An error by a trial judge in permitting the prosecution to split its case or adduce rebuttal evidence does not necessarily constitute a fundamental irregularity precluding application of the proviso under s 30(4) of the Criminal Appeals Act 2004 (WA). The proviso may be applied where the appellate court is satisfied beyond reasonable doubt of guilt on the remaining evidence, even where the accused gave sworn evidence, provided the combined weight of objective circumstantial evidence, uncontested evidence, and prior convictions is so compelling as to require rejection of the accused's account. The prosecution's obligation to foresee the need for rebuttal evidence must be assessed by reference to the state of the issues at the close of the prosecution case, including any indications given by defence counsel about the intended defence.
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