NOTES OF CASES

DOIhttp://doi.org/10.1111/j.1468-2230.1962.tb02219.x
Published date01 September 1962
Date01 September 1962
NOTES
OF
CASES
REVELATION
AND
RELEVANCE
IT
must be rare for an accused person to raise virtually the same
defence at two d8erent trials for quite separate offences, and rarer
still after the defence has failed at the earlier trial. Yet this was
done by the appellant in
Jonev
v.
D.P.P.’
and against such a back-
ground,
it
is hardly surprising that some fundamental principles of
the law
of
evidence appeared
in
a new light. Jones was first tried
for rape, he raised an alibi,
it
failed and he was convicted. He was
subsequently tried for the murder of a quite different
girl
and again
his explanation took the form of an alibi. When first charged with
the murder he put forward
one
story, but at his trial he abandoned
this and raised, instead, virtually the same alibi as at his earlier
trial for rape.
In
his
evidence in chief at the murder trial,
Jones
explained that he had given
a
false alibi when charged because he
had previously been
in
trouble with the police.
In
cross-examining
the accused, the prosecution asked questions designed to show thc
similarities between the two alibis.
At
first instance, objection was
taken to their admission
as
a
matter of discretion, rather than
to
their admissibility
as
a
matter of law. But in the
Court
of Criminal
Appeal, and in the House of Lords, the point taken was that these
questions were made inadmissible by proviso
(f)
to section
1
of the
Criminal Evidence
Act,
1898,
as tending to show that the accused
had previously been charged, or had committed, or had been con-
victed
of
another offence, or was
of
bad character. Various reasons
were suggested in favour of admissibility and several leading cases
discussed.
The convention of
giving
one reasoned judgment in criminal
appeals made the analysis
of
decisions of the House of Lords rela-
tively easy, but the evasion of harsh rules relatively difficult. Since
Smith’s
case
*
the convention seems to have been abandoned.
Now
analysis is more difacult but the evasion of harsh rules should be
easier. This case illustrates both facets of the new rCgime and
accordingly it
is
hoped that analysis might be helped and space
saved by tabulating some of the points discussed.
1
(19621
2
W.L.R.
676;
[1962] 1
All
E.R.
669.
2
D.P.P.
v.
Smith
[1961]
A.C.
280.
576
SEPT.
1962
NOTES
OF
CASES
577
Admissible because not caught by
Admissible under proviso
(e)
...
Admissible under exception (i) to
Admissible at common law
because relevant
.
.
.
...
Approved a wide view of
Stirland
a
Approved the reasoning in
Chit-
proviso
(1)
...
...
...
proviso
(1)
... ...
...
son4
and
Kennaway5
...
...
Approved
Dunkley@
...
...
Viscount Lord Lord Lord Lord
Simonds Reid Denning Morris Devlin
AAXAX
XXA- D
--
XXX
XXAXA
XXAXA
-
XADA
-
D
A
D X‘
Key
:
A
means acceptance of
a
reason for admissibility, or
approval of a case.
X
means rejection of a reason for admissibility, or dis-
approval
of
a case.
D means that the reason for admissibility, or case,
was
discussed but
no
final decision expressed.
-
means that the reason for admissibility, or case, was not
dealt with.
The questions could not be justified under exception (ii) or
(iii)
to proviso
(f)
as the conditions for their operation were absent.
Nevertheless the four possible reasons indicated in the table were
discussed.
The majority took the view that the questions were
not
excluded
by proviso
(1)
because they did not tend to show anything forbidden
by it to the jury. This argument depended
on
a nanow inter-
pretation of the word
show
in the proviso:
show
must mean
reveal,’ because
it
is only
a
revela-
The crucial concept is that of revelation, and
it
can only
be
understood in its particular context. Here
it
connotes making the
first suggestion to the jury of the existence of an
unspecified
charge,
committal or conviction, or that the accused is of bad character.
Its
negative side is that once such
a
suggestion has been made
no
amount of further detail or multiplicity of examples can amount to
a
revelation.
It
is necessary to add this side for two reasons. First,
as Lord Devlin pointed out,g anything else would merely authorise
tion of something new which could cause such prejudice.”
a
Stirland
v.
D.P.P.
[1944]
A.C.
315.
4
R.
v.
Chitson
[1909] 2
K.B.
945.
R.
v.
Kennaway
[1917]
1
K.B.
25.
0
R.
v.
Dunkley
[1927]
1
K.B.
323.
7
It has not been possible to deal with the
views
expressed
on
the cases
in
this
note.
8
Per
Lord Reid at
p.
592.
9
p.
635.
VOL.
m
21

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