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57 IN ADDITION TO THE SPECIAL PLEA of previous acquittal, the law has formulated a number of related doctrines to protect a verdict of acquittal from subsequent attack. They are: issue estoppel, the rule in Sambasivam, the rule against collateral attack, and the court’s duty to prevent unfairness to the defendant.23 In Moore’s case, these doctrines were relevant to the admissibility, in his subsequent trial for conspiracy to pervert the course of justice, of evidence adduced in the trial that ended with his acquittal for murder.
58 In modern times this doctrine has become well established in civil law. Briefly, the rule is that where in one proceeding a court decides a particular matter of law or fact which is an essential element of the cause of action or defence, that decision may not be contradicted when the same matter is an essential element in later proceedings between the same parties. Such an estoppel is ‘mutual’, meaning that it may be relied on by either party (plaintiff or defendant). But it will not apply if there is important fresh evidence on the matter, and it may not apply if there are other ‘special circumstances’.24
59 Although issue estoppel has been applied to the criminal law in some jurisdictions (notably Australia and Canada), in England and New Zealand the courts have confined it to the civil law. There have been two main reasons for this. First, it has been accepted that it would be wrong for the Crown to be able to rely on it in a prosecution, so that the principle of mutuality would have to be abandoned. Second, because juries are not required or permitted to give reasons for their verdicts, it will often be impossible to identify with any degree of confidence precisely what issues were determined.25 But in those jurisdictions where issue estoppel has not been applied in criminal cases, the Sambasivam, collateral attack and fairness rules operate as an extended principle of res judicata.
60 This is a rule, generally attributed to Sambasivam v Public Prosecutor, Federation of Malaya,26 to the effect that the Crown is precluded from advancing at a later trial propositions inconsistent with innocence on any count on which there has been a prior acquittal. There is high New Zealand authority, following Sambasivam, that the second trial must proceed on the premise that the accused was innocent of the charge on which he or she was previously acquitted.27 The rule has been challenged by the Law Commission for England and Wales, criticised by the English Court of Appeal and recently overturned by the House of Lords.28
61 More recently the courts have developed a general principle of public policy that prevents a party in later proceedings from making a collateral attack on a subsisting decision of a Court of competent jurisdiction.
62 This principle was enunciated in the civil case of Hunter v Chief Constable of West Midlands Police.29 Although its application has been seen as uncertain in England,30 in New Zealand the principle has been applied in criminal cases to prevent collateral attacks on decisions in earlier criminal cases.31
63 When the decision under consideration is a verdict of acquittal the effect of the principle against collateral attack appears to be the same as the rule in Sambasivam (paragraph 60 above). On New Zealand authority, either or both of these principles may sometimes lead to the exclusion of evidence which is necessarily inconsistent with a previous acquittal.32
64 In Hunter it was recognised that the rule against collateral attack would not apply if there was relevant and important new evidence not available at the earlier trial such as entirely changes the aspect of the case.33
65 In order to protect defendants from unfairness, the courts have recognised a general rule that all charges arising out of one incident should normally be dealt with in a single trial. It was said by Lord Devlin in Connelly v DPP, that:
the judges of the High Court have in their inherent jurisdiction, both in civil and in criminal matters, power (subject of course to any statutory rules) to make and enforce rules of practice in order to ensure that the court’s process is used fairly and conveniently by both sides. I consider it to be within this power for the court to declare that the prosecution must as a general rule join in the same indictment charges that “are founded on the same facts, or form or are a part of a series of offences of the same or a similar character” ... and power to enforce such a direction (as indeed is already done in the civil process) by staying a second indictment if it is satisfied that its subject-matter ought to have been included in the first ...34
66 In R v Davis it was stated that the Court has a “special discretion” in criminal cases to prevent unfairness to the accused.35 This, rather than the narrower principle of Sambasivam, may sometimes be relevant when there have been multiple charges and proceedings. An example may be R v Arbuckle.36 There the accused had been tried for various offences of dishonesty and had been acquitted of some and convicted of others. He was now to be tried for various other similar offences. The Court of Appeal upheld a ruling that the Crown was not to adduce evidence of the offences the subject of the first trial. The Court accepted that no rule of law required this result, but concluded that it was justified in the interest of fairness, in particular because to allow the evidence would substantially thwart the purpose of a previous order for severance, against which the Crown had not appealed.
