HOUSE OF LORDS
Lord Hope of Craighead Lord Browne-Wilkinson Lord Hutton Lord Hobhouse of Woodborough Lord Millett
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
(On Appeal from the Court of Appeal (Criminal Division))
ON 22 JUNE 2000
LORD HOPE OF CRAIGHEAD
- 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  AC 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 consentit will not always be by any meansbut 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,  AC 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  A.C. 1 of Reg. v. Ollis  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 sole and inescapable effect of adducing the evidence of the prior complainants would be to demonstrate by the reference to the "similarities" in the facts of the prior and present incidents that the defendant was guilty of rape on this occasion, having been guilty of rape on the earlier occasions.
"53. It follows that we consider that the present appeal must fail as a matter of authority. We reach this conclusion with regret. We are inclined to share the view provisionally put forward by the Law Commission in its Consultation Paper [No. 156, "Double Jeopardy"] to which we have already referred that the principle in Sambasivam is generally unnecessary. The narrow and difficult distinction for which Sambasivam, as explained in Reg. v. Humphrys, appears to standbetween 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.
"54. 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 and/or to disallow evidence under section 78 of the Police and Criminal Evidence Act 1984. 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. It may well be that, had these powers been as extensive and as well-established at the time when Sambasivam and even G. (An Infant) v. Coltart  1 Q.B. 432 and Reg. v. Humphrys were decided, the law would have developed differently. As it is, however, we consider with regret that we should follow the weight of authority which appears to us to be contrary to Mr. Perry's submissions both at the highest level and in this court."
The point of law of general public importance certified for the opinion of this House is:
"Other than in cases of autrefois acquit, (a) is evidence admissible on behalf of the Crown in a trial for offence A which also proves guilt in respect of one or more prior incidents (B, C and D) in respect of each of which the defendant has been tried and acquitted; and more particularly (b) is evidence so admissible if its nature and purpose is to show guilt in respect of offence A on the basis that offence A was not an isolated offence, but one in a series of similar incidents (including those in respect of which the defendant was tried and acquitted)?"
It appears that no authorities were cited to the Privy Council in Sambasivam on this issue and no reference was made to authorities in the passage in the judgment which relates to this matter. The passage relates to the protection which the law gives to a defendant against double jeopardy and therefore it will be appropriate to consider a number of other authorities on the subject and then to return to consider the judgment in Sambasivam in their light. One offspring of the rule against double jeopardy is the defence of autrefois acquit, but this plea is not available to the defendant in this case because he is charged with a different offence of rape to the offences with which he was charged in the earlier trials. In Connelly v. Director of Public Prosecutions  A.C. 1254, 1339-1340 Lord Devlin stated:
"For the doctrine of autrefois to apply it is necessary that the accused should have been put in peril of conviction for the same offence as that with which he is then charged. The word 'offence' embraces both the facts which constitute the crime and the legal characteristics which make it an offence. For the doctrine to apply it must be the same offence both in fact and in law."
A possible application of the concept of double jeopardy would be to hold that an acquittal by a jury in an earlier trial gives rise to an issue estoppel. Another possible application of the double jeopardy rule would be to hold that it is not permissible for the prosecution to call evidence in a subsequent trial which shows or tends to show that the defendant was, in fact, guilty of the offence of which he had been previously acquitted. With these possible applications of the double jeopardy rule in mind I turn to consider the authorities.
In Reg. v. Ollis  2 Q.B. 758 the defendant had obtained a sum of money by giving a worthless cheque. He was indicted for having obtained the money by false pretences. His defence was that when he gave the cheque he expected a payment into his bank account in time to meet the cheque, and he was acquitted. He was then tried on a second indictment charging him with three other acts of obtaining money by false pretences on three other worthless cheques. Counsel for the prosecution was permitted to call the same evidence that had been called against the defendant on the unsuccessful prosecution in respect of the one cheque, and the defendant was convicted. The trial judge stated a question for the opinion of the Court for Crown Cases Reserved as follows, at p. 761:
"Whether the evidence of the witness Ramsey (above set forth), which was the subject of the first indictment, upon which the defendant had been tried and acquitted, was legally admissible upon the trial of the second indictment for the purpose of proving guilty knowledge."
