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Chapter 15: Reopenings

 Table of Contents

[15.0]. Introduction 

An application by the prosecution to 're-open' its case and call 'evidence – in – rebuttal' may be made under either: 

·                     section 199 of the Criminal Procedure Code (Ch. 7); and / or 

·                     the common law.

[15.1] Criminal Procedure Code 

Section 199 of the Criminal Procedure Code (Ch. 7) states: 

'If the accused person adduces evidence in his defence introducing new matter which the prosecutor could not have foreseen, the court may allow the prosecutor to adduce evidence in reply to rebut the said matter.' (emphasis added) 

In R v Frost (1839) 9 C & P 129 Tindal CJ stated at page 159: 

'[I]f an matter arises ex improviso, which the Crown could not foresee, supposing it be entirely new matter, which they may be able to answer only by contradicting evidence, they may give evidence in reply.' (emphasis added) 

Therefore, if the prosecution should have reasonable foreseen the matter, such evidence should have been given as part of its case, see R v Scott (1984) 79 CrAppR 49. 

The prosecution may seek to call evidence to rebut matters raised for the first time when the witness/es for the defence give evidence and therefore, not during the cross – examination of the witnesses called by the prosecution. The prosecution may be permitted to 're – open' its case and therefore call witness/es to rebut the matters raised for the first time by the defence because the defence in such situations has failed to comply with the rule in Browne v Dunn. 

The law relating to that rule is examined commencing on page 363. 

See also: R v Anderson (M.) [1988] QB 678; (1988) 87 CrAppR 349; [1988] 2 AllER 549 & R v Blick (1966) 50 CrAppR 280; [1966] CrimLR 508.

[15.2] Common Law 

In R v Francis (1990) 91 CrAppR 271, [1991] 1 AllER 225 [[1990] 1 WLR 1264; [1990] CrimLR 431] Lloyd LJ, with whom the other members of the Court of Appeal concurred, outlined the following principles at pages 274 and 228 respectively: 

'(1) The general rule is that the prosecution must call the whole of their evidence before closing their case. The rule has been described as being most salutary. 

(2)               There are, however, exemptions. The best known exception is that the prosecution may call evidence in rebuttal to deal with matters which have arisen ex improvios: see Pilcher (1974) 60 CrAppR 1. [see section 199 of the Criminal Procedure Code (Ch. 7)] 

(3)               The prosecution do not have to foresee every eventuality. They are entitled to make reasonable assumptions; see Scott (1984) 79 CrAppR 49. [see section 199 of the Criminal Procedure Code (Ch. 7)] 

(4)               Another exception to the general rule is where what has been omitted is a mere formality as distinct from a central issue in the case – contrast Royal v Prescott Clarke [1966] 2 AllER 366 with Central Criminal Court, ex p. Garnier [1988] RTR 42. 

(5)               In cases within the two above exceptions the judge has a discretion to admit the evidence. Like any other discretion it must be exercised judicially and within the principles which have been established by the Court of Appeal. If the discretion is exercised in a way that no reasonable judge or no reasonable bench of magistrates could have exercised it, the decision will be set aside as erroneous in law, see Royal v Prescott Clark (supra). 

(6)               The earlier the application to admit the further evidence is made after the close of the prosecution case the more likely it is that the discretion will be exercised in favour of the prosecution […]. 

(7)               The discretion of the judge to admit the evidence after the close of the prosecution case is not confined to the two well established exceptions. 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 Davies LJ in the Doran case at p. 437 that the discretion is one which should only be exercised outside the two established exceptions on the rarest of occasions.' (emphasis added) [words in brackets added] 

Another 'exception' is the calling of evidence in rebuttal to negate evidence of good character given by the defence, see R v Butterwassen [1948] 1 KB 4; [1947] 2 AllER 415; (1948) 32 CrAppR 81 

However, the discretion to permit the prosecution to 'reopen' its case should only be exercised sparingly, see Cook v Director of Public Prosecutions [2001] CrimLR 321 & Jolley v Director of Public Prosecutions [2000] CrimLR 471. 

See also: R v Munnery (1992) 94 CrAppR 164 at page 168; James v South Glamorgan County Council (1994) 99 CrAppR 321; R v Mc Kenna (1956) 40 CrAppR 65; R v Joseph (1972) 56 CrAppR 60; Phelan v Back [1972] 1 AllER 901; [1972] 1 WLR 273; (1972) 56 CrAppR 257; R v Doran (1972) 56 CrAppR 429; [1972] CrimLR 392; R v Pilcher & others (1975) 60 CrAppR 1; R v Chin (1985) 157 CLR 671 at pages 676 – 677 & R v Dawes [1992] 2 QdR 435.

[15.3] Limits On Cross - Examination 

In R v Beckett & MacIntosh [1986] QdR 170 the Court held: 

When a witness is called in rebuttal the party against whose interests it has called has a fundamental right to cross – examine at large. [ie., in relation to all the evidence given by the witness.] 

The law relating to 'Cross – Examination' is examined commencing on page 346. 

See also: R v Howarth (1918) 13 CrAppR 99 at page 100.

[15.4] Oaths 

In R v Campbell [1933] StRQd 123 the Court held: 

No rule of law requires a Court to remind a witness who had been recalled that he/she is still on his/her former oath, the oath being binding for the whole case. 

However, as a matter of practice witnesses should be so reminded.