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

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    In Reg. v. Humphrys [1977] 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:

    "Where in a trial on indictment there is a single issue between prosecution and defence and the defendant is acquitted, is evidence tending to show that the defendant was guilty of that offence admissible in a subsequent prosecution of the defendant for perjury committed during the first trial?"

    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 [1964] 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 [1960] 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 [1967] 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 am perfectly satisfied here that what the prosecution seek to do is to secure a retrial of this whole case, and I am equally satisfied that if such retrial were to take place, it would become a complete reproduction of the trial which took place last year at some considerable length at the Stafford Assizes . . . . I am told, and I accept, that the subject matter of the remaining charges, that is, charges 3 to 29, did in fact constitute the whole of the overt acts of the conspiracy upon which the prosecution relied, and there were no additional factors or evidence on which the prosecution relied in order to secure a conviction on the conspiracy charge.

    "Therefore, it does seem to me to be entirely clear that not only have the accused been in substance tried on these other charges, but also any retrial of them would amount to a complete reproduction of the previous trial. I am quite satisfied here that the prosecution do not desire to be oppressive, but I have to look at the matter in the light of the results which would accrue if I were to grant the application of the prosecution . . . in my judgment, it would in fact be bad and oppressive to the accused to allow such a retrial. . . "

    I consider that the same test as that stated by Lord Pearce in Connelly v. Director of Public Prosecutions [1964] 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:

    "(9) where the evidence is substantially identical with the evidence given at the first trial without any addition and the Crown is in substance simply seeking to get behind a verdict of acquittal, the second charge is inadmissible both on the ground that it infringes the rule against double jeopardy and on the ground that it is an abuse of the process of the court whether or not the charge is in form a charge of perjury at the first trial."

Lord Salmon stated, at p. 47:

    "It is almost unheard of for those who have been convicted in spite of their lies to be prosecuted for perjury save in the most exceptional circumstances - and rightly so. A charge of perjury after a full trial in respect of another offence, in which the prosecution has failed to persuade a jury that the accused was lying and that he was guilty, could in some circumstances smack of an attempt by a disappointed prosecution to find what it considered to be a more perspicacious jury or tougher judge. This would in reality be putting the accused in double jeopardy. Although the form of charge would be different from that of the charge upon which he had already been tried and acquitted, the true substance of the charge would be the same. It is of great importance that in such a case, if it arose, the courts should not hesitate to exercise their inherent powers in relation to prosecutions which are oppressive and an abuse of the process of the court."

    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:

    "The first case cited to which I wish to refer is Reg. v. Ollis [1900] 2 Q.B. 758. In that case the accused was faced with charges based on a series of alleged cheque frauds. On the charge relating to the first cheque he was acquitted. But the evidence relating to it was admitted on the hearing of the second and subsequent charges not to show that he was guilty of the first offence but to show that after the first cheque had been dishonoured, and at the time he uttered the second, he knew the state of his account and therefore that the second and subsequent cheques were not valid orders. In other words, there was never a double jeopardy."

    And at p. 37:

    "I would say here that I view the English case of G. (An Infant) v. Coltart [1967] 1 Q.B. 432, and the judgment in it of Salmon L.J., as a case of substantial double jeopardy on exactly the same lines of Kemp v. The King, 83 C.L.R. 341."

Lord Salmon stated, at p. 43:

    "Once a man is acquitted of an offence, the prosecution cannot subsequently challenge that acquittal in another trial upon another charge by seeking to prove that he was in fact guilty of the crime of which he had been acquitted: see Sambasivam v. Public Prosecutor, Federation of Malaya [1950] A.C. 458; Kemp v. The King, 83 C.L.R. 341 and G. (An Infant) v. Coltart [1967] 1 Q.B. 432. This, however, does not mean that evidence may not be called against an accused which is relevant to the prosecution's case against him merely because it may tend to show that the accused was guilty of an offence of which he had been acquitted: Reg. v. Ollis [1900] 2 Q.B. 758."