One of the submissions advanced on behalf of the defendant to the Court for Crown Cases Reserved was, at p. 762,: "To admit this evidence is to put the defendant in peril a second time in respect of the same facts." It was held by Lord Russell of Killowen C.J., Mathew, Grantham, Wright, Darling and Channell J.J. (Bruce and Ridley J.J. dissenting) that the evidence was legally admissible and that the conviction was right notwithstanding that the defendant had been acquitted of the former charge. Lord Russell of Killowen C.J. stated, at p. 764:
"The evidence was, after discussion, admitted; and Ramsey made precisely the same statement he had made before upon the trial of the first indictment when the accused was acquitted. The only point for our present determination is, whether that evidence was legally admissible on the ground that the facts disclosed in it were relevant to the subsequent charges. It does not appear to have been argued that it was not relevant as showing guilty knowledge, if it were not inadmissible on the grounds suggestednamely, that the facts sought to be given in evidence had already been given, and that the accused had already been acquitted of the charge to which they related. It is clear that there was no estoppel; the negativing by the jury of the charge of fraud on the first occasion did not create an estoppel; nor is there any question arising upon the maxim 'Nemo debet bis puniri pro uno delicto.' 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."
Darling J. stated, at p. 780:
"It seems to me, therefore, that by the admission of this evidence the defendant was not 'bis vexatus,' for I feel sure that those words are not to be understood as meaning that a man is not to be more than once annoyed by the same evidence. I think they mean that he is not to be by legal process twice exposed to the risk of being found guilty of the same crime, or the same tort, or liable twice to pay the same debt, be it to the State or to his fellow citizen.
"To hold otherwise seems to me to rule that evidence which has been given once shall never be produced again against the same defendant; yet it is plain that up to a certain point the evidence must often be the same, although the defendant is accused of wrongs done to two distinct persons, and that in different suits or forensic proceedings."
Channell J. stated, at pp. 782 and 783:
"Judges should be, and I believe generally are, careful not to allow proof of other acts of the prisoner besides those the subject of the indictment to be given, unless those facts have a clear bearing on some issue raised by the indictment, but if they have such a bearing I am unable to see how their proof becomes inadmissible because they have already, for a different purpose, been considered by another jury. Take as an illustration a case of counterfeit coin. Suppose a man passes a counterfeit half-crown, and on his trial, there being no proof of his having possession of any other counterfeit coin, the jury acquit. It is subsequently discovered that either before or after the passing of the one half-crown (in my opinion it matters not which) he has passed another counterfeit half-crown, and upon comparison of the two base coins they appear cast in the same mould. If tried for the secondly discovered case of uttering, the fact of the other uttering would be most cogent evidence, and the fact that when that other case was supposed to be an isolated one a jury had acquitted would neither detract from the weight of the evidence or 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
"I doubt whether the transaction with Ramsey was relevant on the subsequent indictment, but I am prepared to defer to the opinion of the majority of the court as to the mode in which the case should be dealt with, desiring only to express my clear opinion that, if the evidence was otherwise admissible, it is not the less so by reason of the former acquittal."
In Connelly v. Director of Public Prosecutions  A.C. 1254 the principal issue before this House was the ambit of the plea of autrefois acquit but consideration was also given in the speeches to the power of a court in a criminal matter to stop abuse of its process. Referring to the pleas of autrefois acquit and autrefois convict Lord Pearce said, at p. 1362:
"It is clear from several cases that the court in its criminal jurisdiction retained a power to prevent a repetition of prosecutions, even when it did not fall within the exact limits of the pleas in bar. In Wemyss v. Hopkins (1875) L.R. 10 Q.B. 378 the defendant was convicted under a statutory offence, that being a driver of a carriage he had struck a horse ridden by the prosecutor causing hurt and damage to the prosecutor. He was then summoned again for what was apparently a different offence, namely, that he did unlawfully assault, strike and otherwise abuse the prosecutor. In spite of their apparent differences the two offences were in fact founded on one and the same incident. On a case stated the second conviction was quashed."
