Graham, R v

A trial judge has a discretion to permit the prosecution to re-open its case and adduce admissible evidence after the close of the prosecution case. The discretion must be exercised with care and caution. The ordinary rule remains that evidence probative of guilt should be called before the prosecution closes its case, but exceptions may arise where material was not previously available.

The court must fairly balance the prejudice caused to the defendant, including disruption to an established trial strategy, against the interests of justice. Late admission is not to excuse deficient police practice. It may nevertheless be fair where the evidence is newly identified, the prosecution acts promptly once its significance is known, and the issue could not practically be avoided by discharging the jury because the material would be available at a retrial.

The appellant was convicted at Manchester Crown Court of the murder of Jordan Ross and the attempted murder of Christopher Smith. During the trial he also pleaded guilty to wounding Smith with intent after further video footage showed multiple stabbings.

After the appellant had substantially completed his evidence in chief, the prosecution obtained video material from the telephone of Jordan Brown. The footage was relevant both to the fatal attack and to the appellant’s account of the attack on Smith. The trial judge allowed the prosecution to re-open its case and admit the evidence.

On an appeal against conviction brought with the leave of the single judge, the central issue was whether that ruling was an unfair exercise of the judge’s discretion.

1. Appeal dismissed. The judge was entitled to permit the prosecution to re-open its case and adduce the newly identified video evidence.
2. A trial judge has a discretion to admit evidence after the close of the prosecution case. It must be exercised carefully and cautiously. The ordinary rule remains that the prosecution should call, before closing its case, all evidence on which it relies to prove guilt: R v Rice [1963] 1 QB 857.
3. The court rejected any suggestion that the ruling excused careless police practice. On the accepted evidence, examination of Brown’s telephone was initially a routine enquiry directed principally to violent disorder. Its relevant material was manually identified only as the appellant began to give evidence. Once its significance became apparent, the prosecution acted swiftly. The judge was entitled to treat the material as evidence not previously available, while recognising elements of evidence arising unexpectedly.
4. The judge had properly considered the substantial prejudice to the appellant. His trial strategy had been disrupted after he had given evidence in chief. However, he received an exceptional opportunity to consult both leading and junior counsel and to give further evidence. The interests of justice justified admission of the evidence despite the stress and forensic difficulty caused by its late arrival.
5. Discharging the jury would not have cured any material unfairness. The footage would have been available at a retrial, and the appellant’s later admission of multiple stabbings would also have been relevant and admissible on the attempted-murder charge. The judge’s conclusion was open to him and created no precedent encouraging late evidence.

• Court of Appeal (Criminal Division): By leave of the single judge, dismissed the appeal against conviction: [2019] EWCA Crim 2141.
• Crown Court at Manchester: On 9 April 2018, convicted the appellant of murder and attempted murder. He was sentenced to life imprisonment for murder with a minimum term of 26 years less time on remand, and a minimum term of 10 years for attempted murder.