours acknowledged that no single universally applicable description of what constitutes 'no substantial miscarriage of justice' can be given [44].  They said, however, that one negative proposition may safely be offered:
It cannot be said that no substantial miscarriage of justice has actually occurred unless the appellate court is persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused's guilt of the offence on which the jury returned its verdict of guilty [44].
See also Darkan v The Queen [2006] HCA 34; (2006) 227 CLR 373 [84], [94] ‑ [96] (Gleeson CJ, Gummow, Heydon and Crennan JJ).  
141		In AK v The State of Western Australia [2008] HCA 8; (2008) 232 CLR 438, Gummow and Hayne JJ referred to the passage in Weiss at [44] which I have set out at [140] above, and said that the negative proposition in that passage about when the proviso cannot be engaged must not be treated as if it states what suffices to show that no substantial miscarriage has occurred:
To treat the negative proposition in this way would be to commit the very same error which Weiss sought to correct, namely, taking judicial statements about aspects of the operation of statutory provisions as substitutes for the statutory language [53].
142		In Weiss, the High Court noted that there may be cases where it would be proper to allow an appeal and order a new trial, even though the appellate court is satisfied beyond reasonable doubt of the accused's guilt.  The High Court mentioned, by way of example, two categories of case.  The first included cases 'where there has been a significant denial of procedural fairness at trial' [45].  The second included cases where the 'errors or miscarriages of justice occurring in the course of a criminal trial may amount to such a serious breach of the presuppositions of the trial as to deny the application of the common form criminal appeal provision with its proviso' [46].  Their Honours referred to Wilde v The Queen [1988] HCA 6; (1988) 164 CLR 365, 373.  Wilde was concerned with an appeal by an offender who had been convicted following a trial before a judge and jury.  The Court of Criminal Appeal of New South Wales held that the trial judge had made a serious error of law in the trial in that evidence relating to one count against the appellant was not admissible in proof of some other counts against him, so that the first count should have been severed from the indictment and tried separately.  Nevertheless, the Court of Criminal Appeal was of the opinion that the evidence in support of the counts upon which the appellant was convicted was so strong, and the defence so weak, that there had been no substantial miscarriage of justice.  It dismissed the appeal.  The appellant's appeal to the High Court also failed.
143		In Wilde, Brennan, Dawson and Toohey JJ held that the proviso was not intended to apply 'when the proceedings before the primary court have so far miscarried as hardly to be a trial at all'; also, that the proviso does not apply 'where an irregularity has occurred which is such a departure from the essential requirements of the law that it goes to the root of the proceedings' so that 'the accused has not had a proper trial and … there has been a substantial miscarriage of justice' (373).  See also Glennon v The Queen [1994] HCA 7; (1994) 179 CLR 1, 8 (Mason CJ, Brennan and Toohey JJ).
144		In AK, the High Court heard a criminal appeal from a judge sitting without a jury.  The trial judge erred in law by failing to give adequate reasons for his decision to convict the appellant.  The trial judge breached the requirement in s 120(2) of the Criminal Procedure Act 2004 (WA) that his reasons articulate the connection identified between the relevant legal principle in AK (proof beyond reasonable doubt) and the relevant findings of fact.  The majority of the High Court (Gummow, Hayne and Heydon JJ) held that the trial judge's complete failure to meet the mandatory requirements of s 120(2) of the Criminal Procedure Act with respect to the central issue in the appellant's trial constituted a substantial miscarriage of justice.  In particular, it was a substantial miscarriage because the Act required that the appellant's trial produce a reasoned decision that met the criteria specified in the statute.  Gummow and Hayne JJ said:
When there has been a trial by jury, and an appellate court concludes that the trial judge made a wrong decision on a question of law or that there was some other miscarriage of justice, deciding whether there has been no substantial miscarriage of justice necessarily invites attention to whether the jury's verdict might have been different if the identified error had not occurred.  That is why, if the appellate court is not persuaded beyond reasonable doubt of the appellant's guilt it cannot be said that there was no substantial miscarriage of justice.  But just as persuasion of the appellate court of the accused's guilt does not in every case conclude the inquiry about the proviso's application in appellate review of a jury trial, inquiring about the weight of the evidence led at a trial by judge alone does not determine whether there was a substantial miscarriage of justice.  In a case, like the present, where the Criminal Procedure Act required that the trial yield a reasoned decision, but no reasons were given for the determination of the central issue tried, it cannot be said that there was no substantial miscarriage of justice [59].
145		In Gassy v The Queen [2008] HCA 18; (2008) 236 CLR 293, Gummow and Hayne JJ said in relation to the observations in Wilde concerning a serious breach of the presuppositions of a criminal trial:
Identifying a priori some kinds of error as precluding application of the proviso presents difficulties of the same kind as are presented by using judicial statements about the application of the proviso as some substitute for the relevant statutory test.  That is, it is neither possible nor useful to seek to apply the proviso according to a taxonomy of errors at trial which describes some as 'fundamental' and others as not.  And what was said in Wilde v The Queen ((1988) 164 CLR 365 at 373 per Brennan, Dawson and Toohey JJ; [1988] HCA 6) about 'such a departure from the essential requirements of the law that it goes to the root of the proceedings' is not to be understood as prescribing or defining a class of cases to which the proviso cannot be applied.  Rather, what was said in the passage quoted from Wilde is a description, in words other than the statutory words, of one kind of case in which an appellate court could not conclude that there had been no substantial miscarriage of justice.  For the reasons given in Weiss, a negative proposition of this kind cannot be taken as a substitute for the statutory language.
