OPINION

ISSUE
Did the Parish Judge have a legal basis for allowing the Crown to re-open its case
and lead the relevant evidence?

RULE

As a general rule, the prosecution is not allowed to call further evidence after they
have formally closed their case. The general principle of practice requires that all
evidentiary material the prosecution intends to rely upon as probative of the
defendant’s guilt, should be adduced before the close of its case, if it is available
then.

Whether evidence subsequently available to the prosecution should be introduced at

a later stage is a matter for the trial judge’s discretion. This only applies to matters
put in cross-examination to a defendant which could and should have been proved
as part of the case for the Crown. Also, the judge’s discretion must be exercised
within the limits imposed by the authorities and in such a way, and subject to such
safeguards as seen to him best suited to achieve justice between the Crown and the
defendant.

i) Ex Improviso

The question that may therefore be asked is, in what instances are judges allowed to
exercise this discretion? A judge is allowed to use his discretion and allow the
Prosecution to re-open its case if the matter arises ex improviso. When a matter
arises ex improviso it means no human ingenuity could have foreseen it. When this
occurs, as in R v Blick (1966) 50 Cr App R280, the Prosecution can apply for leave
from the judge to adduce rebutting evidence to counter an allegation made by the
defence. A conviction may however, be overturned, as in the case of R v McKain
(1984) 47 WIR 290, if the evidence is not found to have arisen ex improviso.

ii) Evidence of a Formal Nature

Another instant in which a trial judge may allow the Prosecution to re-open its case is
where the Prosecution failed to lead evidence of a formal nature. This is to allow it to
repair the omission. In R v Francis [1990] 1WRL 1264, the court found that the
judge did not improperly exercise her discretion when she permitted the Prosecution
to reopen its case after it had failed to initially lead evidence as to the appellant’s
position on an identification parade. The omission was not due to oversight by
counsel for the prosecution but to a misunderstanding between counsel for the
prosecution and for the appellant. The court also found that the omission was "an
essential, if minor, link in the chain of the identification evidence".

Facts:

The Defendant pleaded not guilty to a charge of robbery. The Prosecution’s case
depended upon the evidence of an eye witness who testified that the man standing
at position 20 at a group identification, at which the Defendant had been present,
was one of the robbers. Counsel for the Defendant submitted at the close of the
Prosecution’s case that there was no case to answer since no evidence had been
called to prove that the man at position 20 in the parade was the defendant. The trial
judge allowed the Prosecution to recall the officer in charge of the group
identification to give evidence to that effect on the basis that Counsel's failure to call
the evidence earlier had been due to his belief that it was not in issue that the man
identified by the witness was the Defendant. The Defendant was convicted.

iii) Interest of Justice

The trial judge also has a general discretion to permit the Crown to re-open its case
once it is in the interest of justice.
Facts:
In R v Gerville Williams et al [2019] JMCA Crim 29, the appellants, Messrs
Gerville Williams, Kenneth Daley, Francis Rennals, David Hutchinson, Devon Noble
and Marcel Dixon and Ms Petro Green, who were members of the Jamaica
Constabulary Force (JCF) were convicted on 28 July 2014, for the offence of failing
to comply with a lawful requirement of the Independent Commission of Investigations
(INDECOM), without lawful justification or excuse. They were sentenced, on 31 July
2014, to pay a fine of $650,000.00 or to serve six months imprisonment in lieu of
payment. They were each allowed time to pay. They have paid the fines but have
appealed against their convictions and sentences. Among the Grounds of Appeal
was "Ground 2 - That the notices from [INDECOM] were short served and did not
provide the Appellants with a reasonable time to place themselves in a position to
comply therewith."

The facts are that on 11 September 2013, the Prosecution closed its case. Counsel
for the defence indicated a desire to make submissions that there was no case to
answer. The learned Parish Court Judge made a case management order for the
parties to file all written submissions and response by the end of November 2013.
The case was next before the learned Parish Court Judge on 27 May 2014. At that
time, the Prosecution applied in writing to re-open its case. The reason given for the
application was it wished to adduce further evidence of service of the section 21
notices. Counsel for the Prosecution said that it was due to oversight that the
evidence had not been previously adduced.

Counsel for the defence objected in writing. The objections were made on the same
date.

The application had been made prior to the oral no-case submissions. The learned
Parish Court Judge granted the application.

Upon the re-opening of the Prosecution's case, evidence was adduced through the
Commissioner as to the affidavit of Mr Hutchinson, which had been filed in the
related constitutional proceedings in the Supreme Court.