And after referring to a number of authorities, including Sambasivam, Lord Pearce said, at p. 1364:
"The above cases show that a narrow view of the doctrines of autrefois acquit and convict, which has at times prevailed, does not comprehend the whole of the power on which the court acts in considering whether a second trial can properly follow an acquittal or conviction. A man ought not to be tried for a second offence which is manifestly inconsistent on the facts with either a previous conviction or a previous acquittal. And it is clear that the formal pleas which a defendant can claim as of right will not cover all such cases. Instead of attempting to enlarge the pleas beyond their proper scope, it is better that the courts should apply to such cases an avowed judicial discretion based on the broader principles which underly the pleas."
The approach stated by Lord Pearce is, however, subject to the qualification stated by Lord Devlin, at p. 1360:
"But a second trial on the same or similar facts is not always and necessarily oppressive, and there may in a particular case be special circumstances which make it just and convenient in that case. The judge must then, in all the circumstances of the particular case, exercise his discretion as to whether or not he applies the general rule. Without attempting a comprehensive definition, it may be useful to indicate the sort of thing that would, I think, clearly amount to a special circumstance. . . .I do not think that it is obligatory on the prosecution, in order to be on the safe side, to put into an indictment all the charges that might conceivably come within rule 3, leaving it to the defence to apply for separation. If the prosecution considers that there ought to be two or more trials, it can make its choice plain by preferring two or more indictments. In many cases this may be to the advantage of the defence. If the defence accepts the choice without complaint and avails itself of any advantage that may flow from it, I should regard that as a special circumstance; for where the defence considers that a single trial of two indictments is desirable, it can apply to the judge for an order in the form made by Glyn-Jones J. in Reg. v. Smith  1 W.L.R. 312."
The judgments of the majority in the Court of Crown Cases Reserved in Reg. v. Ollis  2 Q.B. 758 were considered and distinguished in G. (An Infant) v. Coltart  1 Q.B. 432. In that case the defendant, a domestic servant employed by Mr. Tod, was charged in two separate prosecutions before justices with theft of property from him and from Mrs. Doig, a guest in his house, the property having been found in the defendant's room after Mrs. Doig had left. The prosecution offered no evidence in the case of the alleged theft from Mrs. Doig who had gone to South Africa and was unavailable as a witness, and that charge was dismissed. On the trial of the defendant on the charge of theft from Mr. Tod her defence was that she had always intended to return the property, and to rebut this defence the prosecution adduced evidence that she had been told that Mrs. Doig was leaving for South Africa the next morning but she had not returned Mrs. Doig's property to her and therefore it was to be inferred that she had not intended to return Mr. Tod's property.
The defendant was convicted and appealed by case stated. The first question for the opinion of the Divisional Court was, at pp. 435-436:
"Whether the justices were right in law in overruling the submission by the defendant and admitting evidence on behalf of the prosecutor with the intention of showing or tending to show the commission of another crime by the defendant, notwithstanding that the evidence so adduced was directed towards the alleged commission of an offence of larceny in relation to the property of Mrs. Doig, in respect of which offence the defendant had, before the commencement of the proceedings which the justices were then hearing, been found not guilty by the justices."
The Divisional Court held that since the only relevance of this evidence was to show that the defendant was in fact guilty of the charge of theft of which she had been acquitted, the evidence had been wrongly admitted and the conviction was quashed.
Salmon L.J. stated, at pp. 439-440:
"It is plain, I think, that what the prosecution were seeking to do was to show that the defendant was really guilty in respect of the charge of which she had just been acquitted in order to obtain a conviction in the Tod case. I am quite satisfied that that cannot be done. . . .
"There is very little authority on this point. I think, however, on general principles that it would be quite wrong to allow the prosecution in order to obtain a conviction in case B to seek to show that the defendant was guilty in case A, after the defendant has been acquitted in case A. I have no doubt that, even although the defendant is acquitted in case A, evidence called against the defendant in case A could be relevant in case B, for example, to show what his intent was in case B. But it can never be permissible in case B to rely on the guilt of the defendant in case A if he has been acquitted in case A."
