Judgments - Regina v. Z (On Appeal From The Court of Appeal (Criminal Division))

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    A consideration of the authorities and of the textbook writers and commentators leads me to the following conclusions:

(1) The principle of double jeopardy operates to cause a criminal court in the exercise of its discretion, and subject to the qualification as to special circumstances stated by Lord Devlin in Connelly at p. 1360, to stop a prosecution where the defendant is being prosecuted on the same facts or substantially the same facts as gave rise to an earlier prosecution which resulted in his acquittal (or conviction), as occurred in Reg. v. Riebold [1967] 1 W.L.R 674 and the cases cited by Lord Pearce in Connelly at pp. 1362-1364, and see also Reg. v. Beedie [1998] Q.B. 356.

(2) Provided that a defendant is not placed in double jeopardy as described in (1) above evidence which is relevant on a subsequent prosecution is not inadmissible because it shows or tends to show that the defendant was, in fact, guilty of an offence of which he had earlier been acquitted.

(3) It follows from (2) above that a distinction should not be drawn between evidence which shows guilt of an earlier offence of which the defendant had been acquitted and evidence which tends to show guilt of such an offence or which appears to relate to one distinct issue rather than to the issue of guilt of such an offence. Accordingly the judgments in G. (An Infant) v.Coltart [1967] 1 Q.B. 432 should not be followed.

    I would wish to add that the issue which arose in Reg. v. Hay (1983) 77 Cr.App.R. 70 as to the effect of a prior acquittal when the Crown on a subsequent prosecution seeks to rely on part of a confession, the other part of which the earlier jury has not accepted, does not arise in the present case and therefore, without intending to cast any doubt on the decision, I express no opinion upon it.

    These conclusions to which I have come accord with the conclusion at paragraphs 8.38, 8.39 and 8.40 of the Law Commission's Consultation Paper No. 156 on "Double Jeopardy":

    "8.38. In this part [Part VIII] we have argued that the rule in Sambasivam has two distinct applications. First, it protects the defendant against double jeopardy, by preventing the prosecution from bringing another charge inconsistent with a previous acquittal. But, given our proposal that the rule against double jeopardy should be retained and indeed extended, the rule in Sambasivam is not needed for this purpose. In this respect it is harmless, provided it is subject to the same exceptions as the double jeopardy rule, but redundant.

    "8.39. The second application of the rule is in the case where the charge laid is not itself inconsistent with the previous acquittal, but the prosecution seeks to adduce evidence which, if accepted, means that the defendant must have been guilty of the offence of which he or she was acquitted. In this context the rule seems to work as a kind of issue estoppel. But even in civil law the doctrine of issue estoppel is subject to certain qualifications, which must be equally applicable to any counterpart of that doctrine in criminal law. For example, it apparently does not apply where new evidence has emerged since the previous decision. Moreover, it does not render evidence inadmissible: it states that, once an issue has been determined, it is no longer an issue in subsequent proceedings between the same parties. In criminal law this would presumably mean only that the defendant cannot be charged with an offence if one of the elements of that offence (not just the evidence of it) is the defendant's guilt of an offence of which he or she has already been acquitted. But in that case the charge would arise out of the same facts as the first. It would therefore be a case of double jeopardy. It seems to follow that the rule in Sambasivam cannot properly be applied outside the context of double jeopardy - where it is redundant.

    "8.40. We provisionally propose that (1) subject to the rule against double jeopardy and the rules on the admissibility of evidence of a defendant's previous misconduct, the rule in Sambasivam (which prevents the prosecution from making an assertion which is inconsistent with a previous acquittal of the defendant) should be abolished; and (2) if, contrary to our proposal, the rule is retained, it should not apply to an assertion supported by new evidence which could not with due diligence have been adduced at the first trial."

    My conclusions also accord with the decision to which the Court of Appeal would have come if it had not considered itself bound by the weight of authority to allow the appeal.

    In the present case the defendant is not placed in double jeopardy because the facts giving rise to the present prosecution are different to the facts which gave rise to the earlier prosecutions. The evidence of the earlier complainants is accepted to be relevant and to come within the ambit of the similar facts rule and therefore I am of opinion that it is not inadmissible because it shows that the defendant was, in fact, guilty of the offences of rape of which he had earlier been acquitted.

    I consider that it is appropriate to substitute the word "shows" for the word "proves" in the certified question so that it reads:

    "Other than in cases of autrefois acquit, (a) is evidence admissible on behalf of the Crown in a trial for offence A which also [shows] guilt in respect of one or more prior incidents (B, C and D) in respect of each of which the defendant has been tried and acquitted; and more particularly (b) is evidence so admissible if its nature and purpose is to show guilt in respect of offence A on the basis that offence A was not an isolated offence, but one in a series of similar incidents (including those in respect of which the defendant was tried and acquitted)?"

    For the reasons which I have given I would answer part (a) of the question, "Yes, if the evidence is relevant to offence A," and I would answer part (b) of the question, "Yes, if the evidence is relevant to offence A and admissible under the similar facts rule, but subject in both cases to the discretion of the judge to exclude the evidence after weighing its prejudicial effect against its probative force or under section 78 of the Police and Criminal Evidence Act 1984."