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 [1900] 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,

    "the fact that . . . a jury had acquitted would neither detract from the weight of the evidence nor in any way affect its admissibility, for the prisoner would not be being tried again for the offence of which he had been acquitted, but for a different offence, in respect of which the evidence given in the former case, or some of it, would be relevant."

    In G. (An Infant) v. Coltart [1967] 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:

    "With respect, however, this attempt to distinguish Reg. v. Ollis is unsound, because it does not accord with the real facts or reasoning of that case. The 'first cheque' to which Salmon L.J. refers, and in respect of which Reg. v. Ollis had previously been acquitted, was not the first of the series, but the third, and was passed several days after the first two. The prosecution's evidence concerning this 'first cheque' was therefore relevant only on the assumption that it had, like the others, been passed fraudulently. The attitude of the majority of the judges in Reg. v. Ollis was that it did not matter whether the previous acquittal was contradicted or not, as long as the defendant was not put in double jeopardy thereby, and it is really impossible to reconcile Reg. v. Ollis with Sambasivam or with G. (An Infant) v. Coltart."

And at p. 761, para. 22-018 it states:

    "In G. (An Infant) v. Coltart . . . . the Divisional Court recognised that the appellant was clearly guilty but considered that the Sambasivam rule obliged them to quash her conviction. One doubtful acquittal thus necessitated a second that was clearly wrong."

    In an article entitled "Contradicting Previous Acquittals" [1991] Crim.L.R. 510, 517 Professor Hirst states that in Reg. v. Humphrys [1977] A.C. 1 the Sambasivam rule was approved:

    "on the ground that it was 'concerned with the binding nature of a previous verdict of acquittal rather than with the determination of any particular issue at the previous trial.' With respect, however, this approval is irreconcilable with the cogent reasons given for the rejection of issue estoppel. The Sambasivam rule can and does produce the very kind of 'artificial and unfair' results to which Lord Salmon referred. G. (An Infant) v. Coltart provides an example; but a hypothetical example illustrates the problem more clearly. Imagine that D has been charged with a murder, and acquitted in controversial circumstances; imagine then that some months later a similar offence is committed, and that it is clear for various reasons that whoever committed the first offence also committed the second. Moreover, D seems to be the only person who could have been involved in both incidents. The Sambasivam rule would preclude use of that crucial similar fact evidence."

    And at pp. 520-521 he states:

    "(iv) The only satisfactory solution to the difficulties caused by the Sambasivam rule would appear to be the total abolition of that rule. As was the case with issue estoppel, attempts to apply it seem to result all too often in artificial and unsatisfactory results, and considerable difficulties may be experienced in seeking to isolate and identify the basis on which the accused was previously acquitted. If this is unclear, it may be equally unclear whether evidence at a later trial is inconsistent with the acquittal."

    In an article in [1997] 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:

    "If evidence is probative of guilt it must be admitted, and any negative effect as far as the jury perception of the defendant is concerned simply has to be suffered. Hence it should be immaterial whether or not the defendant was ever charged, convicted or acquitted in relation to previous misconduct; he does not suffer double jeopardy where it is admitted as probative in relation to a later offence. But the Consultation Paper seems to suggest that the prosecution may not lead evidence in chief if it concerns allegedly criminal conduct in relation to which the defendant was ultimately acquitted. This is a very doubtful proposition of law; if the Commission is of the view that the prosecution may not avail themselves of such evidence, then perhaps it should propose a reform to deal with the problem. For example, if in Smith [Rex v. Smith (1915) 11 Cr.app.R. 229] the defendant had been accused of the murder of his second wife, who was found dead in her bath, he might well have been acquitted for want of convincing evidence. But when his third wife was discovered dead in her bath, bringing the total of 'Brides in the Bath' to three, it would be absurd if the prosecution could not adduce evidence of both former incidents, in order to prove the murder of the third wife, notwithstanding a previous acquittal in relation to one of them."

