The Queen v Degnan [2000] NZCA 321; [2001] 1 NZLR 280; (2000) 18 CRNZ 319 (13 November 2000)

Last Updated: 7 December 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

CA347/00

THE QUEEN

V

RALPH DEGNAN

Hearing:	11 October 2000
Coram:	Thomas J Keith J Blanchard J Tipping J McGrath J
Appearances:	A R Laurenson for Applicant J C Pike and T C Brewer for Crown
Judgment:	13 November 2000

REASONS FOR JUDGMENT OF THE COURT DELIVERED BY TIPPING J

Introduction

[1] This application for leave to appeal a pre trial ruling raises an aspect of the law relating to similar fact evidence. At the conclusion of the hearing we indicated the application for leave would be granted but the appeal itself would be dismissed for reasons to be given later. The first question is whether similar fact evidence may be called by the Crown when the accused has been acquitted of an earlier charge based on that evidence. The second and related question is the same, save that instead of an acquittal there has been a stay of proceedings on the earlier charge.
[2] The applicant is charged with indecent assault. The Crown alleges that he met the present complainant, a 29 year old man, in a restaurant at which he, the applicant, worked. The applicant invited the complainant back to his house for the night, and offered to allow him to sleep in his bed. While the complainant was asleep the applicant is said to have got into the bed and indecently touched the complainant on his genitals. The applicant accepts he invited the complainant home and invited him to sleep in his bed, but denies that he got into bed and indecently touched the complainant. The Crown wishes to call evidence at the applicant's trial from two other young men who say they had very similar experiences. It is accepted that the similarities are such that, but for the points to be discussed, the evidence of the earlier complainants would qualify for admission as similar fact evidence. Indeed there is a high correspondence in the details of all three complaints and there is no suggestion of any collusion between the three young men.
[3] In 1997 the applicant was charged with indecent assault on the basis of the first man's allegations. He was acquitted at a summary trial. In 1999 he was charged with indecent assault on the basis of the second man's very similar allegations. This time he elected trial by jury. The Crown did not seek to call evidence from the first man. A stay was entered after two juries had failed to agree. The present issue is whether the Crown can call the first and second men at the trial to support the present complainant's allegations.

District Court decision

[4] In the District Court the Judge noted Mr Laurenson's acceptance that, but for the acquittal and stay points, the evidence of the other men would be admissible on conventional similar fact principles. His Honour then said:

Evidence relating to a previous charge, where there has been an acquittal, is permissible as a matter of discretion and depending on fairness, although obviously great care is required before admitting the evidence. That is the effect of, for example, R v Wilson [1997] 2 NZLR 161.

Mr Laurenson submits that the acquittal and stay and section 25(c) of the Bill of Rights Act 1990 combine to presume Mr Degnan is innocent until proved guilty and says any attempt by the Crown to lead the evidence led in the earlier cases, amounts to an attack on the presumption of innocence in the earlier verdicts.

Mr Laurenson says that in the earlier cases and in this one, the issue was really whether the acts occurred at all, rather than any question for example of identity or consent. He says that the Crown, if permitted to call the evidence again, would be attacking the verdicts in the earlier cases.

In R v Davis [1982] 1 NZLR 584, which I observe was 15 years or thereabouts before Wilson, issue estoppel was commented on as having no place in New Zealand criminal law.

There can be no question of double jeopardy here, because of the effect of the previous acquittal and the stay.

I do not see that the Crown if permitted to call the disputed evidence here, would necessarily be attacking the verdicts in the earlier cases. There was a verdict in only one in any event. The previous verdict must and does stand. The Crown would be it seems to me, entitled to say that verdict is unchallenged, but that if the totality of the material is before a jury in relation to this matter, the jury would be assisted. Although there was not then, there is now available, if permitted, evidence from a number of different persons about a number of incidents showing within themselves a similarity or pattern of conduct.