    After I had written this speech but before judgment was given Mr. Perry, counsel for the Crown, very properly brought to the attention of your Lordships the judgment of the Supreme Court of Canada in R. v. ARP [2000] 2 L.R.C. 119 which had come to his notice in the course of research which he was carrying out in relation to another case. He also sent a copy of the judgment to counsel for the defendant. In delivering the judgment of the Supreme Court Cory J. considered the effect of a prior acquittal on the admissibility of evidence at a subsequent trial. He said at p. 145:

    "Finally, the appellant relies upon cases in which the Crown was prohibited from adducing as similar fact evidence in a subsequent trial of the same accused, testimony given in proceedings in which the accused was acquitted . . .

    Those cases which have restricted the use of evidence underlying an acquittal as similar fact evidence in a subsequent trial of the same accused have done so on the basis of this court's decision in Grdic v. R [1985] 1 S.C.R. 810. Lamer J. wrote for the majority of the court (at p. 825):

    'There are not different kinds of acquittals and, on that point, I share the view that 'as a matter of fundamental policy in the administration of the criminal law it must be accepted by the Crown in a subsequent criminal proceeding that an acquittal is the equivalent to a finding of innocence' . . . To reach behind the acquittal, to qualify it, is in effect to introduce the verdict of 'not proven,' which . . . has never been . . . part of our law . . . However, this does not mean that, for the purpose of the application of the doctrine of res judicata, the Crown is estopped from re-litigating all or any of the issues raised in the first trial. But it does mean that any issue, the resolution of which had to be in favour of the accused as a prerequisite to the acquittal, is irrevocably deemed to have been found conclusively in favour of the accused . . .'

    The principle enunciated in Grdic is fundamental to our system of justice. It seeks to ensure that an accused need not repeatedly defend himself against the same allegations. Nevertheless, in certain circumstances, the fact of an accused's prior acquittal may have relevance to an ultimate issue in a subsequent trial. For example, in R. v. Ollis [1900] 2 Q.B. 758, the accused was charged with obtaining money by false pretences. He had obtained funds in exchange for a cheque that was later dishonoured. The accused was acquitted at his first trial on the basis that when he gave the cheque to the complainant, he expected to receive funds to cover it. The accused was later again indicted with obtaining money by false pretences, and at his second trial the Crown adduced the evidence of the first complainant as relevant to the accused's guilty state of mind. The court held that the evidence was properly admissible. As Widgery J. stated in G (An Infant) v. Coltart [1967] 1 All E.R. 271, 276:

      '. . . it may well happen that evidence relating to the charge giving rise to the acquittal will be called on the subsequent charge, but, if it is so called, it will be called because it has relevance to the subsequent charge quite independently of any question whether the accused was guilty or innocent of the first charge.' (Our emphasis.)

    On the basis of this reasoning, the evidence of the prior acquittal in Ollis was correctly admitted. It was admitted to prove intent. Even if the accused was acquitted of the first charge, the fact that he had been tried on similar charges once before went to his knowledge of wrongdoing irrespective of his guilt on the first charge. The fact of his prior trial and acquittal could be admitted for this limited purpose, but would of course require a careful instruction from the trial judge. Yet, in most situations, it will be unfair and inappropriate to admit the evidence underlying the prior acquittal as similar fact evidence in a subsequent trial of the same accused."

    My Lords, this passage in the judgment of the Supreme Court does not cause me to alter the opinion which I have stated and, with great respect, I differ from the reasoning contained in it. I consider that the concern that "an accused need not repeatedly defend himself against the same allegations" is met by the observation of Darling J. in Reg. v. Ollis at p. 780 where he said:

    "I feel sure that [the words 'bis vexatus'] are not to be understood as meaning that a man is not to be more than once annoyed by the same evidence. I think they mean that he is not to be by legal process twice exposed to the risk of being found guilty of the same crime . . ."

    And, for the reasons which I have stated, I consider that the distinction between Reg. v. Ollis and G (An Infant) v. Coltart is a distinction which cannot be maintained.

    Accordingly, I would allow the appeal.


My Lords,

I agree that this appeal should be allowed for the reasons given by my noble and learned friend Lord Hutton.

    The correct answer to be given in this case is clear. It was a case of similar facts. Similar facts are admissible because they are relevant to the proof of the defendant's guilt. The evidence relating to one incident taken in isolation may be unconvincing. It may depend upon a straight conflict of evidence between two people. It may leave open seemingly plausible explanations. The guilt of the defendant may not be proved beyond reasonable doubt. But, when evidence is given of a number of similar incidents, the position may be changed. The evidence of the defendant's guilt may become overwhelming. The fact that a number of witnesses come forward and without collusion give a similar account of the defendant's behaviour may give credit to the evidence of each of them and discredit the denials of the defendant. Evidence of system may negative a defence of accident. This is the simple truth upon which similar fact evidence is admitted: it has probative value and is not merely prejudicial.