Whether the error constituted by giving the impugned instructions is properly described as 'fundamental' or as an error going 'to the root of the proceedings' would depend upon the content that is given to the expressions used.  The statutory question is whether the Full Court considers that 'no substantial miscarriage of justice has actually occurred' (Criminal Law Consolidation Act 1935 (SA), s 353(1)).  In answering that question it is necessary to consider the nature of the error and in doing that it will be important to consider the possible effect that the error may have had on the outcome of the trial [33] ‑ [34].
146		The appellant in Gassy was convicted of murder.  The High Court, by a majority (Gummow, Hayne and Kirby JJ; Crennan and Kiefel JJ dissenting) quashed the conviction and ordered a new trial.  The majority held that certain instructions given by the trial judge to the jury rendered the trial a miscarriage of justice.  The impugned instructions were given after the jury had been deliberating on their verdict for some time.  The relevant instructions involved her Honour suggesting an approach the jury might take in an attempt 'to move [their] discussions along' [23].  The instructions occasioned a miscarriage of justice because they were unbalanced; in particular, they contained no substantial reference to the competing arguments and considerations relevant to the appellant's case [31].
147		In AK, Gleeson CJ and Kiefel J accepted, as a matter of principle, that 'some errors are so fundamental or involve such a departure from the essential requirements of a fair trial that they exclude the operation of the proviso, irrespective of the strengths of the prosecution case, or the appellate court's view as to the guilt of the accused' and that 'the proviso cannot be applied where the error at trial denies or substantially frustrates the capacity of an appellate court to decide whether a conviction is just' [23].  In AK, Gummow and Hayne JJ held that, although the class is difficult to describe in the abstract, there exists a 'class of … circumstances' in which 'radical' error at trial renders the application of the proviso all but impossible [54].  
148		Those observations in AK were referred to by Kirby J in CTM v The Queen [2008] HCA 25; (2008) 236 CLR 440.  His Honour said:
The failure on the part of the trial judge to explain to the jury the legal ingredients of an offence, and to assign correctly the burden and standard of proof in respect of them, seem to me to be 'radical' errors, inconsistent with the requirements of the law.  It cannot matter that the law in question is common law and not, as in AK (See (2008) 232 CLR 438 at 456 [55]; cf Gassy v The Queen (2008) 236 CLR 293 at 307 [33] ‑ [34]), expressed in a statute.  It is still the law [128].
Kirby J continued:
It was also acknowledged in AK that one of the 'two principal safeguards for the accused in a criminal trial' is 'the criminal burden and standard of proof' ((2008) 232 CLR 438 at 477 [102] per Heydon J).  If this is the case, then surely it must be a grave (or 'radical') error for the trial judge to misdirect the jury on each of these considerations, as occurred in the appellant's trial.  If this Court is itself to deny relief to an otherwise successful appellant by its own application of the 'proviso', it must, in my respectful opinion, be consistent in doing so [129].
149		In Weiss, the High Court referred to a 'significant' denial of procedural fairness at trial as an example of a category of case where it would be proper to allow an appeal and order a new trial, even though the appellate court was satisfied beyond reasonable doubt of the accused's guilt [45].  The word 'significant' and other formulations by the High Court (for example:  a 'serious' breach of the presuppositions of a criminal trial:  Weiss [46]; such a departure from the essential requirements of the law that it goes to 'the root' of the proceedings:  Wilde, (373); errors which are 'so fundamental' or involved 'such a departure' from the essential requirements of a fair trial:  AK [23]; 'radical' error at trial:  AK [54]; a 'grave' error by the trial judge:  CTM [129]), indicate that questions of degree are involved in determining whether, in the circumstances of a particular case, an appellate court considers that the nature of the error or miscarriage at trial precludes the court from being satisfied, in terms of the proviso, that no substantial miscarriage of justice has actually occurred, irrespective of the strength of the prosecution case or the appellate court's opinion as to the accused's guilt.
150		The appellants in Cesan v The Queen [2008] HCA 52; (2008) 236 CLR 358 were convicted, after a trial, of conspiring together and with others to import into Australia a 'commercial quantity' of a prohibited import, namely the narcotic drug commonly known as ecstasy.  The High Court allowed the appellants' appeals and ordered a retrial.  The trial judge had fallen asleep during some parts of the trial.  As a consequence of the trial judge falling asleep, the jury were repeatedly distracted from attending to the evidence at various stages of the trial, including when one of the appellants was giving his evidence.  This constituted a miscarriage of justice [119].  A critical issue in the appeal was whether the 'proviso' in s 6(1) of the Criminal Appeal Act 1912 (NSW) was engaged.  The Court of Criminal Appeal of New South Wales, by a majority, had applied the proviso.
151		In Cesan, Hayne, Crennan and Kiefel JJ (with whom Gummow J agreed in relation to the application of the proviso and Heydon J agreed generally) said that the disposition of the appeal depended on the application of established principles to the particular facts and circumstances of the case.  No development or amplification of those principles was necessary [110].  Their Honours noted, consistently with the observations of Gummow and Hayne JJ in Gassy, that what was said in Wilde is not to be taken as if it were a judicially determined exception grafted upon the otherwise general language of the proviso [126].  