67 For the purpose of our discussion, the cases can be grouped into three broad categories:
1 Where a defendant was tried for two offences arising out of the same incident, and was acquitted of one offence but is retried on the other.
2 Where evidence relating to charges on which the defendant was acquitted is adduced as similar fact evidence in a later trial of a different charge.
3 Where a defendant is charged with an offence against the administration of justice alleged to have been committed in connection with a trial that ended in an acquittal.
The cases themselves do not distinguish among these categories. We have used them as a device to bring a sharper focus to our analysis.
68 Sambasivam was a case in this category. The accused had been prosecuted for two capital offences:
1 carrying a firearm; and
2 possession of 10 rounds of ammunition, six of which were in the firearm.
He was acquitted of (2) but there was a disagreement as to (1), and a retrial of that charge was ordered. On retrial of Sambasivam, the prosecution put in evidence a statement that the accused denied making and that had not been produced in the first trial, in which the accused allegedly confessed to both charges. The accused was convicted of the firearm offence. The Privy Council quashed this conviction because it held that the acquittal meant the accused must be taken to be innocent of the ammunition charge, and the assessors had not been told this, although it was something clearly tending to undermine the weight of the alleged confession. Had the assessors known that only a part of the statement could be relied on, they might have rejected it altogether. And had they done that, they might not have accepted the testimony of the prosecution witnesses in preference to that of Sambasivan.
69 The result of Sambasivam was probably correct, because the appellant was facing the death penalty, and the statement was taken in circumstances that the Privy Council said “were such as to provoke comment and even suspicion”37 and which would in all probability have seen it thrown out in a present-day New Zealand court.38 The appellant was in hospital a few hours after having been gravely wounded and left lying on the road by people who thought he was about to die.
70 Sambasivam may be an example of hard cases making bad law, because the Privy Council’s reasoning would have been valid only if the defendant had been acquitted despite the confession. But the court that acquitted Sambasivam of the ammunition charge was not aware of the confession, and there was nothing to suggest what the verdict would have been had the confession been produced. While a confession may cast doubt on an acquittal entered in ignorance of the confession, it does not seem logically feasible for an acquittal to cast doubt on a confession of which the acquitting court was unaware. Yet this was the basis for Lord MacDermott’s resounding pronouncement that has bound the courts for over half a century:
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.39
71 Application of the rule in Sambasivam has led to the courts making distinctions without a difference. In R v Roberts the appellant was charged with rape and threatening to kill arising from the same episode.40 He was acquitted of the charge of threatening to kill the complainant; the jury disagreed on the count of rape. The Court of Appeal allowed on the retrial of the rape count evidence of the use of a knife said to have been used to secure submission, but held that the accused must not be put in jeopardy of any finding that he made a threat to kill the complainant intended to be taken seriously.
72 No doubt such result was compelled by Davis. But in the absence of such authority it might be thought that the threat to kill was as much a part of the means used to overcome resistance to the rape as the use of the knife to which it referred.
73 In both Sambasivam and Roberts, the Crown had, as required by Connelly, included in the one indictment charges arising from the same event. The retrial came about because of jury disagreement, and not because the Crown was seeking to relitigate an acquittal. Because it was not a case of having to protect the defendant against double jeopardy, the only reason for excluding the disputed evidence was if issue estoppel applied in criminal cases, and both English and New Zealand authorities are quite categorical that it does not.
74 Here again, the rule in Sambasivam has led to results that some would regard as undesirable. In R v Davis:
The accused had been tried jointly with two other men on a charge of importing cannabis on 8 January 1982. At that trial he was found not guilty. Subsequently he was charged with importing cannabis into New Zealand on or about 19 December 1981. The method used for the importations on both 19 December and 8 January had an unusual and distinctive hallmark. The accused appealed against a pre-trial ruling that certain evidence relating to the importation on 8 January was admissible at his pending trial.41
75 The Court of Appeal held, following Sambasivam, that the jury would have to be told that they must accept that Davis was entirely innocent of importing the cannabis in January 1982. If the evidence relating to the January importation was admitted:
The jury would have to be invited to approach the matter on the theory that cannabis was brought in by the same method on both occasions but that Davis was not a party on the second occasion.