    It follows from this that on the first such occasion and, may be, some subsequent occasions as well, the defendant will not have been prosecuted or, if prosecuted and tried, may have been acquitted. There will not have been enough evidence to convince a jury of his guilt. This is proper. But there will come a time when the accumulating evidence does suffice and a jury which can hear all the evidence now available should convict the defendant.

    It is not disputed that the jury may hear about similar incidents which have not been the subject of a previous trial. The dispute is whether the jury may hear about similar incidents which have been the subject of earlier trials at which the defendant was acquitted. It would be a denial of the principle upon which similar fact evidence is admitted that such evidence should be treated as inadmissible. As I will stress, there will always be a question whether the trial judge should exercise his discretion to exclude the evidence under section 78 of the Police and Criminal Evidence Act 1984. But as regards admissibility, it is in principle admissible.

    There can however be a wide variety of situations. A man may have to face a series of similar allegations of rape made by different women. His defence may on each occasion be consent or, at least, his belief that the woman was consenting. The defence may be difficult to rebut and he may be acquitted a number of times. But after a time it may become implausible and the case become overwhelming that he must have realised that the woman concerned did not consent or at least have been reckless whether she did or not. Such an example might not even involve the suggestion that the defendant actually was guilty on the earlier occasions. He may on those occasions have thought she was consenting and have been properly acquitted.

    Or one can postulate a series of trials of the same defendant where the issue was whether the relevant complainant was telling the truth in saying that she was the victim of a forcible rape and was doing her best to fight off the defendant, evidence which at each trial the defendant contradicted by his evidence that the incident was amicable and friendly and she fully consented - a direct conflict of evidence. Evidence given at the later trial of a previous similar incident will only be relevant if the jury accept that that complainant is telling the truth, otherwise it has no probative value to the prosecution. The jury at the later trial would therefore have to consider whether to believe her and the defendant would be faced with needing to give evidence which would persuade the jury that she should not be believed. The issue raised at the previous trial would be tried again at the later trial and the defendant would be having to defend himself again. If the jury at the later trial decide to accept that complainant's evidence, they will be arriving at a decision inconsistent with that arrived at by the jury at the previous trial at which he was acquitted. But it may be proper that they should do so since the evidence will be different.

    Or, the acquittal at the previous trial could have come about in a different way. The defendant's case then might have been that he was not the man who raped the woman; it was a case of mistaken identity. The defendant may have called alibi evidence. To admit at the later trial as a similar fact evidence of the earlier rape, which had not at the previous trial been proved to involve the defendant, would necessitate the prosecution at the later trial trying to prove his involvement in the earlier incident with the need to negative the alibi defence given at the previous trial. Here the previous acquittal would put in question the propriety of allowing 'similar' fact evidence to be given at all.

    Thus there is a spectrum. At one end, there are similar facts which have a clear relevance and probative value at the later trial and proof of which may only marginally question the previous acquittal. At the other end, there are allegedly similar facts the relevance and probative value of which has to be proved and which, when proved, will directly controvert the previous acquittal. In between there are a variety of situations both as regards relevance and probative value and as regards the inconsistency with the previous acquittal.

    I agree that the rule in Sambasivam v. Public Prosecutor, Federation of Malaya [1950] A.C. 458 which seeks to exclude all such evidence does not provide an appropriate answer to the questions raised. Since that case was decided criminal procedure has moved on. The law governing the admission of similar fact evidence has been refined. The Police and Criminal Evidence Act 1984 makes express provision for the exclusion of unfair evidence. The trial judge has a discretion, which he must exercise, to refuse to allow evidence to be given if it appears to him that, having regard to all the circumstances, to allow it would have a significant adverse effect on the fairness of the proceedings. The rule as a rule of admissibility is properly confined to the principle of double jeopardy, using that term in its broader sense explained by my noble and learned friend in his speech.

    But there does remain the important question of fairness. Fairness requires that the jury hear all relevant evidence. It also requires that the defendant shall not without sufficient reason be required more than once to rebut the same factual allegations. In principle a case supported by probative similar fact evidence is a sufficient reason. However, in exercising his discretion under section 78, the judge must take into account the position of both the prosecution and the defendant. If the fairness of the trial will be compromised by the non-exclusion of the similar fact evidence, the evidence should be excluded although otherwise admissible. Trial judges are experienced in exercising their discretion under section 78 and regularly have to balance probative value against prejudice. Any prejudice to the defendant arising from having to deal a second time with evidence proving facts which were in issue at an earlier trial is simply another factor to be put into the balance. The fact that the previous trial ended in an acquittal is a relevant factor in striking this balance but is no more than that. It is not, as would be the result of upholding the rule in Sambasivam, conclusive.


    My Lords,

    I have had the advantage of reading in draft the speeches of my noble and learned friends Lord Hope of Craighead and Lord Hutton. For the reasons they give I agree that the appeal should be allowed. There is no justification for the supposed rule which prevents the prosecution from making an assertion which is inconsistent with the acquittal of the defendant on an earlier and different charge. In the present case it is common ground that the evidence of other complainants is admissible as evidence of similar facts, and accordingly we are not called upon to rule upon the admissibility of such evidence.


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