|Judgments - Regina v. Z (On Appeal From The Court of Appeal (Criminal Division))
In Reg. v. Humphrys  A.C. 1 the defendant had originally been charged with riding a motor cycle while disqualified. The principal prosecution witness was Police Constable Weight who gave evidence that on 18 July 1972 he stopped the defendant when he was riding a motor cycle. The defendant did not dispute that on that date he was disqualified from riding. It was also not disputed that the police constable had on that date and at the place alleged stopped someone riding a motor cycle, but the defence was that the police constable was mistaken in identifying the rider as being the defendant. The defendant gave evidence on oath not merely that he had not ridden a motor cycle on the date and at the place in question, but that he had not ridden or driven on a road at all during the year 1972. The jury acquitted the defendant. As the defendant did not dispute that he was disqualified from riding on the relevant date the jury's verdict of "not guilty" could only have been due to their not being satisfied by the evidence of P.C. Weight that the defendant was the rider of the motor cycle stopped by him.
The defendant was subsequently charged with having committed perjury in saying on oath that he had not ridden or driven on a road at all during 1972. On the trial of this charge the prosecution called three neighbours of the defendant who testified to seeing a motor cycle at the defendant's home, and the defendant riding it and maintaining it, though only one claimed to have seen him riding it on the road. When the prosecution sought to call P.C. Weight to give evidence that the defendant was the rider of the motor cycle whom he had stopped on 18 July 1972 counsel for the defendant objected on the ground that his evidence was inadmissible. Shaw J. rejected this submission on the ground that in the trial before him the police constable's evidence was not directed to establishing the defendant's guilt on the charge of driving while disqualified but simply to the question whether he was riding a motor cycle on 18 July 1972. P.C. Weight was then called and gave the same evidence about the same incident on 18 July 1972 as he had given at the previous trial and with the same identification of the defendant. This carried the necessary implication that the defendant had been lying at the previous trial when he said on oath that he had never driven at all during 1972. The defendant was convicted of perjury and appealed to the Court of Appeal.
The appeal was allowed on the ground that the doctrine of issue estoppel applied and the Court of Appeal held that as the question, was the defendant the rider of the motor cycle on 18 July 1972, had been determined by the jury at the first trial in the defendant's favour, P.C. Weight could not testify in the second trial that the respondent was the rider on that date. The prosecution was given leave to appeal to this House and the point of law was certified to be, at p. 4:
This House held, allowing the appeal and restoring the conviction of perjury, that the doctrine of issue estoppel had no place in English criminal law, notwithstanding that the importation of the doctrine into criminal law had received some approval in obiter dicta in Connelly v. Director of Public Prosecutions  A.C. 1254. In his judgment, at pp. 33B, 35B-E and 38F-H, Lord Hailsham of St. Marylebone referred to the Australian authorities of Rex v. Wilkes (1948) 77 C.L.R. 511, Kemp v. The King (1951) 83 C.L.R. 341, Mraz v. The Queen (No. 2) (1956) 96 C.L.R. 62, and Brown v. Robinson  S.R.(N.S.W.) 297 where, in relation to criminal cases, the term "issue estoppel" was employed and said that in these cases the term was used as a sort of intellectual shorthand to describe cases of double jeopardy in which the formal pleas of autrefois acquit and convict were not available to the accused. But although rejecting issue estoppel as being applicable to criminal proceedings the House recognised that in some circumstances a defendant in criminal proceedings is entitled to be protected against double jeopardy by the court exercising its inherent power to decline to hear proceedings on the ground that they are oppressive and an abuse of its process. In my opinion the speeches in the House recognised that as a general rule the circumstances in which a prosecution should be stopped by the court are where on the facts the first offence of which the defendant had been convicted or acquitted was founded on the same incident as that on which the alleged second offence is founded. This appears most clearly in the speech of Lord Edmund-Davies. He cited, at p. 54, the passage from the speech of Lord Pearce in Connelly v. Director of Public Prosecutions, at p. 1364, which I have set out above, and he also cited