It would be expecting too much of any reasonable jury to instruct them to see the evidence in blinkers in that way. And if they did manage to do so, it would not add much to the Crown’s case that Davis was involved in the first importation. But what is much more likely is that the prejudicial effect of the challenged evidence would overwhelm its probative value.42
Although of the view that “the challenged evidence was of real and legitimate probative value on the charge of the December importation”43 the Court excluded it “as a matter of fairness and respect for the conclusiveness of the prior acquittal”.44
76 The accused was not at risk of double jeopardy, since the Crown was not seeking to overturn the acquittal. Neither was the Crown seeking a second opportunity to secure a conviction by separating the trial of charges arising out of the same incident, contrary to Connolly. Admission of the January evidence to prove the December importation was only unfair because the accused had to be taken to be innocent of the January importation. Aside from Sambasivam, the only reason the defendant must be taken to be innocent of the January importation is the doctrine of issue estoppel, which the Court in Davis said did not apply in criminal proceedings in New Zealand.
77 The courts have used dubious reasoning to get round the rule in Sambasivam. In R v Wilson,45 the appellant had been acquitted of a charge of rape in 1978 after it had been alleged that he had drugged and raped a woman D. E had given evidence against the appellant at the rape trial. The appellant was later charged with stupefying a number of other women and E was allowed to give the same evidence at the subsequent trial. The appellant appealed against the admission of E’s evidence. In upholding the trial judge, the Court of Appeal said:
Here, the matter had to be approached on the basis that the appellant did not rape D; but that did not preclude a finding, if the jury accepted the evidence, that [the appellant] administered drugs to the woman intending to facilitate intercourse with her. In 1978 the appellant had not been charged with stupefying.46
78 The Court said the acquittal need not be seen as consistent only with rejection of the evidence of stupefying. But E’s evidence at the rape trial was that the appellant had told her that if D did not agree to have intercourse with him he would put something in D’s drink, and that later when the appellant “apparently was having sex with D, she was ‘out cold’ and did not wake up at any stage”.47 The Court acknowledged that E’s evidence “was well capable of supporting the inference that the appellant had administered a drug to D to facilitate his being able to have intercourse with her”.48 It is hard to see what other relevance E’s evidence had in the case, and how acquittal on the charge of rape did not necessarily imply rejection of her evidence.
79 R v Ollis demonstrates how a court untrammelled by Sambasivam was able to deal with the issue.49 In that case, the defendant gave Ramsey a cheque on 5 July 1899 in exchange for cash. The cheque was dishonoured and the defendant was charged with obtaining by false pretences. The defendant was acquitted. The next day he was charged on another indictment alleging three other acts of obtaining money by false pretences by issuing three cheques to Rawlings and Morris on 24 June, 26 June and 6 July respectively. At the second trial, the prosecution was allowed to call Ramsey to repeat the evidence he had given at the first trial, with the point as to its admissibility reserved. The defendant was convicted on the second indictment. On appeal, the majority held that Ramsey’s evidence was admissible to show the defendant’s guilty knowledge of the state of his bank account when he issued the cheques to Rawlings and Morris. The majority and the minority differed on the question of relevance of the disputed evidence. Lord Russell of Killowen CJ of the majority said:
The evidence was not less admissible because it tended to shew that the accused was, in fact, guilty of the former charge. The point is, was it relevant in support of the three subsequent charges? In the opinion of the majority of the Court, and in my own opinion, it was relevant as shewing a course of conduct on the part of the accused, and a belief on his part that the cheques would not be met. The accused gave cheques on June 24 and 26 which were dishonoured, and, finally, a further dishonoured cheque on July 6, all three cheques having been drawn on the same bank as the first dishonoured cheque was drawn upon. It is impossible to say that all these facts were not relevant as shewing an intention to defraud. The fact of the dishonour of the first cheque might, and perhaps ought to, have been capable of explanation, but it is impossible to say that it was not relevant.50 [emphasis added]
80 The disputed evidence was held to be relevant because the majority took a global view of the passing of the four dishonoured cheques, unconstrained by any presumption that the defendant was innocent of the July 5 charge.
81 This treatment can be compared with that of the minority. Bruce J, with whom the other dissenting judge agreed, held the evidence was irrelevant. He distinguished the case before him from those where evidence of similar acts had been admitted to negative mistake or accident, such as successive acts of passing counterfeit coins or administering the same kind of poison, and any mistake:
is as to the inherent character of the thing administered, which does not vary, and is the same at the time of the commission of each successive act. But the act of pretending that a genuine cheque is a valid one is in substance a pretence that circumstances exist at the time of the passing of the cheque which justify a belief that the cheque will be met. Such circumstances may exist on one day and not on another ...51
82 Bruce J thought it obvious that the passing of the dishonoured cheque on July 5 had no bearing upon the question of the knowledge of the prisoner of the state of his banking account on June 24 or 26. He also thought:
such evidence was not admissible on the charge of July 6 ... because there is no evidence to shew that the dishonour of the cheque of July 5 was brought to the knowledge of the prisoner before or at the time he issued the cheque of July 6.52 [emphasis added]
Unless of course the possibility was open – as the majority held it was – that the accused might be guilty of the charge of which he had been acquitted. It was implicit in the minority’s approach and in what Bruce J said that the defendant must be taken to be innocent of the charge relating to the July 5 incident.