152		Although the record before the High Court in Cesan included the jury's verdict of guilty, it was not possible, in the circumstances, to place any weight upon the jury's verdict because the relevant miscarriage involved the jury not paying attention to all of the evidence adduced at the trial [129].  Significantly, their Honours said:
Each accused proffered an explanation of what was put against him.  In transcript the explanation may lack persuasion.  But whether the evidence as a whole, including what each accused said in explanation, was sufficient to establish guilt beyond reasonable doubt was a question for the jury to decide having regard to more than the words that are recorded in the transcript of the proceedings.  But because members of the jury were distracted, they did not perform this task. And more importantly, the Court of Criminal Appeal could not decide from the record alone that the explanations proffered by each accused were in each case to be rejected and the conclusion reached beyond reasonable doubt that each was guilty [130].  (emphasis in original)
153		Their Honours concluded that the proviso was not engaged.  It could not be said that no substantial miscarriage of justice had actually occurred.
154		In my opinion, the fact that an accused gave sworn evidence in his or her own defence at the trial, and that the jury's assessment of the accused's credit may have been influenced by an error of law or an irregularity at the trial (for example, the wrongful admission of evidence), does not necessarily preclude an appellate court from applying the proviso.  The critical question is whether, notwithstanding that the accused gave sworn evidence and notwithstanding the natural limitations that exist in the case of an appellate court proceeding wholly or substantially on the record, the appellate court is nevertheless satisfied beyond reasonable doubt of the accused's guilt.  See Mahmood v The State of Western Australia [No 2] [2008] WASCA 259 [3] (McLure JA), [210], [215] (Buss JA); Mackrell [33] (Buss JA); R v Rudd [2009] VSCA 213 [80] (Redlich JA, Maxwell P & Vickery AJA agreeing); R v Moustafa [2010] VSCA 40 [32] (Redlich & Harper JJA & Habersberger AJA).
In the present case, is this court precluded from applying the proviso?
155		In my opinion, the trial judge's error in the present case did not involve or create facts and circumstances which require that the error be characterised as a 'serious' breach of the presuppositions of a criminal trial or a 'fundamental' departure from the essential requirements of a fair trial.
156		It is true, as Gibbs CJ, Murphy and Aickin JJ noted in Killick, that the general rule that the prosecution should not be permitted to split its case or adduce rebuttal evidence, except in very special or exceptional circumstances, is not merely a technical rule, but an important rule of fairness (569).  However, it cannot be said, in my opinion, that any error by a trial judge in permitting the prosecution to split its case or adduce rebuttal evidence will necessarily constitute a 'fundamental' irregularity or will always involve or create facts and circumstances which constitute a 'serious' breach of the presuppositions of a criminal trial.
157		In the present case, there was a substantial body of evidence on which the appellant could have been convicted and in respect of which there was no error by the trial judge.  I consider that this court may dismiss the appeal if it is satisfied, without regard to the rebuttal evidence from Mr Brewis but otherwise on the basis of the evidence adduced at the trial, that 'no substantial miscarriage of justice has actually occurred', within s 30(4) of the Criminal Appeals Act.
In the present case, should this court apply the proviso?
158		The critical issue at the trial was whether the appellant was one of the offenders.  The State relied on circumstantial evidence to make out its case.  None of the witnesses at Sizzler identified the appellant as one of the offenders.  
159		As Gleeson CJ and Kiefel J noted in AK, circumstantial evidence is sometimes spoken of as though it were inherently less compelling than direct evidence.  Their Honours said, however:
Often, especially in identification cases, the truth is the opposite.  Undisputed objective circumstances may be more reliable than direct testimony [27].
160		Where the prosecution relies upon circumstantial evidence, guilt should not only be a reasonable and rational inference, but should be the only reasonable and rational inference that could be drawn from the circumstances.  See Plomp v The Queen [1963] HCA 44; (1963) 110 CLR 234, 243 (Dixon CJ); Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573, 578 (Dawson J).  
161		Circumstantial evidence must not be considered on a piecemeal basis.  It must be evaluated in its entirety.  See R v Hillier [2007] HCA 13; (2007) 228 CLR 618, where Gummow, Hayne and Crennan JJ said:
The case against Mr Hillier was a circumstantial case.  It has often been said that a jury cannot be satisfied beyond reasonable doubt on circumstantial evidence unless no other explanation than guilt is reasonably compatible with the circumstances (See, eg, Martin v Osborne (1936) 55 CLR 367 at 375; Plomp v The Queen (1963) 110 CLR 234 at 243 per Dixon CJ).  It is of critical importance to recognise, however, that in considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence (Shepherd v The Queen (1990) 170 CLR 573 at 579 per Dawson J) [46].
162		In my opinion, although this court will not be able to apply the proviso unless it rejects the appellant's sworn evidence that he was not one of the offenders and his other exculpatory statements, this court may reject his evidence by a process which involves:
(a)	weighing his account of events with and against (as the case may be) the objective circumstantial evidence and the evidence that was not genuinely in contest; and
(b)	examining his evidence at trial and comparing it with his statements in the video recorded interview with the police, in the context of all the objective circumstantial evidence and the evidence that was not genuinely in contest, and the impact upon his character and credit of the evidence of his prior convictions.
163		The State should not have been permitted to call rebuttal evidence from Mr Brewis and his evidence must therefore be disregarded in considering whether to apply the proviso or not.
164		If the combined weight of all the objective circumstantial evidence, the evidence that was not genuinely in contest, the statements made by the appellant in his video recorded interview with the police, and the impact on his character and credit of the evidence of his prior convictions, is so compelling that it requires the rejection of the appellant's sworn evidence that he was not one of the offenders and his other exculpatory statements, the court may properly reject his evidence unless it is corroborated by other, apparently or arguably reliable, evidence.