[5] The Judge next referred to the recent decision of the House of Lords in R v Z [2000] 3 WLR 117 in which the subject of similar fact evidence following earlier acquittals was expressly addressed. Their Lordships, for reasons to be discussed below, decided that such evidence was admissible. The Judge described the logic of their Lordships' reasoning as attractive and concluded his own ruling by saying:

The argument advanced against the admissibility of the evidence is based only upon the results of the earlier hearings. I do not regard such an objection as well made. The calling of the evidence by the Crown does not amount to an attack on every element of the previous verdict and even if it did, Z appears now to permit that. The evidence is relevant. Of course it is prejudicial, but in the overall context, not to the extent that it ought to be excluded on that basis, as is apparent from Mr Laurenson's proper acknowledgement.

Submissions in outline

[6] Mr Laurenson placed particular reliance on R v Davis (supra) and R v Wilson (supra) to which we will return. He argued that to permit the Crown to call evidence from the other men would be to allow the Crown to attack the correctness of the earlier acquittal and the effect of the stay. It would also, he argued, undermine the presumption of innocence and would thus be contrary to s25(c) of the New Zealand Bill of Rights Act 1990. Mr Laurenson submitted that hitherto, in circumstances such as the present, the law had drawn a distinction between evidence which directly attacked an acquittal and evidence which had that effect only indirectly. Counsel properly accepted that the House of Lords in Z had not favoured such a distinction nor the subtleties it tended to involve, but he urged us not to follow Z in that respect. Counsel argued that any evidence which necessarily undermined a previous acquittal should not be permitted, whatever its probative cogency. As a fall back position Mr Laurenson argued that if the rule was to become one of admissibility, subject to a discretion to exclude in the particular circumstances of the case, the present circumstances were such that the evidence should be excluded.
[7] For the Crown Mr Pike invited the Court to follow the House of Lords even if that meant departing from the position previously taken in Davis. He contended that both policy and principle favoured the approach taken by the House of Lords. Mr Pike accepted that if the evidence in question was admissible the Court nevertheless had a discretion to exclude it on grounds of abuse of process or unfairness. He submitted there was no basis for exercising that discretion in the present case.

New Zealand authority

[8] A number of cases were drawn to our attention. It is necessary to mention only two. In 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. The principal point established in Davis was that issue estoppel has no place in New Zealand criminal law. That conclusion does not assist Mr Laurenson's argument in the present case. He was constrained to accept that in order to succeed he had to persuade us to depart from that stance.
[9] We see no call to do so, particularly as the point was not the subject of specific argument. In any event the reasons which persuaded the Davis court to this conclusion seem compelling and the law in England has been settled against any issue estoppel in crime since R v Humphrys [1977] AC 1. Having rejected issue estoppel, Cooke J, who wrote for the Court in Davis, introduced the next section of the judgment with the heading "The conclusiveness of acquittal". He cited from the speech of Lord Hailsham in Humphrys and then made reference to the decision of the Privy Council in Sambasivam v Public Prosecutor, Federation of Malaya [1950] AC 458. It should be noted here that in Z the House of Lords did not follow Sambasivam. The crucial passage in the judgment of the Board in that case was:

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.

[10] The Davis court expressed its conclusion on this point in these words:

The need in Sambasivam's case for a direction that the accused must be taken to be entirely innocent of that on which he has been acquitted, and that the prosecution could not assert a substantial or important part of what the confession said, was either expressly accepted or not questioned in the House of Lords in Humphrys by Viscount Dilhorne at pp 17-18; 503, Lord Hailsham at p 36; 519, Lord Salmon at p 44; 526, and Lord Edmund-Davies at p 50; 531. And an examination of the judgments in Storey [1978] HCA 39; [(1978) 140 CLR 364] shows that one point on which at least six of the seven members of the Court (Barwick CJ, Gibbs, Stephen, Mason, Jacobs and Aickin JJ) were agreed was that it had to be made clear to the jury that the previous acquittal could not be challenged and that the evidence must not be taken as proving guilt on the previous charge.