83 In the third category of cases, in a trial for perjury (or some other offence against justice), Sambasivam would have prevented the Crown from calling evidence that may cast doubt on the integrity of the very acquittal that it alleges the perjury was committed to procure. The jury would be denied the opportunity to consider what the Crown alleges to be the motive for the perjury. Yet, as long as the purpose of calling the evidence is not to overturn the acquittal, the principle against double jeopardy does not require exclusion.
84 The courts have recognised this, and have allowed an exception to Sambasivam in perjury cases where there is important new evidence. In DPP v Humphrys the defendant was stopped by a police officer for speeding and charged with riding a motorcycle whilst disqualified.53 The defendant testified that it was a case of mistaken identity, as he had not ridden his motorcycle during the period of his disqualification, and was acquitted. Subsequent inquiries revealed that he had been riding his motorcycle during the period of disqualification, and he was tried for perjury. The police officer repeated his evidence, which was inconsistent with the previous acquittal, and Humphrys was convicted. Humphrys appealed on the ground that the acquittal had finally settled in his favour the issue of whether he was the rider stopped by the police officer. The House of Lords dismissed his appeal.
85 Lord Hailsham said:
In an indictment for perjury like the present I would think that it is the duty of the court to apply the double jeopardy rule against the Crown not as a matter of discretion but as a matter of law where it is satisfied in substance that all the prosecution is doing is trying to get behind the original verdict by re-trying the same evidence. But where the prosecution by calling additional evidence which it could not have had available using reasonable diligence at the time of the first trial is in substance as well as in form putting the accused in jeopardy not for the original alleged misdemeanour of which he has been acquitted (or convicted) but for his crime against justice committed by perjuring himself at the first trial, there is no double jeopardy and the prosecution is entitled to adduce the evidence and make the assertions necessary to achieve its purpose whether or not the effect is to give rise to the inference that the previous verdict of acquittal was insupportable, or the previous conviction and punishment right.54
86 Lord Hailsham summarised the principles as follows:
(6) In general, the doctrine in criminal law55 precludes the Crown from adducing evidence or making suggestions which are inconsistent with a previous verdict of acquittal when its real effect is determined. The doctrine is one of substance rather than form. The court will inquire into realities and not mere technicalities.
(7) Where a second charge is brought which is different both in substance and in form from an earlier charge, the mere fact that some of the evidence adduced in support of the second charge is inconsistent with innocence on the earlier charge does not preclude the Crown from adducing that evidence in asserting its truth when considering a verdict on the second charge.
(8) Where the second charge consists in an allegation that the accused in the first charge has committed perjury in his evidence given on his own behalf in his defence on the former charge, the mere fact that some of the evidence brought in support of the charge of perjury is identical with evidence given in the first charge and inconsistent with innocence on that charge does not preclude the Crown from adducing that evidence or asserting its truth where it is accompanied by other evidence in support of the charge of perjury but
(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.56
87 The principles enunciated in Humphrys were adopted by the High Court and upheld by the Court of Appeal in Moore. The Court of Appeal said:
We agree with the Judge that the acquittal on the murder charge did not present a bar to the bringing of the conspiracy charge. The evidence being called was not very largely identical to the evidence put before the jury in 1992. There was substantial additional material, in particular the evidence of Mr M about how the defence evidence about the fingerprints came to be given. That evidence was obviously not available to the Crown in 1992. And, if there be a further requirement that the additional evidence must be shown not to have been available if reasonable diligence had been used by the Crown, that requirement was met. ...