    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:

    "there is one feature of the present case which must now be mentioned and which, though it bears directly on the weight to be accorded to the statement under discussion, involves an important principle of the criminal law to such an extent that, in the opinion of the Board, the conviction appealed from ought not to be allowed to stand.

    "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. Here, the appellant having been acquitted at the first trial on the charge of having ammunition in his possession, the prosecution was bound to accept the correctness of that verdict and was precluded from taking any step to challenge it at the second trial. And the appellant was no less entitled to rely on his acquittal in so far as it might be relevant in his defence. That it was not conclusive of his innocence on the firearm charge is plain, but it undoubtedly reduced in some degree the weight of the case against him, for at the first trial the facts proved in support of one charge were clearly relevant to the other having regard to the circumstances in which the ammunition and revolver were found and the fact that they fitted each other.

    "These considerations do not appear to have received the attention they deserved at the second trial. . . .

    "More important than these matters, however, was the reliance of the prosecution on the statement of 13 September [1948], which, if accepted as the truth, went to prove the appellant guilty of the charge of which he had been acquitted as clearly as it proved him guilty of the offence the subject of the second trial. This circumstance might well have been made a ground for excluding the statement in its entirety, for it could not have been severed satisfactorily. But the point was not taken and the statement was left to the assessors, with ample warning, it is true, of the dangers of acting on a retracted confession, but without any intimation that the prosecution could not assert, or ask the court to accept, a substantial and important part of what it said.

    "The fact appears to be—and the Board must judge of this from the record and the submissions of counsel who argued the appeal—that the second trial ended without anything having been said or done to inform the assessors that the appellant had been found not guilty of being in possession of the ammunition and was to be taken as entirely innocent of that offence. In fairness to the appellant that should have been made clear when the statement had been put in evidence, if not before. Their Lordships . . . cannot avoid the conclusion that the effect of the omission was to render the trial unsatisfactory in a material respect."

    The decision of the Board in Sambasivam was approved in Connelly v. Director of Public Prosecutions [1964] 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 [1950] A.C. 458, 479 beginning with the words "The effect of a verdict of acquittal," stated, at p. 36:

    "While I endorse every word of the above passage in the context of the particular case leading up to the conclusion I have outlined I cannot give it the universal applicability which alone would give it relevance here. It would have been clearly wrong in the circumstances of that case for the Crown to argue either (1) that the verdict of acquittal on the ammunition charge was wrong or (2) that it was open to the court to convict on the firearms charge on the basis of the alleged confession unless it clearly understood that the accused was in fact to be treated as innocent on the ammunition charge which was so closely linked to the firearm charge to which the alleged statement related. On the contrary, the inference was inescapable that either he also did not make the statement at all or, if he did, was to be taken to have been confessing also to something of which he must be treated as wholly innocent. Either the Crown was seeking to go behind the verdict of acquittal or it was introducing matter which was prejudicial and in part irrelevant or inaccurate without explaining the extent to which the irrelevant part operated to diminish the weight to be attached to the relevant part."

Lord Edmund-Davies said, at p. 50:

    "I have with the utmost respect to say that I still have some difficulty in understanding the decision. . . . I respectfully adopt the comment of Professor Cross (Evidence, 4th ed. (1974), p. 299), made with reference both to Sambasivam v. Public Prosecutor, Federation of Malaya and to G. (An Infant) v. Coltart [1967] 1 Q.B. 432 that:

    'What is alleged to have been wrongly challenged in the second case is the innocence of the accused in the first, not the decision of a specified issue.'

    "For my part, I regard Sambasivam v. Public Prosecutor, Federation of Malaya [1950] A.C. 458 as turning on the view that the court should have been told that the accused had already been acquitted of carrying the ammunition and that such acquittal must be treated as binding when they considered the other charge of carrying a firearm."

    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 [1964] 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.

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