Splitting a case

R. v. Graziano, 2015 ONCA 49:

[37]       ... The proper approach would have been to consider whether permitting the Crown to call Hogan in reply offended the rule that prohibits the Crown from splitting its case. In Krause v. The Queen (1986), 29 C.C.C. (3d) 385 (S.C.C.), at pp. 390-91, McIntyre J. set out the rule against case-splitting and its rationale:

The general rule is that the Crown, or in civil matters the plaintiff, will not be allowed to split its case. The Crown or the plaintiff must produce and enter in its own case all the clearly relevant evidence it has, or that it intends to rely upon, to establish its case with respect to all the issues raised in the pleadings; in a criminal case, the indictment and any particulars… The underlying reason for this rule is that the defendant or the accused is entitled at the close of the Crown's case to have before it the full case for the Crown so that it is known from the outset what must be met in response. [Citations omitted.]

[38]       In my opinion, however, the Crown's calling Hogan in reply did not breach this rule. In Krause, at p. 391, McIntyre J. discussed the exception to the rule against case-splitting – that is, when the Crown may be entitled to call reply evidence:

The plaintiff or the Crown may be allowed to call evidence in rebuttal after completion of the defence case, where the defence has raised some new matter or defence which the Crown has had no opportunity to deal with and which the Crown or the plaintiff could not reasonably have anticipated.