NG v DPP

Magistrates have a residual discretion to admit further prosecution evidence after retiring to consider their verdict, but its exercise requires special circumstances and careful attention to fairness. The discretion is not confined to technical omissions. The court should consider the overriding objective of dealing with criminal cases justly, the real issues raised by the defence, and any risk of prejudice. A defence advocate should identify material objections in a timely manner. Delaying a point until final submissions may amount to an improper ambush and may justify allowing the prosecution to answer it where the defendant suffers no injustice.

The judgment concerned an appeal by way of case stated from a magistrates’ court conviction for driving with excess alcohol. The magistrates initially considered that the prosecution had not proved compliance with the statutory warning requirement. After announcing that conclusion but before formally dismissing the case, they recalled the prosecution witness, admitted further evidence, and convicted the appellant. They also found that duress of circumstances ceased to avail her when she drove on after contacting the police.

The questions were whether the magistrates could admit further evidence after retiring and beginning to announce their decision, and whether they could direct the witness to a marked part of a pro-forma document.

1. The appeal was dismissed. The magistrates were entitled to answer both questions in the affirmative.
2. Magistrates’ courts possess a general or residual discretion to receive further evidence after the parties have closed their cases. The position is more restricted after the bench has retired, but special circumstances may justify exercising the discretion.
3. The relevant considerations include the overall interests of justice and, in particular, any risk of prejudice to the defendant. The prosecution must ordinarily finish its case once and for all, but that general rule is not absolute.
4. The defence had not raised the statutory-warning issue in cross-examination or when the relevant evidence was tendered. Raising it for the first time in final speech was an improper defence ambush. The defence’s duty to identify the real issues, reflected in the Criminal Procedure Rules, meant that the magistrates could properly allow the prosecution to respond.
5. There was no injustice to the appellant. She could have disputed the recalled evidence but did not do so. The magistrates were therefore entitled to recall the witness despite having retired and partially announced their decision.
6. The court respectfully disagreed with R (Traves) v DPP, holding that it was wrongly decided and inconsistent with MacDonald v Skelt. The magistrates’ conclusion on the statutory warning and the admissibility of the printouts was upheld. Their conclusion on duress was also upheld.

• High Court (Administrative Court): The appeal by way of case stated from the magistrates’ court conviction was dismissed. Both questions were answered affirmatively.