Z, R. v

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

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

The objection to the admissibility of this evidence is based on Lord MacDermott's statement in Sambasivam v. Public Prosecutor, Federation of Malaya [1950] 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.

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