If the challenged evidence is to be admitted here, it must surely be in toto. It would not be satisfactory to withhold evidence that the suitcases contained cannabis. That would be calculated to produce something akin to the situation envisaged by Aickin J in Storey at p 425: ". . . its rejection would tend to make the case unintelligible and to lead the jury into seeking some kind of an explanation for otherwise inexplicable events, which may be as likely to be prejudicial to the accused as to the prosecution."

The jury would have to be told, however, that they must accept that Davis was entirely innocent of importing the cannabis in the suitcases. We think that it would be extremely difficult, if not impossible, for the jury to apply such a direction conscientiously and yet to isolate some residual legitimately probative features of the challenged evidence. Unless it helps to prove that the buried cannabis came into New Zealand in the crates the challenged evidence adds nothing significant to the prosecution's case. It can only help to prove that origin if accompanied by the firm qualification that Davis must be taken to be not implicated in the importing of the cannabis in the suitcases. 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. So, as a matter of fairness and respect for the conclusiveness of the prior acquittal, we think that it will have to be excluded.

[11] Two points are apparent from reading the judgment in Davis as a whole. First, the Court was significantly influenced by Sambasivam, the presently material aspect of which has not been followed by the House of Lords. Second, in Davis the evidence was rejected "as a matter of fairness and respect for the conclusiveness of the prior acquittal". There is, with respect, some difficulty in such a dual approach. If the evidence was rejected in terms of Sambasivam because it would undermine the conclusiveness of the previous acquittal, it was rejected as inadmissible before one gets to any question of discretion. It is only if the evidence is otherwise admissible that the question of fairness arises. It may be that the Davis Court considered the evidence admissible but that it should be excluded as a matter of discretion for unfairness and abuse of process (ie. because it undermined the "conclusiveness" of the previous acquittal).
[12] It is important on admissibility questions to be clear whether the evidence is being excluded as a matter of law or as a matter of discretion. Evidence is inadmissible as a matter of law when there is some rule of law precluding its admission whatever the circumstances. Evidence which is ruled inadmissible as a matter of discretion is admissible as a matter of law but excluded because of some feature of the particular case which requires that outcome. Unlawfully obtained evidence is, for example, generally admissible at law, but may be excluded as a matter of discretion.
[13] It is not altogether easy to determine whether in Davis the Court viewed the evidence as inadmissible at law or only as a matter of discretion. There are indications both ways. Davis is not a clear precedent for evidence of the kind in question being inadmissible at law, the more so now that the authority of Sambasivam has been rejected by the House of Lords. It cannot be denied that evidence of the kind now under discussion clearly passes the primary criterion for admissibility at law, namely relevance. The starting point on all admissibility questions is that all relevant evidence is admissible unless excluded by some rule of law or by judicial discretion. The principal question in this case is therefore whether there is or should be a rule of law excluding the evidence in issue and, if so, how that rule is to be expressed. But we will defer that enquiry until after we have examined further authorities and materials.
[14] The second New Zealand case is Wilson. The appellant had been convicted of sexual offences involving a number of women and girls over a 25 year period. Similar fact issues arose. One aspect was the Crown's wish to lead evidence of events which had been the subject of a previous acquittal. The Court appeared to proceed on the basis that the evidence was admissible at law, because it was relevant and there was no exclusionary rule. The prejudicial effect of the evidence was not seen as outweighing its probative value. In cases where the Crown wished to lead similar fact evidence following an acquittal, the Court indicated that two conditions had to be satisfied. The first was that the evidence qualified on general similar fact principles. The second was expressed in this way:

Secondly, there is the issue of the fairness of allowing the use of evidence relating to a matter on which there has previously been an acquittal, a question turning in the end on the exercise of a judicial discretion.

[15] In relation to the case of Wilson itself, the Court said of the fairness condition:

The more difficult issue is fairness. It seems inherently unfair to use against an accused, a second time, evidence which formed part of the case against that person on an earlier trial which ended in an acquittal. As, however, Thorp J pointed out in R v H (T20/93) (1994) 11 CRNZ 342 in New Zealand the Courts have not proceeded on the basis that disqualification on grounds of unfairness follows automatically. Absent such a doctrine, the challenge is to find some principled basis for deciding what is not unfair in particular circumstances.

