One of two witnesses whom the prosecution desired to call at the hearing of an information had not arrived. The available witness was called. The prosecution case closed. The defendant gave evidence and his case closed. The justices had retired to consider their decision when they were informed that the second prosecution witness, whose car had broken down, had arrived. They returned to court and allowed the prosecution to call him. His evidence corroborated that of the first prosecution witness. The defendant was convicted.
Held: Although justices have a discretion to allow further evidence to be called in particular circumstances, the manner of exercise depends on the stage of the case. In the absence of very special circumstances, they should not allow evidence to be called after they have retired, and that such circumstances being absent, the further evidence for the prosecution had been wrongly admitted, and the appeal would be allowed and the conviction quashed.
Lord Parker CJ: ‘It is, of course, quite clear under our law that he who affirms must prove. Therefore strictly once the prosecution have closed their case there will be no opportunity for them to call further evidence, subject of course to evidence in rebuttal, with which we are not concerned. Nevertheless, it does seem to me that there must always be some residuary discretion of the court to allow, in particular circumstances, evidence to be called, but the manner in which that discretion is exercised must depend on the stage of the case. When one turns to indictable offences it is perfectly clear that it has become now an established rule of law that no evidence can be called after the summing up and the judge, who in his discretion sought to exercise his discretion by allowing evidence to be called at that stage, would be acting entirely wrongly and the conviction would be quashed.
The same considerations do not wholly apply in the Magistrates’ Court but, nevertheless, as a general rule and in the absence of some special circumstances it would certainly be wholly wrong for the justices to purport to exercise a discretion to allow evidence to be called once they have retired and, indeed, probably after the defence had closed their case. At an earlier stage it may well be proper to exercise the discretion in favour of allowing the witness to be called and indeed that was suggested in the decision of this court in Saunders v Johns.’
‘So far as this case is concerned I am quite satisfied that there was only one way in which any residuary discretion in the justices could have been exercised, the prosecution having closed their case, the defence having closed their case and they having retired. In those circumstances, I think there is no option but to quash this conviction.’
Winn LJ: ‘This is not one of those cases in which there were the very special circumstances to which Lord Parker CJ has referred.’
Lord Parker CJ, Winn LJ and Sachs J
 1 WLR 245
Cited – Antonio Leeson v Haringey Justices and Director of Public Prosecutions Admn 26-Jul-1999
The prosecutor on a charge of driving with excess alcohol had failed to adduce evidence as to the calibration of the intoximeter. The magistrates allowed him to re-open his case. The defendant appealed.
Held: The appeal was dismissed: ‘If the . .
Cited – Phelan v Back 1972
Cited – Traves, Regina (on the Application Of) v Director of Public Prosecutions Admn 30-Jun-2005
The defendant appealed conviction involving allegations that he was driving. He was sat at the wheel of a vehicle being towed by means of a rigid steel bar. He denied that he was driving, but had both steered and braked.
Held: The magistrates . .
Lists of cited by and citing cases may be incomplete.
Criminal Practice, Magistrates
Updated: 29 April 2022; Ref: scu.195677