The Crown was entitled to allege that the verdict of acquittal, whether it was right or wrong, was procured by an agreement to give false evidence. It was also entitled to place before the jury trying the conspiracy charge evidence about the homicide which was needed so that the jury understood what the 1992 trial was all about and, in particular, the significance of the fingerprint evidence called at that trial for the Crown. There was ample additional evidence relating to the conspiracy. If this is all the Crown had done there could have been no question of double jeopardy.57
But the Court of Appeal also said:
Because of the existence of the not guilty verdict the Crown was bound to put its case on the basis that Mr Moore remained entitled to the benefit of that verdict but that, accepting that it could not be contradicted, there had nevertheless been a conspiracy to achieve that verdict by an improper means. It is to be remembered that a conspiracy to pervert the course of justice can mean either a conspiracy to secure a wrong or unjust result, or a conspiracy to secure what the conspirators think ought to be a right result, by unlawful means (R v Senat (1968) 52 Cr App R 282 at p 288). In neither case is it necessary to show that the attempt was successful in its objective.58
88 One must ask how realistic it is to require that Moore, at his trial for conspiracy to pervert the course of justice, had to be taken to be innocent of murder because of his prior acquittal. When a murder is the setting for a conspiracy to commit perjury it may be thought artificial to insist that the accused must be treated as innocent of the murder, and it constrains the Crown from alleging what it believes to be the true and complete motive for perjury.
89 In Humphrys, Viscount Dilhorne’s ultimate conclusion was that when evidence is called for the purpose of proving perjury rather than guilt of the previously charged offence its admission is not barred even though acceptance of it “will lead to the inference that he was guilty of the offence of which he was acquitted at the first trial”.59 Then in proposition (8), Lord Hailsham said that where the Crown had other evidence to support the perjury charge it was not precluded from also adducing the same evidence as before, “or asserting its truth”, merely because it was inconsistent with innocence on the earlier charge.60
90 Neither of these conclusions is consistent with the Crown’s having to accept that the defendant must be taken to be innocent of the previous charge because of the acquittal. Moreover, they are conclusions arrived at in a case where it had not been strictly necessary for the Crown to rely on the previously rejected evidence, for the Crown had “fresh evidence” suggesting the falsity of the defendant’s evidence when he went beyond denying the particular offence charged. When for practical purposes it is necessary for the Crown to prove guilt of the original offence in order to prove guilt of perjury in denying it, we think it is even clearer that it would be wrong to insist that the perjury charge must be determined on an artificial (and, indeed, incoherent) assumption of innocence of the original offence.
91 On 22 June 2000, in R v Z,61 the House of Lords finally distanced itself from Sambasivam.
92 The English Court of Appeal had rejected a Crown interlocutory appeal against a decision at the preparatory hearing of a rape case to exclude similar fact evidence.62 There had been four previous occasions on which the accused was alleged to have committed rape, each involving a separate complainant, in circumstances that satisfied the test as to close similarity. The defendant had been tried separately in relation to each episode. On one occasion he had been convicted; on three he had been acquitted. The Crown sought to invite the jury to infer that, despite the previous acquittals, the accused had in fact been guilty on each occasion.63
93 The Court of Appeal accepted the Crown’s submissions:
94 It observed:
There can, therefore, be no incongruity in allowing a jury in a later case to look back at earlier incidents, even if they have when viewed individually led to acquittals. The jury’s verdict will be confined to the later case. If the jury can observe a previously unidentified pattern, which assists it to a result different from that to which it might otherwise have come, the ends of justice will simply have been served in respect of the later case. In our view this submission is in legal logic unanswerable. The only argument in an opposite sense is that, for reasons of policy and public expectation, the prior acquittals should be given an additional significance and value outweighing the public interest in a correct verdict on all the available evidence in the later case.
That the acceptance of this argument could lead to incongruity appears from examples given in the judgments in Ollis and in academic writing cited in the recent Law Commission Consultation Paper No. 156 on Double Jeopardy, paras 8.20 and 8.21. Writing in [1997] Crim LR 93, Prof McEwan said:
“... if in Smith [(1916) 11 CAR 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.”
Michael Hirst writing in [1991] Crim LR 510 gave what the Law Commission described as an even more telling example:
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 us of that crucial similar fact evidence ...
The risk of inappropriate or improperly prejudicial attempts by the Crown to revisit the subject-matter of past acquittals as similar fact evidence appears to us adequately covered by the courts’ power to stay abusive proceedings and/or to exclude evidence as more prejudicial than probative at common law . . .64
95 Nevertheless the Court of Appeal felt reluctantly constrained to follow precedent and to disallow the Crown’s appeal, even though it considered:
The narrow and difficult distinction for which Sambasivam, as explained in DPP v Humphrys, appears to stand – between a subsequent challenge to a prior verdict of acquittal and evidence merely tending to show the commission of a prior offence – does not appear a wholly satisfactory basis for dealing with and balancing the complex considerations capable of arising. Our review of individual cases confirms us in this belief.