[16] The Court then referred to R v Roberts (1992) 10 CRNZ 172 (CA) and said:

The effect of that decision was succinctly summarised by Thorp J in R v H at p 346: evidence may be allowed notwithstanding a prior acquittal provided it does not involve or amount to an allegation that the accused committed each element of the offence of which he was previously acquitted.

[17] The Wilson Court concluded its discussion of this topic in this way:

The authors of Adams on Criminal Law (3rd ed) say at Ch2.7.10 that recent cases have illustrated an increased readiness to admit evidence of the circumstances surrounding an event in respect of which the accused had earlier been charged and acquitted. If this is correct we should like to say that at the least, great care is required before admitting such evidence. The present case had particular features. A clear distinction could be drawn between the evidence on which the Crown relied for similar fact purposes, and that required to establish the charge in respect of which the appellant had previously been acquitted. One could not say, as was the case in R v Davis, that it would be virtually impossible for the jury to "isolate some residual legitimately probative features" of the similar fact evidence. The acquittal, and the consequent presumption of innocence, related to the alleged intercourse. The administration of drugs, which in the Crown's contention preceded it, was not the subject of any previous charge. Further, the special circumstances diluted the prejudicial effect in a way that would not generally occur. Finally, we draw attention to the existence of overseas authority supporting an argument that the finding of innocence implicit in the earlier acquittal should automatically disqualify the prosecution from leading that evidence again, see R v Cullen (1989) 52 CCC (3d) 459 and R v G (KR) (1991) 5 OR (3d) 406; 68 CCC (3d) 268, both decisions of the Ontario Court of Appeal which were not cited to us nor, it would appear, to the trial Judge.

[18] The tenor of Wilson is that similar fact evidence following an acquittal is not inadmissible at law but may be excluded as a matter of discretion. While it may be possible to view Davis as a decision that such evidence is inadmissible as a matter of law, it is not possible to regard Wilson as such a case.

The decision of the House of Lords in Z

[19] In Z the appellant was charged with rape. His defence was consent or belief in consent. The Crown wished to lead evidence from four women who had made previous complaints of rape against the appellant. Each of these prior complaints had resulted in separate trials. In one there was a conviction but in the other three the appellant had been acquitted. The evidence which had resulted in the acquittals qualified on similar fact principles but the trial Judge and the Court of Appeal had ruled it inadmissible on the basis of those acquittals. The House of Lords held the evidence admissible. The principal speech was delivered by Lord Hutton. Lord Hope and Lord Hobhouse delivered concurring speeches and Lord Browne-Wilkinson and Lord Millett agreed with the speeches of Lord Hutton and Lord Hope.
[20] The Court of Appeal had regarded themselves as bound by authority to hold the evidence inadmissible at law. They did so with regret and would have come to the opposite conclusion if they had seen themselves as free to do so. The principal authority in favour of inadmissibility at law was Sambasivam. Lord Hutton traversed a number of the earlier cases in his speech including R v Ollis [1900] 2 Q.B. 758, G (an infant) v Coltart [1967] 1 Q.B. 432 and R v Humphrys (supra). He noted that Sambasivam appeared to have been approved in Humphrys, "but the members of this House expressed differing views as to the grounds for the decision". His Lordship considered those grounds and then expressed his own view of Sambasivam in these words:

My Lords, I consider, with great respect, that in Sambasivam’s case 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 DPP [1964] 2 All ER 401 at 447, 449, [1964] AC 1254 at 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.

[21] Lord Hutton summarised his views by saying that qualifying similar fact evidence which had led to a prior acquittal was admissible at law provided there was no double jeopardy, as had been the position in Sambasivam properly understood. He held that no distinction should henceforth be drawn, as suggested in the earlier authority, between evidence which shows guilt of an earlier offence of which the present accused has been acquitted and evidence which tends to show guilt of such an offence or which relates to one distinct issue as opposed to the issue of guilt as a whole. Thus English law was unshackled from the difficulties and artificialities created by these distinctions.
[22] Lord Hope expressed his views in the following way:

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 s 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 at 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.