Salmon L.J. distinguished Reg. v. Ollis  2 Q.B. 758 as follows, at p. 440:
"it seems to me that the distinction between that case and the present one is that in the present case the only relevance of the evidence tendered was to prove guilt in the Doig case, whereas in Reg. v. Ollis the prosecution were able to say: we are not alleging let alone relying on the defendant's guilt in respect of the first cheque; we are relying on the fact that the first cheque was not met only to show what the defendant's knowledge or state of mind was when he gave the other three cheques."
Widgery J. stated, at p. 442:
"If a person charged with a criminal offence is acquitted by a court of competent jurisdiction, it seems to me clear that the prosecution on a subsequent charge brought against that person cannot seek to prove that he was guilty of the first charge, contrary to the verdict of the court on that charge, in order to obtain the benefit of any conclusion which might flow from such guilt.
"That is exactly what the prosecution sought to do here, because as far as I can see, the incident relating to Mrs. Doig had absolutely no relevance in regard to Mrs. Tod's jewellery except on the basis that the defendant was guilty of larceny in relation to Mrs. Doig's jewellery, and must on that account have been guilty in regard to Mrs. Tod's as well. I would draw attention, however, to the concluding words of Channell J. In Reg. v. Ollis, to which reference has already been made, where he expresses his clear opinion 'that, if the evidence was otherwise admissible, it is not the less so by reason of the former acquittal.' Hence it may well happen that evidence relating to the charge giving rise to the acquittal will be called on the subsequent charge, but if it is so called it will be called because it has relevance to the subsequent charge quite independently of any question whether the defendant was guilty or innocent on the first charge."
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:
"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  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 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  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  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."
"I would say here that I view the English case of G. (An Infant) v. Coltart  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  AC 458; Kemp v. The King, 83 C.L.R. 341 and G. (An Infant) v. Coltart  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  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  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  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"  Crim.L.R. 510, 517 Professor Hirst states that in Reg. v. Humphrys  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  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 , 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 beand the Board must judge of this from the record and the submissions of counsel who argued the appealthat 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  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  AC 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  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  AC 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  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.
A consideration of the authorities and of the textbook writers and commentators leads me to the following conclusions:
(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 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), as occurred in Reg. v. Riebold  1 W.L.R 674 and the cases cited by Lord Pearce in Connelly at pp. 1362-1364, and see also Reg. v. Beedie  QB 356.
(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.
(3) It follows from (2) above that a distinction should not be drawn between evidence which shows guilt of an earlier offence of which the defendant had been acquitted and evidence which tends to show guilt of such an offence or which appears to relate to one distinct issue rather than to the issue of guilt of such an offence. Accordingly the judgments in G. (An Infant) v.Coltart  1 Q.B. 432 should not be followed.
I would wish to add that the issue which arose in Reg. v. Hay (1983) 77 Cr.App.R. 70 as to the effect of a prior acquittal when the Crown on a subsequent prosecution seeks to rely on part of a confession, the other part of which the earlier jury has not accepted, does not arise in the present case and therefore, without intending to cast any doubt on the decision, I express no opinion upon it.
These conclusions to which I have come accord with the conclusion at paragraphs 8.38, 8.39 and 8.40 of the Law Commission's Consultation Paper No. 156 on "Double Jeopardy":
"8.38. In this part [Part VIII] we have argued that the rule in Sambasivam has two distinct applications. First, it protects the defendant against double jeopardy, by preventing the prosecution from bringing another charge inconsistent with a previous acquittal. But, given our proposal that the rule against double jeopardy should be retained and indeed extended, the rule in Sambasivam is not needed for this purpose. In this respect it is harmless, provided it is subject to the same exceptions as the double jeopardy rule, but redundant.
