Criminal

Evidence - rape - defendant's acquittal on previous occasions - admissibility of similar-fact evidence of previous complainantsR v Z: HL (Lord Hope of Craighead, Lord Browne-Wilkinson, Lord Hutton, Lord Hobhouse of Woodborough and Lord Millett): 22 June 2000

The defendant, charged with rape, had been acquitted of charges of rape three times previously and convicted once.

The Crown wished to call the previous complainants to give similar-fact evidence to negate his defence of consent.

The judge ruled that the evidence of the complainants in the three cases in which he had been acquitted was inadmissible, and that the evidence of the fourth would be insufficient to establish similar facts.The Court of Appeal, regarding itself as bound by the statement of Lord MacDermott in Sambasivam v Public Prosecutor, Federation of Malaya [1950] AC 458, 479, dismissed the Crown's appeal.

The Crown appealed.David Perry and Duncan Atkinson (instructed by Crown Prosecution Service, Casework Directorate) for the Crown.

Richard Benson QC and R Geoffrey Porter (instructed by Douglas Narayan & Partners) for the defendant.Held, allowing the appeal, that: although under the principle of double jeopardy in Sambasivam's case as stated by Lord Pearce in Connelly v Director of Public Prosecutions [1964] AC 1254, 1362, 1364 a defendant ought not to be prosecuted a second time where the two offences were in fact founded on one and the same incident or tried for a second offence that was manifestly inconsistent on the facts with a previous acquittal, evidence relevant on a subsequent prosecution was not inadmissible merely because it showed or tended to show that he was, in fact, guilty of an offence of which he had previously been acquitted; and that, accordingly, the evidence of the three complainants would, subject to the trial judge's discretion, be admissible.

(WLR)