with approval, at pp. 54-55, the judgment of Barry J. in Reg. v. Riebold  1 W.L.R. 674. In that case the two defendants were charged in an indictment containing two counts of conspiracy and 27 counts of larceny and obtaining by false pretences. The latter counts related to overt acts in support of the conspiracy allegation. The prosecution proceeded on a conspiracy count alone and both defendants were convicted, and the remaining counts were ordered to remain on the file and not to be proceeded with unless the court granted leave. Both defendants appealed and their appeals were successful. The prosecution then sought leave to proceed on the remaining 27 counts of the original indictment and Barry J. refused to grant leave. He said, at p. 678:
I consider that the same test as that stated by Lord Pearce in Connelly v. Director of Public Prosecutions  A.C. 1254, namely that a second prosecution cannot as a general rule be brought where it is founded on substantially the same facts as the earlier prosecution which led to a conviction or an acquittal, was implicit in certain passages in the speeches of Lord Hailsham and Lord Salmon in Reg. v. Humphrys. Lord Hailsham, in his summary of his conclusions, stated, at p. 41:
Lord Salmon stated, at p. 47:
There are passages in the speeches in Reg. v. Humphrys which support the distinction which the Court of Appeal drew in G. (An Infant) v. Coltart between that case and Reg. v. Ollis. Lord Hailsham said, at p. 35:
Lord Salmon stated, at p. 43:
See also per Lord Edmund-Davies, at p. 50E-F.
My Lords, I consider, with great respect, that the distinction drawn between the prosecution adducing evidence on a second trial to seek to prove that the defendant was, in fact, guilty of an offence of which he had been earlier acquitted and the prosecution adducing evidence on a second trial to seek to prove that the defendant is guilty of the second offence charged in that trial even though the evidence may tend to show that he was, in fact, guilty of an earlier offence of which he had been acquitted is a difficult one to maintain. The reality is that when the Crown adduces evidence in a criminal trial for a second offence it does so to prove the guilt of the defendant in respect of that offence. In order to prove the guilt in respect of the second offence it may wish to call evidence which, in fact, shows or tends to show that the defendant was guilty of an earlier offence, but the evidence is adduced not for the purpose of showing that the defendant was guilty of the first offence but for the purpose of proving that the defendant is guilty of the second offence. Moreover I think that a distinction cannot realistically be drawn between evidence relating to a specific issue (such as intention or knowledge) and evidence which shows that, in fact, the defendant was guilty of the offence of which he had been acquitted because in some trials the proof of a single disputed issue will establish the guilt of the defendant. I also think that it is difficult to draw a distinction between evidence which shows that the defendant was, in fact, guilty of an earlier offence of which he has been acquitted and evidence which tends to show that he was, in fact, guilty of that offence.
Although in Reg. v. Ollis  2 Q.B. 78 Lord Russell of Killowen C.J. referred, at p. 764, to evidence which "tended to shew that the accused was, in fact, guilty of the former charge," I do not consider that he intended to distinguish between such evidence and evidence which showed that the accused was, in fact, guilty of the former charge. I read the judgments of the majority in that case as stating that, provided that the accused is not placed in double jeopardy, evidence which is relevant is not inadmissible because it shows that he was, in fact, guilty of the earlier offence of which he had been acquitted: as Channell J. said, at p. 782,
In G. (An Infant) v. Coltart  1 Q.B. 432 in order to deal with the issue of intent permanently to deprive, the prosecution adduced the evidence that the defendant had kept Mrs. Doig's property in her room although she knew Mrs. Doig was leaving for South Africa in order to show that she did not intend to return Mrs. Doig's property and therefore did not intend to return Mr. Tod's property. It was the purpose of the prosecution to prove that she had stolen Mr. Tod's property, and to support its case on that charge the prosecution wished to adduce the evidence relating to Mrs Doig's property and what the defendant knew about Mrs Doig's imminent departure. That evidence was relevant to the second charge and in my opinion the consideration that the evidence would, in fact, show that the defendant had stolen Mrs. Doig's property, an offence of which she had been acquitted, should not have prevented the prosecution from adducing that evidence.