"8.39. The second application of the rule is in the case where the charge laid is not itself inconsistent with the previous acquittal, but the prosecution seeks to adduce evidence which, if accepted, means that the defendant must have been guilty of the offence of which he or she was acquitted. In this context the rule seems to work as a kind of issue estoppel. But even in civil law the doctrine of issue estoppel is subject to certain qualifications, which must be equally applicable to any counterpart of that doctrine in criminal law. For example, it apparently does not apply where new evidence has emerged since the previous decision. Moreover, it does not render evidence inadmissible: it states that, once an issue has been determined, it is no longer an issue in subsequent proceedings between the same parties. In criminal law this would presumably mean only that the defendant cannot be charged with an offence if one of the elements of that offence (not just the evidence of it) is the defendant's guilt of an offence of which he or she has already been acquitted. But in that case the charge would arise out of the same facts as the first. It would therefore be a case of double jeopardy. It seems to follow that the rule in Sambasivam cannot properly be applied outside the context of double jeopardy - where it is redundant.
"8.40. We provisionally propose that (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."
My conclusions also accord with the decision to which the Court of Appeal would have come if it had not considered itself bound by the weight of authority to allow the appeal.
In the present case the defendant is not placed in double jeopardy because the facts giving rise to the present prosecution are different to the facts which gave rise to the earlier prosecutions. The evidence of the earlier complainants is accepted to be relevant and to come within the ambit of the similar facts rule and therefore I am of opinion that it is not inadmissible because it shows that the defendant was, in fact, guilty of the offences of rape of which he had earlier been acquitted.
I consider that it is appropriate to substitute the word "shows" for the word "proves" in the certified question so that it reads:
"Other than in cases of autrefois acquit, (a) is evidence admissible on behalf of the Crown in a trial for offence A which also [shows] guilt in respect of one or more prior incidents (B, C and D) in respect of each of which the defendant has been tried and acquitted; and more particularly (b) is evidence so admissible if its nature and purpose is to show guilt in respect of offence A on the basis that offence A was not an isolated offence, but one in a series of similar incidents (including those in respect of which the defendant was tried and acquitted)?"
For the reasons which I have given I would answer part (a) of the question, "Yes, if the evidence is relevant to offence A," and I would answer part (b) of the question, "Yes, if the evidence is relevant to offence A and admissible under the similar facts rule, but subject in both cases to the discretion of the judge to exclude the evidence after weighing its prejudicial effect against its probative force or under section 78 of the Police and Criminal Evidence Act 1984."
After I had written this speech but before judgment was given Mr. Perry, counsel for the Crown, very properly brought to the attention of your Lordships the judgment of the Supreme Court of Canada in R. v. ARP  2 L.R.C. 119 which had come to his notice in the course of research which he was carrying out in relation to another case. He also sent a copy of the judgment to counsel for the defendant. In delivering the judgment of the Supreme Court Cory J. considered the effect of a prior acquittal on the admissibility of evidence at a subsequent trial. He said at p. 145:
"Finally, the appellant relies upon cases in which the Crown was prohibited from adducing as similar fact evidence in a subsequent trial of the same accused, testimony given in proceedings in which the accused was acquitted . . .
Those cases which have restricted the use of evidence underlying an acquittal as similar fact evidence in a subsequent trial of the same accused have done so on the basis of this court's decision in Grdic v. R  1 S.C.R. 810. Lamer J. wrote for the majority of the court (at p. 825):
'There are not different kinds of acquittals and, on that point, I share the view that 'as a matter of fundamental policy in the administration of the criminal law it must be accepted by the Crown in a subsequent criminal proceeding that an acquittal is the equivalent to a finding of innocence' . . . To reach behind the acquittal, to qualify it, is in effect to introduce the verdict of 'not proven,' which . . . has never been . . . part of our law . . . However, this does not mean that, for the purpose of the application of the doctrine of res judicata, the Crown is estopped from re-litigating all or any of the issues raised in the first trial. But it does mean that any issue, the resolution of which had to be in favour of the accused as a prerequisite to the acquittal, is irrevocably deemed to have been found conclusively in favour of the accused . . .'