Whether that be right or not, however, we consider that the principle in Sambasivam is both unnecessary and undesirable, in so far as it excludes absolutely evidence the relevance of which is to establish the defendant’s guilt on the present charge by showing the commission of a series of such offences, including offence(s) in respect of which he has been previously acquitted, while allowing the admission of evidence which merely bears on one element of the current offence, such as knowledge. In our view, the problems of similar fact evidence in this area can and would be better addressed by use, where appropriate, of the court’s powers to stay proceedings as an abuse. ... Those powers are exercisable in the light of all the relevant circumstances. The interests of justice in particular cases would benefit by this more flexible approach.65
96 The House of Lords had no similar compunction. Lord Hutton who delivered the leading judgment, with which the other Law Lords agreed, said:
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 that 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.66
97 After reviewing the authorities, textbook writers and commentators, he concluded:
(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’s case 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) ...
(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.67
98 In its consultation paper the Law Commission for England and Wales states that in its view the rule in Sambasivam is largely redundant and proposes:
(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.68
99 We agree with that approach, subject to our discussion below about fresh evidence. The arguments for abolishing the rule in Sambasivam appear irresistible (see the commentators quoted in paragraph 94). Further, the logic of absolutely forbidding the Crown in subsequent proceedings to make any propositions inconsistent with innocence on any count on which there has been an acquittal, but refusing to accord a co-defendant’s acquittal any relevance whatsoever under any circumstances,69 is not easily apparent.
100 Although the House of Lords was concerned with similar fact evidence, the logic of Lord Hutton’s statements cited in paragraphs 96–97 applies equally to the other two categories of cases set out in paragraph 67. We consider that Davis should be reviewed and R v Z followed.
Should fresh evidence be required?
101 Lord Hailsham’s reference to fresh evidence was made specifically in relation to perjury:
In an indictment for perjury like the present I would think that it is the duty of the court to apply the double jeopardy rule against the Crown not as a matter of discretion but as a matter of law where it is satisfied in substance that all the prosecution is doing is trying to get behind the original verdict by re-trying the same evidence. But where the prosecution by calling additional evidence which it could not have had available using reasonable diligence at the time of the first trial is in substance as well as in form putting the accused in jeopardy not for the original alleged misdemeanour of which he has been acquitted (or convicted) but for his crime against justice committed by perjuring himself at the first trial, there is no double jeopardy and the prosecution is entitled to adduce the evidence and make the assertions necessary to achieve its purpose whether or not the effect is to give rise to the inference that the previous verdict of acquittal was insupportable, or the previous conviction and punishment right.70
102 For the reasons stated by Lord Hailsham, the requirement for fresh evidence makes perfect sense in a case of perjury allegedly committed in a previous proceeding.
103 But where a defendant was originally tried on two charges arising out of the same incident, was acquitted on one charge and is to be retried on the other charge only because the jury could not agree or because the trial on that charge was aborted, one would not normally expect fresh evidence to come to light between the two trials. There is also no reason to require fresh evidence because the retrial does not arise from any attempt by the Crown to have a second chance at proving the defendant was guilty of the charge of which he or she had been acquitted. That is why Sambasivam says nothing about requiring fresh evidence.
104 Equally, in similar fact cases the Crown is not seeking to overturn the previous acquittal. Here, it is the similar fact evidence itself that provides added weight to the evidence directly relevant to the charge the defendant is facing. To require fresh evidence would be both illogical and unnecessary. Alternatively, the new charge could itself be regarded as ‘fresh evidence’: just as the similar fact evidence strengthens the evidence directly supporting the new charge, so this later evidence will strengthen the similar fact evidence allowing the similar fact evidence to be adduced.
105 We consider the rule in Sambasivam should be replaced by the following:
1 No person may be prosecuted for the same offence or on the same facts or substantially the same facts as gave rise to an earlier prosecution that resulted in his or her acquittal or conviction.
2 Provided that a defendant is not placed in double jeopardy, as described in (1) above, evidence that 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 or she had earlier been acquitted.
3 Such evidence is admissible without fresh evidence, except on a charge of [perjury] [a crime against justice] committed in relation to a trial that ended in an acquittal.
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