TUTORIAL 17 & 18

Question 2
Issue
Whether the Magistrate/Parish Judge had a basis in law for allowing the Crown to re-open its
case and lead the relevant evidence.
Law
The general rule is that the prosecution must call the whole of their evidence before closing their
case (R v Central Criminal Court ex parte Garnier [1988]; R v Scott; R v Pilcher )
The courts, however have the discretion to allow either party to adduce further evidence at any
time before they retire. (Malcolm v DPP 2007). At one stage it was determined that this
discretion was limited to two exceptions. However, in Jolly v DPP 2000 it was stated that the
discretion to allow the prosecution to re-open their case is not limited to the exceptions of
matters of evidence in rebuttal due to ex improviso or technicalities but is a ‘general discretion’
(see Jolly’s case per Kennedy LJ).
The principles to govern this discretion was outlined in Tuck v Vehicle Inspectorate 2004,
including that:
a) The exercise of this discretion should not be interfered with by the higher court
unless its exercise was wrong in principle and perverse (R v Tate [1977])
b) The discretion will only be exercised on the rarest of occasions (R v Francis 1990)
c) The discretion must be exercised cautiously having regard to the need to be fair to
the defendant (Matthews v Morrison 1981) and giving consideration as to whether
any prejudice will be caused (R v Tate)
d) The overall interest of justice include giving effect to the requirement that the
prosecution should not fail due to inefficiency, carelessness or oversight (Leeson
v DPP 2000).
Analysis
Based on the above authorities, the court does have a general discretion to allow either party to
reopen their case to adduce further evidence before they retire. However, the question was
whether this discretion was improperly exercised, thereby being open to be reversed by the
higher court on appeal.
In R v Francis (1990) it was raised on appeal that the trial judge had no discretion to allow the
prosecution to reopen its case beyond the two established exceptions. In that case, the defence
had made a no case submission following the closing of the prosecution case on the basis that the
prosecution failed to adduce evidence to confirm that the defendant was indeed the person
pointed out in the group identification parade as the thief. The trial judge considered that this
omission did not fall within the two exceptions since it was not a case of ex improviso rebuttal
evidence nor a matter of mere technicality.
In deciding to allow the prosecution to reopen its case, the court took into consideration the fact
that the failure to confirm the identification of the appellant was not a mere formality but an
important, if minor link, in the chain of identification evidence. also of importance was the fact
that the omission was not an oversight of the prosecution but a misunderstanding between the
counsels, in that the prosecution was not aware that the ID was in issue so the witness though
called, was not asked to confirm the point later in issue.
The facts of R v Francis are similar to the present case of Derby. The trial judge would be
correct to consider that the factor of the confirmation of the identification of the appellant was
important, and not a mere technicality. No further justification has been provided by the
prosecution in this case. However, in the Jamaican case of Williams (Gerville) et al v R 2019,
Brooks JA cited other justifications which may warrant consideration in the decision to exercise
discretion.
In Audley Coleman v R, the appeal was based on the failure of the prosecution to tender
certificate to confirm that the vegetable matter found in the trunk of the car was indeed ganja.
The court of appeal found that the trial judge’s discretion to allow the prosecution to reopen its
case was judicially exercised due to the evidence that was otherwise led by the prosecution.
Namely the fact that the contents of the car was sent to the forensic laboratory and that a
certificate along with the specimen sent were subsequently collected. These were admitted in
evidence and not disputed by the defence. It was also found that the judge had exercised her
discretion in circumstances in which the defendant could not be taken by surprise and could
not therefore suffer prejudice.
In Williams (Gerville) et al v R, the court of appeal in considering whether the parish judge
correctly exercised her discretion in allowing the prosecution to reopen its case, noted with
approval that the learned judge considered inter-alia:

 The timing of the application

 The validity of the proffered reason (in that case ‘oversight’)
 Whether the appellant would have been taken by surprise; and
 The probative value of the additional evidence as against its prejudicial effect.

In the case of Williams, the timing of the application occurred before the oral no case submission
and before defence commenced its case. This was deemed to be important as it was not a case of
the defence losing its tactical advantage having disclosed its hand. In the instant case, the
application followed the no case submission of the defence. It may be considered that the timing
was not advantageous to the defence.
Although no reason has been provided in the case under consideration (Derby) why the evidence
was not submitted during the prosecution’s case, it may be concluded that the appellant would
not have been taken by surprise. In that, other evidence would have been adduced in the trial on
the matter of the identification of Derby, in the form of videotape evidence and eye witnesses.
The confirmation that the appellant was indeed the same person pointed out in the identification
parade, would therefore not come as a surprise.
Similarly, the evidence to confirm the outcome of the identification parade has important
probative value in establishing that the appellant committed the crime. The prejudicial effect
would be minimal given other evidence already adduced which went to the identification of the
appellant as the perpetrator.
Finally, as laid out in Tuck, the court of appeal may consider that in the overall interest of
justice, the prosecution should not fail because of an oversight, inefficiency or carelessness on
the part of the prosecution.
Conclusion
The court of appeal is likely to find that the trial judge had a basis in law for exercising its
discretion to allow the prosecution to reopen its case to adduce evidence to confirm that the
appellant was the person identified in the identification parade as having committed the crime.
Further, that this discretion was judicially exercised due to the other identification evidence led
by the prosecution, the fact that admission of further evidence would not surprise the appellant
and would not be prejudicial. The court of appeal is therefore unlikely to disturb the decision of
the trial judge.