165		It is essential, however, that the appellant's guilt is the only reasonable and rational inference that could be drawn from the evidence and other matters to which I have referred, considered as a whole.
166		This court may not accord any weight to the jury's verdicts of guilty as an aspect of the trial record in deciding whether, by the process I have described, to reject the appellant's account.  It is apparent that the trial judge's error in permitting the State to adduce evidence from Mr Brewis could reasonably have influenced the jury's assessment of the admissible evidence.  
167		I am satisfied beyond reasonable doubt, after disregarding Mr Brewis's evidence but otherwise on my examination of the evidence at trial, that the appellant was guilty of each of the counts in the indictment.  My reasons for this conclusion are as follows.
168		First, one of the witnesses at Sizzler, Mr Hess, gave evidence that he saw a tattoo on one of the offenders.  
169		Mr Hess said in evidence‑in‑chief, in relation to the tattoo:
WILSON, MR:   You mentioned there in the context of the person who had the knife that you had the opportunity to see his neck?---Yes.
In relation to the man who had the gun, did you have the opportunity to also see his skin at any time?---If I recall, I see it for a brief moment and I saw a tattoo or something on the side of his neck, or a bit of - it seemed to look like a tattoo.
Which of the two - remembering, of course, only say if you're sure, but which of the two do you remember seeing a tattoo?---So the guy with the knife or the gun?  Is that what you mean?
Which of the two men?  Was it the one with the gun or the one with the knife that you saw a tattoo?---It was the guy with the knife when we were crouching down at the safe.
Where did you see the tattoo again?---On the side of the neck.
Can you, on your own body, demonstrate the location, remembering the left and the right if you can?---Basically on this side.  We were crouching on the ground so it was probably right hand side of the neck.
What part of the neck?  Obviously the neck is quite a reasonably long structure.  What part of the neck was this tattoo?---It seemed to be middle to the back, sort of somewhere down the side here, that I recall.
Perhaps if you could stand up and turn around, just so the ladies and gentlemen have a good idea of what you're pointing at?  Take as much time as you need?---Okay.  It was just below the balaclava, so it would come somewhere down here.  It's down below the [sic] believe, somewhere just sort of down this area.  It was sort of lower midsection of the neck here.
BLAXELL J:   You're indicating above the right collarbone?---Yep, yep.
And sort of not the front of the neck but not quite at the side, but in between?---Around that area, yes.
WILSON, MR:   Where was it in relation to the collar of the top he was wearing?---Sorry?
Where was the tattoo in relation to the collar of the top he was wearing?‑‑‑Obviously it was a big jacket he was wearing with a big collar so it was sort of up high, so it would have just been down - just above the collar.
BLAXELL J:   Can you just sort of describe in better detail - you said bending down at the safe.  Were you bending down at the safe or was he?‑‑‑Initially he bent down like on his knees directly on the floor and I hadn't quite crouched down by that stage.  I was sort of still leaning over and I hadn't bent down to lean in towards the safe because there's a big door in the road, so at that stage just there as I sort of was above him - so he was sort of leaning in, sort of looking down.
WILSON, MR:   Had you seen that tattoo before that moment?---No.
Did you see it afterwards?---No.
How is it that you didn't see it before or afterwards?---Basically during the whole interaction I didn't have much interaction with the guy with the knife at first because usually the guy with the gun was on me.  The guy with the knife only came at me sort of - or was with me twice:  firstly when we were approached, he was like right in front of me with the knife with the guy with the gun, and then in the safe - in the office area with the safe.
How were you able to see it at that point when you were in the office safe?---I guess it was just to do with the angle.  I was standing and the angle - he was on the floor and just with his neck to the side.
Did you see what colour the tattoo was?---It didn't seem to have any colour.  It was just dark, like just the black ink.
Did you see what it actually was of, a tattoo of?---No, I didn't see any shape or pattern.  It was more just a black colour.  It was just like a pattern which had been, I guess, zoomed into, I suppose, so I couldn't see a full pattern or picture or whatever it was (ts 187 ‑ 188).
170		The appellant's trial counsel put to Mr Hess in cross‑examination a copy of a statement he gave to the police at about 3.00 am on the morning after the robbery (ts 194 ‑ 195).  Mr Hess accepted, after reading this statement, that he could not be sure which of the offenders (that is, the offender with the rifle or the offender with the knife) had the tattoo (ts 195 ‑ 196).
171		Detective Senior Constable Dale Harmer gave evidence that Mr Robertson had tattoos only on his arms and that the appellant had tattoos on his back and chest (ts 250 ‑ 253, 258).
172		The State tendered in evidence as exhibit 17 a photograph of the tattoo on the appellant's back.  The State also tendered, as exhibits 16.1 ‑ 16.5, still photographs of the appellant taken from the video record of the search at his home on 25 June 2008.  These stills reveal that the top of the tattoo on the appellant's back is visible on the back of his neck, above his collar.
173		In my opinion, little weight should be attached to the discrepancy between the photographs which show the tattoo on the back of the appellant's neck, above his collar, and the evidence of Mr Hess that he saw a tattoo on the side of the neck of one of the offenders.  Mr Hess was under stress in the course of the robbery and it is readily understandable that he might be mistaken about the precise location of the tattoo on the offender's neck.
174		Secondly, there were five cable ties found by the police at the appellant's home on 25 June 2008, which were closely similar to the cable ties used by the offenders.  First Class Constable Jacinta Steers, a forensic field operations officer, took photographs of the cable ties.  She gave evidence of having compared the width, length and other characteristics of the cable ties.  She said that the cable ties found at the appellant's home and the cable ties used by the offenders were closely similar in length, width and colour.  All of them had similar teeth.  See First Class Constable Steers' evidence at ts 268 ‑ 276.