The principle enunciated in Grdic is fundamental to our system of justice. It seeks to ensure that an accused need not repeatedly defend himself against the same allegations. Nevertheless, in certain circumstances, the fact of an accused's prior acquittal may have relevance to an ultimate issue in a subsequent trial. For example, in R. v. Ollis  2 Q.B. 758, the accused was charged with obtaining money by false pretences. He had obtained funds in exchange for a cheque that was later dishonoured. The accused was acquitted at his first trial on the basis that when he gave the cheque to the complainant, he expected to receive funds to cover it. The accused was later again indicted with obtaining money by false pretences, and at his second trial the Crown adduced the evidence of the first complainant as relevant to the accused's guilty state of mind. The court held that the evidence was properly admissible. As Widgery J. stated in G (An Infant) v. Coltart  1 All E.R. 271, 276:
'. . . it may well happen that evidence relating to the charge giving rise to the acquittal will be called on the subsequent charge, but, if it is so called, it will be called because it has relevance to the subsequent charge quite independently of any question whether the accused was guilty or innocent of the first charge.' (Our emphasis.)
On the basis of this reasoning, the evidence of the prior acquittal in Ollis was correctly admitted. It was admitted to prove intent. Even if the accused was acquitted of the first charge, the fact that he had been tried on similar charges once before went to his knowledge of wrongdoing irrespective of his guilt on the first charge. The fact of his prior trial and acquittal could be admitted for this limited purpose, but would of course require a careful instruction from the trial judge. Yet, in most situations, it will be unfair and inappropriate to admit the evidence underlying the prior acquittal as similar fact evidence in a subsequent trial of the same accused."
My Lords, this passage in the judgment of the Supreme Court does not cause me to alter the opinion which I have stated and, with great respect, I differ from the reasoning contained in it. I consider that the concern that "an accused need not repeatedly defend himself against the same allegations" is met by the observation of Darling J. in Reg. v. Ollis at p. 780 where he said:
"I feel sure that [the words 'bis vexatus'] are not to be understood as meaning that a man is not to be more than once annoyed by the same evidence. I think they mean that he is not to be by legal process twice exposed to the risk of being found guilty of the same crime . . ."
And, for the reasons which I have stated, I consider that the distinction between Reg. v. Ollis and G (An Infant) v. Coltart is a distinction which cannot be maintained.
Accordingly, I would allow the appeal.
LORD HOBHOUSE OF WOODBOROUGH
I agree that this appeal should be allowed for the reasons given
by my noble and learned friend Lord Hutton.
The correct answer to be given in this case is clear. It was a case of similar facts. Similar facts are admissible because they are relevant to the proof of the defendant's guilt. The evidence relating to one incident taken in isolation may be unconvincing. It may depend upon a straight conflict of evidence between two people. It may leave open seemingly plausible explanations. The guilt of the defendant may not be proved beyond reasonable doubt. But, when evidence is given of a number of similar incidents, the position may be changed. The evidence of the defendant's guilt may become overwhelming. The fact that a number of witnesses come forward and without collusion give a similar account of the defendant's behaviour may give credit to the evidence of each of them and discredit the denials of the defendant. Evidence of system may negative a defence of accident. This is the simple truth upon which similar fact evidence is admitted: it has probative value and is not merely prejudicial.
It follows from this that on the first such occasion and, may be, some subsequent occasions as well, the defendant will not have been prosecuted or, if prosecuted and tried, may have been acquitted. There will not have been enough evidence to convince a jury of his guilt. This is proper. But there will come a time when the accumulating evidence does suffice and a jury which can hear all the evidence now available should convict the defendant.
It is not disputed that the jury may hear about similar incidents which have not been the subject of a previous trial. The dispute is whether the jury may hear about similar incidents which have been the subject of earlier trials at which the defendant was acquitted. It would be a denial of the principle upon which similar fact evidence is admitted that such evidence should be treated as inadmissible. As I will stress, there will always be a question whether the trial judge should exercise his discretion to exclude the evidence under section 78 of the Police and Criminal Evidence Act 1984. But as regards admissibility, it is in principle admissible.
