R v Z

I have had the advantage of reading in draft the speech which has been prepared by my noble and learned friend Lord Hutton. For the reasons which he has given I too would allow the appeal.

It is accepted by the defendant that the evidence of the three complainants in respect of whose complaints he was acquitted is relevant to the question whether he is guilty of the offence of rape with which he has been charged in this case. This is because the similar fact evidence of these complainants, if accepted by the jury, has a direct bearing on the allegation which the Crown makes in this case that the defendant's intercourse with C was without consent. Furthermore the issue in the present case is not whether the defendant is guilty of having raped the three other complainants. He is not being put on trial again for those offences. The only issue is whether he is guilty of this fresh allegation of rape. The guiding principle is that prima facie all evidence which is relevant to the question whether the accused is guilty or innocent of the offence charged is admissible. It would seem to follow that the evidence of these three complainants should be held to be admissible in this case, subject to the discretion of the trial judge to exclude unfair evidence under section 78 of the Police and Criminal Evidence Act 1984.

The objection to the admissibility of this evidence is based on Lord MacDermott's statement in Sambasivam v. Public Prosecutor, Federation of Malaya [1950] A.C. 458, 479 that the effect of a verdict of acquittal pronounced by a competent court after a lawful trial is not restricted to the fact that the person acquitted cannot be tried again for the same offence. He said that it is binding and conclusive in all subsequent proceedings between the parties to the adjudication. But I agree with my noble and learned friend Lord Hutton that the observation which is contained in the second of these two statements is in need of qualification in order to confine its application to its proper context. The principle which underlies both statements is that of double jeopardy. It is obvious that this principle is infringed if the accused is put on trial again for the offence of which he has been acquitted. It is also infringed if any other steps are taken by the prosecutor which may result in the punishment of the accused on some other ground for the same offence. But it is not infringed if what the prosecutor seeks to do is to lead evidence which was led at the previous trial, not for the purpose of punishing the accused in any way for the offence of which he has been acquitted, but in order to prove that the defendant is guilty of a subsequent offence which was not before the court in the previous trial.

The evidence of the three complainants was, of course, relevant to the question whether he was guilty of the charges of rape of which he was acquitted. But that is not the question which is before the court in this case. Nor is there any question now of inflicting any kind of punishment on the defendant, whether directly or indirectly, for those alleged offences. I would hold therefore that the double jeopardy rule which Lord MacDermott was seeking to explain in Sambasivan's case would not be infringed by the admission of the evidence of these three complainants with a view to showing that the defendant was guilty of the crime of rape when he had sexual intercourse on a different occasion with someone else.

I have had the benefit of reading in draft the speeches of my noble and learned friends Lord Hope of Craighead and Lord Hutton. For the reasons which they give I would allow the appeal and answer the certified question in the terms set out in the speech of my noble and learned friend Lord Hutton.

The issue which arises on this appeal is whether relevant evidence which the Crown wishes to adduce as part of its proof to establish the guilt of the defendant for an offence is inadmissible because it shows that the defendant had, in fact, been guilty of an earlier and different offence of which he had been acquitted.

The defendant is charged with the offence of rape of a young woman, C, in 1998. The defendant does not dispute that he had sexual intercourse with C but his defence is that she consented or, in the alternative, that he believed she consented. The defendant has faced four previous allegations of rape of young women which have gone to separate trials. In three of the trials the respective complainants were M, O and P, and in these trials the defendant was acquitted. In the fourth trial, in which the complainant was N, he was convicted. In each of the four trials the defendant did not dispute that sexual intercourse had taken place between him and the respective complainants. The Crown wishes to call the four complainants in the previous trials to give evidence of the defendant's conduct towards them to negate the defence of consent or belief as to consent in respect of the charge of rape against C.

The Crown submits that the evidence of the four complainants is admissible under the similar facts rule and it is not in dispute that there are a considerable number of similarities in the conduct of the defendant alleged by C and the other four complainants. The admissibility of this evidence was raised in the course of a preparatory hearing in the Crown Court held pursuant to section 29 of the Criminal Procedure and Investigations Act 1996. In a careful judgment the judge ruled that the evidence of the four complainants came within the ambit of the similar facts rule and he cited the judgment of Glidewell L.J. in Reg.. v. Wilmot (1989) 89 Cr. App.R. 341, 345:

"It has been suggested sometimes that such evidence can never be admissible in relation to the defence of consent which, as I have made clear, was the main issue which the jury in this case largely had to decide. But that is not right. Such evidence may be germane to a defence of consent—it will not always be by any means—but there are circumstances in which, where it is proved or admitted that a man has had sexual intercourse with a number of young women, the question whether it is proved that one of them did not consent may in part be answered by proving that another of the women did not consent if the circumstances bear a striking resemblance."

However the judge ruled inadmissible the evidence of the three complainants in respect of whose complaints the defendant had been acquitted by reason of the statement of Lord MacDermott in delivering the judgment of the Privy Council in Sambasivam v. Public Prosecutor, Federation of Malaya, [1950] A.C. 458, 479:

"The effect of a verdict of acquittal pronounced by a competent court on a lawful charge and after a lawful trial is not completely stated by saying that the person acquitted cannot be tried again for the same offence. To that it must be added that the verdict is binding and conclusive in all subsequent proceedings between the parties to the adjudication. The maxim "Res judicata pro veritate accipitur" is no less applicable to criminal than to civil proceedings."

As regards the complainant in respect of whose complaint the defendant had been convicted, the judge ruled that her evidence standing alone could not establish a sufficiently cogent picture of similar facts to be admitted.

On appeal by the Crown with leave under section 35 (1) of the Act of 1996 to the Court of Appeal the defendant did not challenge the judge's ruling that the evidence of the four previous complainants would have been admissible as similar facts evidence if it had not been rendered inadmissible by the principle stated by Lord MacDermott in Sambasivam, and the Crown did not challenge the ruling that the evidence of the fourth complainant, N, standing alone was of insufficient cogency to be admitted as evidence of similar facts. Accordingly the sole issue for determination before the Court of Appeal was whether the fact that the defendant had been acquitted in respect of three of the complaints made against him rendered the evidence of those three complainants inadmissible.

In a full and learned judgment delivered by Mance L.J. the Court of Appeal reviewed the authorities and concluded, with regret, that it was bound by the principle stated in Sambasivam to hold that the evidence of the three complainants was inadmissible and to dismiss the Crown's appeal. Mance L.J. stated:

"50. Reviewing the authorities to which we have referred, we consider that we are bound to conclude that the wider aspect of the principle in Sambasivam exists, and has been both recognised and applied, in English law on a number of occasions. In other words, the significance of a prior acquittal is not merely to preclude a second prosecution for the same offence…on any view, the principle extends to preclude the Crown in a subsequent prosecution from asserting, or adducing evidence to show, that the defendant was actually guilty on the charge in respect of which he was acquitted. That this is also the effect of an acquittal when the Crown's purpose is to use the evidence of the prior incident(s) to which the acquittal(s) related as similar fact evidence is indicated by the treatment in Reg. v. Humphrys [1977] A.C. 1 of Reg. v. Ollis [1900] 2 Q.B. 758 and by the Australian case of Kemp v. The King (1951) 83 C.L.R. 341 referred to with approval in Reg. v. Humphrys….

"52. The present case is, as we have indicated, one where the...