175		The appellant acknowledged during the police search at his home that the cable ties found at his home belonged to him (ts 90, 93).  The appellant said during the search that he used the cable ties to tie computer cords together at home (ts 90).  In his sworn evidence at the trial, the appellant said he also used the cable ties for tying the fronds of grass trees while he transported them as a part of a plant salvage business (ts 293).  
176		Thirdly, the major component DNA profile obtained from one of the cable ties used by the offenders matched the DNA obtained from the appellant's reference DNA profile (ts 237).  Mr Lawrance Webb, a senior forensic scientist in forensic biology at PathWest, gave evidence that the probability of finding this major component DNA profile if a portion of the cellular material on the cable tie had come from someone other than and unrelated to the appellant, was less than one in 10 billion (ts 237).
177		Fourthly, a rifle was used by one of the offenders and the police found a rifle bag at the appellant's home.  The appellant said during the search at his home that no one else had access to the cupboard where the police found the rifle bag apart from his partner and children who had left the home some time earlier.  He also said that he was not sure where the rifle bag had come from or who it belonged to (ts 90).
178		Fifthly, there was a connection and relationship between the appellant and Mr Robertson, who was one of the offenders.  The appellant said in his video recorded interview with the police that Mr Robertson was a friend.  As I have mentioned, the interview occurred on 25 June 2008.  This was about four weeks after the robbery.  The following exchange occurred in the course of the interview:
Q.   … Do you know Ty Nathan Robertson?
A.  I do.
Q.  Is he a friend of yours?
A.  He is, yes.
Q.  Okay.  Is he someone that you have been sort of hanging around with for a few weeks?
A.  Yes.  I was in fact working for him for about a month and a half (VROI 16).
A little later in the interview, the appellant said that he was with Mr Robertson on the day of the robbery.  At about 3.30 pm or 4.00 pm they had acquired and consumed some heroin (VROI 17 ‑ 18).
179		Sixthly, during the video recorded interview, the appellant offered the following explanation for the presence of his DNA profile on one of the cable ties used by the offenders:
Q.  We have identified your DNA at that Sizzler Store.
A.  Yeah, you mentioned that to me.
Q.  Yeah.  Now, can you justify why your DNA has been identified at that Sizzler Store?
A.  Okay.  As I said before, I can't speculate unless it ‑ unless it's been the case of transferral as a result of me handling something that was then taken into the Sizzler.  That would be the only reason, the only logical ‑ ‑ ‑ 
Q.  And what is it ‑ what is it you could've handled?
A.   ‑ ‑ ‑ sense of how that could've happened, yeah.
Q.  What could've been handled that was taken (indistinct).
A.  It could've been anything … 
 … 
Q.   … The only reason I can see it is you've been there and you've left your DNA there.
A.  Fair enough, yeah.
Q.  I'm trying to work out how else it could be there.
A.  Yeah.  The only ‑ the only other reason I can think of is that someone's either worn an item of my clothing up there or I've cut something that has been used in the perpetration of this offence (VROI 14 ‑ 15).
180		As I have mentioned, the appellant admitted in the interview that Mr Robertson was a friend and that he had worked for Mr Robertson for about a month and a half.
181		Despite these aspects of the interview, the appellant did not mention the alleged connection between cable ties and his work with Mr Robertson.  His explanation at the trial to the effect that it had not occurred to him, during the interview, to mention the connection, was implausible (ts 315).
182		Seventhly, the appellant said during the video recorded interview that he had never been to Sizzler (VROI 12).  He had never been in the restaurant, the kitchens or the storeroom and he did not know anyone who worked there (VROI 12).
183		However, later in the interview the appellant ventured an opinion as to how the offenders might have used the cable ties and where in the restaurant they may have restrained the staff.  These views were remarkably similar to what actually happened in the course of the robbery.  The relevant passages are these:
Q.  Do you have any idea what was used in that offence?
A.  Well, I'm assuming that there was a firearm of some description.
Q.  Yeah.
A.  Just by the ‑ just based on the fact that you were looking for one today.  And you were also interested in cable ties.  So I assume cable ties were used.  The only thing I can think of for cable ties would be either for locking doors or restraining people.  That would be the two ‑ ‑ ‑ 
Q.  Yeah.
A.   ‑ ‑ ‑ things I could think of.  You know, you could lock someone into a cool room, a storage room or whatever with cable tie pretty easily in the absence of a key and lock.  I'm not aware of any other objects that were used.  A knife and a ‑ a knife in a sheath you mentioned.
Q.  That's something that we were looking for at your house (indistinct).
A.  Yeah (VROI 15).
At this stage of the interview, the police had not mentioned to the appellant the manner in which the staff had been restrained or the location within the restaurant where they were kept by the offenders.
184		Eighthly, the appellant gave sworn evidence at the trial that he had a jacket and a backpack similar to those of one of the offenders, as shown in the video security footage taken at Sizzler (ts 311).
185		Ninthly, the appellant made equivocal or dubious statements when asked in the course of the video recorded interview with the police whether he was one of the offenders depicted in the video security footage taken at Sizzler:
Q.  I'm just going to show some (indistinct) footage of the CCTV footage at Sizzler there.
A.  Mm'hm.
Q.  Bear in mind this is snippets from video so it's a little bit blurry.  Have you got anything to say about these photos?