There can however be a wide variety of situations. A man may have to face a series of similar allegations of rape made by different women. His defence may on each occasion be consent or, at least, his belief that the woman was consenting. The defence may be difficult to rebut and he may be acquitted a number of times. But after a time it may become implausible and the case become overwhelming that he must have realised that the woman concerned did not consent or at least have been reckless whether she did or not. Such an example might not even involve the suggestion that the defendant actually was guilty on the earlier occasions. He may on those occasions have thought she was consenting and have been properly acquitted.
Or one can postulate a series of trials of the same defendant where the issue was whether the relevant complainant was telling the truth in saying that she was the victim of a forcible rape and was doing her best to fight off the defendant, evidence which at each trial the defendant contradicted by his evidence that the incident was amicable and friendly and she fully consented - a direct conflict of evidence. Evidence given at the later trial of a previous similar incident will only be relevant if the jury accept that that complainant is telling the truth, otherwise it has no probative value to the prosecution. The jury at the later trial would therefore have to consider whether to believe her and the defendant would be faced with needing to give evidence which would persuade the jury that she should not be believed. The issue raised at the previous trial would be tried again at the later trial and the defendant would be having to defend himself again. If the jury at the later trial decide to accept that complainant's evidence, they will be arriving at a decision inconsistent with that arrived at by the jury at the previous trial at which he was acquitted. But it may be proper that they should do so since the evidence will be different.
Or, the acquittal at the previous trial could have come about in a different way. The defendant's case then might have been that he was not the man who raped the woman; it was a case of mistaken identity. The defendant may have called alibi evidence. To admit at the later trial as a similar fact evidence of the earlier rape, which had not at the previous trial been proved to involve the defendant, would necessitate the prosecution at the later trial trying to prove his involvement in the earlier incident with the need to negative the alibi defence given at the previous trial. Here the previous acquittal would put in question the propriety of allowing 'similar' fact evidence to be given at all.
Thus there is a spectrum. At one end, there are similar facts which have a clear relevance and probative value at the later trial and proof of which may only marginally question the previous acquittal. At the other end, there are allegedly similar facts the relevance and probative value of which has to be proved and which, when proved, will directly controvert the previous acquittal. In between there are a variety of situations both as regards relevance and probative value and as regards the inconsistency with the previous acquittal.
I agree that the rule in Sambasivam v. Public Prosecutor, Federation of Malaya  AC 458 which seeks to exclude all such evidence does not provide an appropriate answer to the questions raised. Since that case was decided criminal procedure has moved on. The law governing the admission of similar fact evidence has been refined. The Police and Criminal Evidence Act 1984 makes express provision for the exclusion of unfair evidence. The trial judge has a discretion, which he must exercise, to refuse to allow evidence to be given if it appears to him that, having regard to all the circumstances, to allow it would have a significant adverse effect on the fairness of the proceedings. The rule as a rule of admissibility is properly confined to the principle of double jeopardy, using that term in its broader sense explained by my noble and learned friend in his speech.
But there does remain the important question of fairness. Fairness requires that the jury hear all relevant evidence. It also requires that the defendant shall not without sufficient reason be required more than once to rebut the same factual allegations. In principle a case supported by probative similar fact evidence is a sufficient reason. However, in exercising his discretion under section 78, the judge must take into account the position of both the prosecution and the defendant. If the fairness of the trial will be compromised by the non-exclusion of the similar fact evidence, the evidence should be excluded although otherwise admissible. Trial judges are experienced in exercising their discretion under section 78 and regularly have to balance probative value against prejudice. Any prejudice to the defendant arising from having to deal a second time with evidence proving facts which were in issue at an earlier trial is simply another factor to be put into the balance. The fact that the previous trial ended in an acquittal is a relevant factor in striking this balance but is no more than that. It is not, as would be the result of upholding the rule in Sambasivam, conclusive.
I have had the advantage of reading in draft the speeches of my noble and learned friends Lord Hope of Craighead and Lord Hutton. For the reasons they give I agree that the appeal should be allowed. There is no justification for the supposed rule which prevents the prosecution from making an assertion which is inconsistent with the acquittal of the defendant on an earlier and different charge. In the present case it is common ground that the evidence of other complainants is admissible as evidence of similar facts, and accordingly we are not called upon to rule upon the admissibility of such evidence.