The law and analysis

[38] The learned editors of Blackstone’s Criminal Practice 2018, state at paragraph
F6.2: “It is a rule of practice, but not law, that all of the evidence which the
prosecution intend to rely on as probative of the guilt of the accused should be called
before the close of their case (Rice [1963] 1 QB 857)”.

Lloyd LJ, in R v Francis (1990) commented that the rule has been described "as
being most salutary". The learned appellate judge opined that there are, however,
exceptions to the general rule. He stated that the Prosecution may be allowed to re-
open its case:
a) to call evidence in rebuttal of a matter that would have arisen unexpectedly or
without warning; and

b) to adduce evidence, which had been omitted, where such evidence was a mere
formality and not a central issue in the case.

[40] The general rule, Lloyd LJ opined, is not restricted to the two settled
exceptions.

Instead, in analyzing the extent of the judge’s discretion, he observed that:

“...There is a wider discretion. We refrain from defining precisely the limit of that
discretion since we cannot foresee all the circumstances in which it might fall to be
exercised. It is of the essence of any discretion that it should be kept flexible. But lest
there be any misunderstanding, and lest it be thought we are opening the door too
wide, we would echo what was said by Edmund Davis LJ in R v Doran [(1972) 56
Cr App R 429 at page 437] that the discretion is one which should only be exercised
outside the two established exceptions on the rarest of occasions.”

[46] In the instant case, the learned Parish Court Judge referred to R v Francis and
other cases, and conducted a careful analysis of the Prosecution’s application, using
the guidance from those cases. She correctly acknowledged that her discretion to
admit evidence after the close of the Prosecution's case was not confined to the
established exceptions and that there is a "wider discretion" which must be exercised
cautiously as regards to the specific facts in a case.

Malcolm v DPP:

In Malcolm v DPP [2007] 1 WRL 1230, the Appellant was convicted of the offence
of driving a motor vehicle on a road when the proportion of alcohol in her breathe
exceeded the prescribed limit, contrary to s5(1)(a) of the Road Traffic Act 1988.

The issue raised on appeal was whether the magistrates, who had retired to
consider their verdict, and had announced their decision adverse to the Prosecution
on a point raised by Ms. Calder in her final speech, were entitled to permit the
prosecution to call further evidence to meet that point, as they did. The Justices,
having ruled in favour of the defendant, allowed the Prosecutor to re-open his case
and call evidence that the specimen taken and the specimen analyzed were the
same. On appeal, the Divisional Court rejected the argument that the Justices were
functus officio (of no further official authority or legal effect). It was stated that to
allow the Prosecutor to re-open his case was neither perverse nor wrong in principle
and their exercise of discretion cannot be faulted. The Justices, they said, had a
general discretion as to whether they would allow the Prosecution to call any more
evidence after closing his case. The appeal was dismissed.

APPLICATION

The circumstances of Derby Krett and those seen in R v Francis are similar to the
extent that they involve issues of an identification parade and the Prosecution’s case
being allowed to be re-opened. In Francis, the Crown was allowed to re-open its
case to address a problem of formality; not because of an omission, but because of
a misunderstanding between the two sets of Counsel. At the judge’s discretion, he
was allowed to correct that. Krett’s case is distinguished from Francis in that, what
the Prosecution had failed to do in Krett’s trial, was to establish that he was the same
man who had been pointed out on the identification parade as being the thief. This
was a crucial element of the Crown’s case. For the ex improviso rule to apply, the
Prosecutor would have had to become aware of evidence which it could not have
foreseen, example R v Blick. Evidence available to the Prosecution ab initio (from
the beginning), the relevance of which does not arise ex improviso, is inadmissible.

The formulation in R v Levy & Tail 50 Cr. App. R 198, leaves the position clear that
obviously relevant evidence must be led on the Crown’s case. The Court may
exercise a discretion where evidence is ‘marginally, minimally or doubtfully relevant
to the issues’. More recently in R v Scott 79 Cr. App. R 49 the Court of Appeal
stated that evidence that is reasonably foreseen to be relevant to proving the
Prosecution’s case, should be led on their case. A central issue to Krett’s case is the
identity of the offender and evidence about identification was in the possession of the
Prosecution ab initio. The evidence was relevant, reasonably foreseen to be
necessary to prove their case, and if not led on their case would be inadmissible.
The Prosecution cannot seek to remedy the obvious defect in its case via this
means, That is, applying for their case to be re-opened.
The no-case submission should have been upheld by the trial judge.