A.  Not really, Chief.
Q.  Is that you in the photos?
A.  Not ‑ not to the best of my knowledge it's not, no.
Q.  All right.  To the best of your knowledge there's a guy standing there with a balaclava on his head with black gloves and a backpack going through a till.  Is that something that could be you?
A.  It could be me, yeah.  There's nothing there that proves to me that it's definitely not me otherwise I'd be jumping up and down pointing at it.
Q.  Right.  So that's something that could quite easily be you, wearing a balaclava, taking cash out of a till?
A.  It could be me.  I can't see ‑ I can't see any features there that would without a doubt prove that it wasn't me, put it that way (VROI 19 ‑ 20).
186		Tenthly, the appellant said during the video recorded interview with the police that he had ingested a variety of drugs on the day of the robbery.  In particular, he had taken heroin with Mr Robertson, he had also taken methadone, his epilepsy medication and three Serapax (VROI 18), and he had also smoked 'a few cones' (VROI 21).  The appellant admitted to the police that in the past he had 'lost weeks' as a result of drug abuse (VROI 20), and that it was possible he was one of the offenders depicted in the video security footage.  This exchange occurred between the appellant and the interviewing police officer:
Q.  Is it possible that ‑ you're saying it could be you is because ‑ is it possible that you could've gone there and not remembered it?  Is that what you're saying?
A.  That has happened to me in the past but I'm pretty sure ‑ I'm pretty sure I'd remember something like that.  But I ‑ yeah, I have lost ‑ I have lost weeks.
Q.  The fact that we do ‑ we can place you in there with DNA ‑ ‑ ‑
A.  Yeah,
Q.   ‑ ‑ ‑ and then the fact that you look at a photo and say, you know, 'It could be me.'
A.  Yeah.
Q.  It just makes me think maybe with the fact that you might've taken so many drugs that you really didn't know what the hell you were doing.
A.  Yeah.
Q.  And maybe you could've been easily lead.  Do you know what I mean?  If you don't know what you're doing and someone's with you and says, come on let's go and do this ‑ ‑ ‑ 
A.  Yeah.
Q.   ‑ ‑ ‑ all of a sudden you look around and you're like, shit, what's going on ‑ ‑ ‑ 
A.  Yeah.
Q.   ‑ ‑ ‑ there, we're involved in an armed robbery.  So is that the point where you come from, it could possibly have been you but you can't remember?
A.  Well, I remember ‑ I remember ‑ I remember chunks of ‑ and I certainly remember the next day and the day after and the day after and there was no ‑ there was no sudden excess of money around the place or anything like that so ‑ ‑ ‑ (VROI 20 ‑ 21).
187		Eleventhly, the appellant gave sworn evidence at the trial that he was not 'an armed robber' (ts 291).  However, the record of his convictions which, as I have mentioned, was put to him in cross‑examination pursuant to s 8(1)(e) of the Evidence Act, revealed that the appellant was convicted on 13 September 1996 of nine armed robbery offences (ts 303 ‑ 304).  This evidence was admissible only for the purpose of rebutting evidence the appellant had adduced as to his good character.  The prior convictions for armed robbery showed him to be a person of bad character and reflected on his credit generally.  The trial judge rightly directed the jury that they could not use the prior convictions as propensity evidence or reason from the prior convictions that because he had committed armed robberies in the past he must have committed the robbery alleged in the current indictment (ts 372 ‑ 373).
188		After examining the trial record, I am satisfied beyond reasonable doubt on the evidence (in particular, on the basis of the matters I have referred to at [168] ‑ [186] above), that no other explanation than guilt is reasonably compatible with the evidence.  The appellant's guilt is the only reasonable and rational inference that can be drawn from the evidence (in particular, the matters I have referred to at [168] ‑ [186] above), considered as a whole.  The combined weight of all the objective circumstantial evidence, the evidence that was not genuinely in contest, the statements made by the appellant in the video recorded interview with the police, and the impact on his character and credit of the evidence of his prior convictions, is so compelling that it requires the rejection of the appellant's sworn evidence that he was not one of the offenders and his other exculpatory statements.  The crucial aspects of the appellant's sworn evidence and his other exculpatory statements were not corroborated by other, apparently or arguably reliable, evidence.  I reiterate that in considering the application of the proviso I have disregarded Mr Brewis's evidence.  I conclude that, despite the appellant having made out ground 1 of the appeal, no substantial miscarriage of justice has occurred.  The appellant's conviction on each count was correct, and those convictions should not be set aside.
Conclusion
189		I would grant leave to appeal on grounds 1 and 2 but, for the reasons I have given, I would dismiss the appeal.

190	JENKINS J:  I have had the advantage of reading the separate draft reasons of Pullin JA and Buss JA.  Both sets of reasons deal with the background to the appeal.  I will not repeat it.
Ground 1
191		I am grateful to Pullin JA and Buss JA for also setting out the established principles and cases which, I accept, govern the calling of rebuttal evidence by the State.
192		The only comment I make is in regards to the suggestion by Pullin JA that the procedure referred to in Killick v The Queen [1981] HCA 63; (1981) 147 CLR 565, 571, whereby the relevance of the rebuttal evidence in that case could have been ascertained by the Crown by asking defence counsel whether or not the accused intended to maintain his alibi at the trial, is of general application.  Admittedly, the plurality in Killick said that it was a procedure which would not have caused difficulty in that case and 'in many other cases'.  However, the comment must be seen in the context of that case, in that the Crown had been put on notice by evidence given by the accused at his bail application that he relied on an alibi.  Thus, the State could only have established that there were exceptional or very special reasons which justified it being granted leave to call evidence in rebuttal of that alibi if, during its case, it had enquired of the defence whether the foreshadowed alibi was relied on and it had either received no response or had been told that the alibi was not going to be relied on.