There has been criticism by textbook writers and other learned commentators of the Sambasivam rule and of the distinction which is sought to be drawn between Reg. v. Ollis and G. (An Infant) v. Coltart. Andrews and Hirst on Criminal Evidence 3rd ed. p. 757, para. 22-013 refers to the passage in the judgment of Salmon L.J. in G. (An Infant) v. Coltart which I have cited earlier and states:
And at p. 761, para. 22-018 it states:
In an article entitled "Contradicting Previous Acquittals"  Crim.L.R. 510, 517 Professor Hirst states that in Reg. v. Humphrys  A.C. 1 the Sambasivam rule was approved:
In an article in  Crim.L.R. 93 on the Law Commission's Consultation Paper No. 141 ("Evidence in Criminal Proceedings: Previous Misconduct of a Defendant" (1996)) Professor McEwan states, at p. 94:
I turn now to consider the judgment of the Board in Sambasivam in the light of the authorities to which I have referred. In that case, which was an appeal from the Court of Appeal of the Federation of Malaya, the appellant had been involved in a fight with three Malays who alleged that he had drawn and pointed a revolver at one of them before he had been wounded and disarmed. One of the Malays said in evidence that he had examined the revolver which the appellant had drawn and that it was loaded with six rounds and he found four more rounds which the appellant was carrying in a bag.
Two charges were brought against the appellant. The first charge was that he was carrying a .38 revolver which he was not duly licensed to carry. The second charge was that of having possession of ten rounds of .38 ammunition without lawful authority therefor. I observe that it is clear that six of the ten rounds were actually loaded in the revolver which the appellant was charged with carrying. At a first trial conducted by a judge and two assessors the appellant was tried on both charges. On the second charge, that relating to the possession of ammunition, he was acquitted. On the first charge, that relating to the carrying of the revolver, the assessors also found the appellant to be not guilty, but the judge disagreed with that finding and under the provisions of the Criminal Procedure Code ordered a new trial on the first charge. At the new trial before a different judge and two different assessors a statement which purported to have been made by the appellant but which he denied making and which had not been put in evidence on the first trial was relied on by the prosecution. In the statement the appellant said that he was carrying a fully loaded revolver and extra rounds of ammunition. At the conclusion of the new trial the appellant was found guilty, and the Court of Appeal dismissed his appeal.
In the judgment of the Board Lord MacDermott recited the facts and then stated, at pp. 478-480, the opinion of the Board that the appeal should be allowed in terms which it is desirable to set out in full:
The decision of the Board in Sambasivam was approved in Connelly v. Director of Public Prosecutions  A.C. 1254 but the members of this House expressed differing views as to the grounds for the decision: see per Lord Morris of Borth-y-Gest, at pp. 1321 and 1329, Lord Hodson, at pp. 1331 and 1334, Lord Devlin, at p. 1341 and Lord Pearce, at p. 1364. The decision was also approved in Humphreys but again somewhat differing observations were made in relation to it. Viscount Dilhorne referred to it, at p. 17 and Lord Salmon, at p. 44. Lord Hailsham, referring to the three sentences in Lord MacDermott's judgment  A.C. 458, 479 beginning with the words "The effect of a verdict of acquittal," stated, at p. 36:
Lord Edmund-Davies said, at p. 50:
My Lords, I consider, with great respect, that in Sambasivam it was right to set aside the conviction, and that the proper ground for doing so was for the reason given by Lord Pearce in Connelly v Director of Public Prosecutions  A.C. 1264, 1362, 1364, namely, that a man should not be prosecuted a second time where the two offences were in fact founded on one and the same incident and that a man ought not to be tried for a second offence which was manifestly inconsistent on the facts with a previous acquittal. The carrying of the revolver and the carrying of the ammunition constituted one and the same incident, and having been acquitted of having possession of the ammunition the allegation of carrying the revolver (in which some of the ammunition was loaded) was manifestly inconsistent with the previous acquittal. But I consider that provided that a defendant is not placed in double jeopardy in the way described by Lord Pearce, 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. Therefore I think that in the relevant passage of Lord MacDermott's judgment, at p. 479, the second sentence commencing "To that it must be added" requires the qualification which I have ventured to state.