193		Apart from cases which are similar to Killick, I see no reason in principle why the State ought to be required to enquire of the defence, prior to the close of the State's case, what positive evidence is going to be led in the defence case.
194		Before I apply the relevant legal principles to this case, I will note some relevant factual matters.  The police located a number of black cable ties during the execution of a search warrant at the appellant's home on 25 June 2008.  It was the State's case that these ties were from the same batch of ties as the ties located at Sizzler and as the tie located at Sizzler with the appellant's DNA on it.  The police questioned the appellant about the ties found at his home.  He told the police that he used the ties to strap his home computer cords.  He said he had one bag of ties which had lasted him for three years.  He said that as far as he knew no‑one else had access to the ties and that he had not given any of them away.  He said that the ties found by the police were the only ties which he had.
195		Whilst awaiting trial the appellant applied for bail.  During the course of his bail application, the appellant relied upon an affidavit sworn by his solicitor.  Attached to the affidavit was a statutory declaration of the appellant's co‑offender, Ty Robertson, dated 23 September 2008.  In the statutory declaration, Mr Robertson said that the appellant had been employed by him in his Eco‑Wash business for about a month and a half and that the appellant had been in 'physical contact' with cable ties which were used to hold a hose on a vacuum cleaner on which the clips had broken.  He did not declare that the appellant was not his co‑offender.
196		The appellant did not give evidence at the bail application and the solicitor did not depose that he had been instructed that the information contained in Mr Robertson's statutory declaration was correct.  The tenor of the affidavit and submissions was that in the light of various matters, including the assertion in the statutory declaration, the State's case against the appellant was weak.  Although the appellant's counsel did advise the bail judge that Mr Robertson would be called to give evidence at the trial.  It was clear that this would be by the defence and not by the State.
197		In opposition to the application for bail, the State tendered a letter from Mr Robertson to his sentencing judge wherein Mr Robertson gave some details of his association with his co‑offender.  In the letter Mr Robertson described his co‑offender as an old friend with a drug habit who he employed at Eco‑Wash.  It said that one day his co‑offender had got into his car with a bag with a gun in it and asked him to commit the offence with him.  He said that he reluctantly agreed to do so and that it was his co‑offender who had tied up the people in Sizzler.  The State submitted to the bail judge that Mr Robertson's description of his co‑offender was a description of the appellant.
198		In the bail judge's reasons for refusing bail, he acknowledged that Mr Robertson provided an explanation for the appellant's DNA being on the cable tie found at Sizzler.  He also said that Mr Robertson's letter tended to identify his co‑offender as the appellant and that if Mr Robertson was called to testify at trial to the effect that the appellant was not his co‑offender, he was unlikely to be a credible witness.
199		At about 4.10 pm on 12 May 2009, during the course of the State's case at the appellant's trial, the trial judge asked defence counsel whether the accused would be calling any evidence.  In effect, counsel told the trial judge that the appellant would be the only witness for the defence (ts 248).
200		On the morning of 13 May 2009, the State gave the defence a copy of Mr Brewis' statement.  Later that morning, the State closed its case and the appellant immediately commenced his evidence.  Defence counsel had not opened the appellant's case to the jury after the prosecutor's opening address.  Neither did he open it before the appellant gave his evidence.  The appellant does not assert that he gave any other indication to the State of his defence to the DNA evidence or to the presence at Sizzler of cable ties, similar to those he had at his home.
201		The appellant was the only witness called by the defence.  In the course of his examination‑in‑chief the appellant said that he used cable ties in the course of the Eco‑Wash business to tie the suction hose closer to the mechanism of the shampooing vacuum cleaner so that it would immediately suck up the moisture left by the shampooing process and keep the area dry.  He said that he had handled the ties used for this purpose.  He was asked who owned the cable ties and he said that he had given Mr Robertson some of the cable ties he had at his home (ts 289).
202		The evidence of Mr Brewis did not form part of the State's proof of its case.  That is, putting to one side the possibility of the appellant calling evidence about his use of cable ties at Eco‑Wash, it was irrelevant to the issues which the State was required to prove that cable ties were or were not used to hold a hose or nozzle onto the vacuum cleaner at Eco‑Wash.
203		In the course of his reasons, his Honour said that it was his view that until the appellant gave his evidence, the State 'had no reason' to believe it would need to call Mr Brewis.  I would not go so far as to say that the State had no reason to believe that Mr Brewis' evidence would be relevant.  However, I am of the view that by the close of the State's case it was not reasonably foreseeable that the appellant would give evidence that his DNA had been placed on the tie found at Sizzler when he used the same tie and other ties at Eco‑Wash.
204		The explanation the appellant had given to the police that he was in possession of cable ties because he used them for his computer and that he had not given them to anyone else, in conjunction with the advice given by the appellant's counsel during the State's case that the appellant would not be calling Mr Robertson, meant that there was insufficient cause for the State to have anticipated that the appellant would give evidence as he did.  It was the appellant's evidence which rendered Mr Brewis' evidence relevant to rebut the alleged innocent explanation given by the appellant for his DNA being on the cable tie and for the balance of the cable ties being at Sizzler.
205		It is important to focus on the timing of the events.  It was only after defence counsel stated on the record that, in effect, Mr Robertson would not be called as a witness, that I consider the State was entitled to act on the premise that Mr Brewis' evidence was irrelevant to any issue between the parties.  If that advice had not been given by defence counsel, my view as to the merits of the appeal may well have been different.
206		It is also the timing of that advice which explains why the preparation of Mr Brewis' statement and its execution on the morning of 13 May, is not a telling factor against the State.  That is, up until late on 12 May when the State heard from defence counsel that Mr Robertson was not going to be called as a witness, it was reasonably foreseeable that Mr Robertson would give evidence for the accused in accordance with his statutory declaration.  The State should have appreciated that there was a need to rebut that evidence, if it could, whilst still in its own case.  Therefore, it is not surprising that the State obtained a statement from Mr Brewis.  The fact that the statement was signed on the morning of 13 May is not determinative as once the statement taking process had commenced it would be logical to conclude it, even though it was not anticipated that the statement would be required.
207		By saying that it was reasonably foreseeable that Mr Robertson would give evidence for the defence in accordance with his statutory declaration, I do not mean to assert that it was a likely eventuality.  I think that it was unlikely that Mr Robertson would be called, given the inconsistency between his statutory declaration and the letter he sent to his sentencing judge, the adverse comments made by the bail judge about his credibility and his bad character.  Nevertheless, it was reasonably foreseeable that the defence would call him and, if he was called, that he would maintain the story in his statutory declaration.
208		I do not think that the State was obliged, if it wished to succeed on an application to re‑open its case to call Mr Brewis, to make enquiries of the appellant as to whether he would be giving evidence in accordance with Mr Robertson's statutory declaration.  I distinguish this case from Killick's case because in the latter case the offender gave evidence at his bail application raising an alibi and nothing had been said between that evidence and the close of the prosecution's case to justify a view that his defence had altered.  Whereas in this case, the information the appellant gave to the police about the cable ties was difficult to reconcile with Mr Robertson's statutory declaration.  The explanation he gave to the police was inconsistent with his DNA being placed on the ties because he gave them to Mr Robertson and used the same ties to secure the nozzle of the vacuum cleaner.  The appellant had not gone into evidence during the bail application to support Mr Robertson's explanation.  He had not suggested to the police or to the State or to any witness during the trial that he had touched cable ties at Eco‑Wash.
209		Then, defence counsel said that the appellant would be the only defence witness.  At that point, the issues raised by Mr Robertson's statutory declaration became irrelevant.  The State was entitled to hold the view that it was unlikely that the appellant would give evidence to the same effect as Mr Robertson's statutory declaration as there was a high likelihood that such evidence would (as it did) contradict what he had said to the police and be detrimental to his credibility.  It was only when the appellant gave his evidence that the improbability of the appellant contradicting his explanation to the police became a reality.
210		Consequently, immediately prior to the State closing its case, it was not reasonably foreseeable that the defence would rely on the material in Mr Robertson's statutory declaration or that the appellant would give evidence in accordance with it.  Once the appellant gave his evidence, there were exceptional reasons why the State ought to have been allowed to call Mr Brewis' evidence in reply.  The trial judge did not err in the exercise of his discretion in allowing that evidence to be called.
Ground 2
211		I am grateful to Pullin JA and Buss JA for outlining the issue involved in this ground and the relevant legal principles.  It is unnecessary for me to repeat them.
212		It is not clear to me whether the passage of the prosecutor's opening address of which the appellant complains, was supposed to refer to those parts of the videoed record of interview in which the appellant said 'no comment' or similar words or to those parts in which he gave positive answers which on the State's case amounted to admissions or were lies.  I do not think that the members of the jury would have necessarily interpreted the passage in the way in which the appellant contends.
213		However, assuming that the passage was capable of being interpreted by the jury as referring to the 'no comment' or similar answers, the question is whether there was a miscarriage of justice because the jury may have been left with the impression that they could infer the appellant's guilt, in part, from the fact that he gave such answers.  Whilst that conclusion may have been able to be drawn from the prosecutor's opening address, I am satisfied that on an assessment of the trial proceedings as a whole, the jury would not have been left with such an impression.
214		In respect of the appellant's election not to comment on various matters during the course of his video record of interview, the trial judge told the jury that it was the appellant's legal right not to answer some of the questions and that the jury should not draw any adverse interference against the appellant because of his answers to that affect.  Any prejudice created or incorrect impression left by the prosecutor's opening comments was corrected by the trial judge during his directions at the end of the trial.
215		The remaining issue is whether the delay in correcting that prejudice caused a miscarriage of justice?  In my view, the comments by the prosecutor were not such as to make it imperative that the trial judge correct them immediately; although there is no doubt that the sooner any correction is made by a trial judge, the better.  The prosecutor did not explicitly say to the jury that they should draw an adverse inference about the appellant's guilt from his 'no comment' responses to questions.  Neither was the offending comment repeated in the prosecutor's opening or closing addresses.  Finally, as Pullin JA has pointed out, the failure of defence counsel to ask for an immediate correction militates against a conclusion that the offending comment was such that a miscarriage of justice occurred because there was not an immediate correction of it by the trial judge.  I would dismiss ground 2 of the appeal.
The proviso
216		Given my conclusions in respect to both grounds of appeal, it is unnecessary for me to express any view as to the application of the proviso.  However, in case I am wrong in my conclusions, I have considered whether this is a case in which the proviso can be applied and, if so, whether this court should apply the proviso.
217		For the reasons given by Buss JA, I am of the opinion that this is a case to which the proviso can be applied and to which it should be applied.