[23] In his speech, Lord Hobhouse drew attention to the difference which we have earlier addressed, between inadmissibility at law and inadmissibility as a matter of discretion when he said:

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 s 78 of the Police and Criminal Evidence Act 1984. But as regards admissibility, it is in principle admissible.

[24] His Lordship then went on to point out that there can be a wide variety of situations, of which he gave examples. He spoke of a spectrum of possible factual circumstances ranging from defences of consent involving a straight conflict of evidence between the complainant and the accused, through cases of belief in consent to cases where the defence to a rape charge is mistaken identity and alibi. His Lordship then concluded:

I agree that the rule in Sambasivam v Public Prosecutor, Federation of Malaya [1950] 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 1984 Act 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 s 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 s 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’s case, conclusive.

[25] Thus, when subscribing to the view that the evidence was not inadmissible at law, Lord Hobhouse emphasised, as had been mentioned by Lord Hope and is implicit in Lord Hutton's speech, that while it is admissible at law, evidence of this kind may be excluded on discretionary grounds such as fairness.

Canada and Australia

[26] The position in Canada is not the same as that now reached in the United Kingdom as a result of Z. Indeed Lord Hutton at end of his speech in Z expressly mentioned the decision of the Supreme Court of Canada in R v Arp [1998] 3 SCR 339. He cited a passage from the judgment of Cory J which he said had not caused him to alter his opinion, in that he took a more limited view of the notion of double jeopardy than appeared to prevail in Canada. But that is to begin at the end. The logical starting point is the decision of the Supreme Court of Canada in Grdic v The Queen [1985] 1 SCR 810. The appellant had been charged with a blood alcohol offence and acquitted. He was subsequently charged with perjury. The Supreme Court held he had the benefit of an issue estoppel. Mr Laurenson in the present case accepted that issue estoppel was not "currently" available in New Zealand criminal law. The approach of the Supreme Court in Grdic was followed by the Ontario Court of Appeal in R v Cullen (1989) 52 CCC (3d) 459 (mentioned in Wilson). The Court held that "conduct leading to a charge of which an accused has been acquitted cannot be proved against him as similar acts". Then comes R v Arp in which Cory J for the Court said at para 78:

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.

[27] And in R v Regan (1999) 131 CCC (3d) 286 the Supreme Court of Nova Scotia extended the Grdic prohibition to a case where there had been a stay rather than an acquittal. This was a decision on which Mr Laurenson naturally relied in respect of the stay dimension of the present case.
[28] The position in Australia is at present influenced by the decision of the High Court in Kemp [1951] HCA 39; (1951) 83 CLR 341. In a judgment delivered by Dixon J the Court applied what was then the recent decision in Sambasivam saying at 342:

This is an appeal by special leave from an order of the Court of Criminal Appeal dismissing the prisoner's appeal from his conviction.

The prisoner was indicted upon three counts for indecent assault upon the same boy. The first count laid the offence on 12th July 1948; the second on 15th July 1948; and the third on 22nd July 1948. On his first trial the prisoner was acquitted on the first and second count and convicted on the third count. A new trial was ordered on the third count. On that second trial evidence was tendered of similar acts consisting of offences by the prisoner on the boy prior to 22nd July. At one stage the boy said there were only two such offences. Clearly if that was so they must have been the subject of the two counts on which the prisoner was acquitted. It is however suggested that they were in fact other occasions. The decision of the Privy Council in Sambasivam ...... is decisive to show that the prisoner must be taken to have been innocent of the charges covered by the two first counts of the indictment for such a purpose as that for which the evidence was tendered. As to the effect of issue estoppel based upon acquittal see also R v Wilkes [1948] HCA 22; (1948) 77 C.L.R. 511 at pp 518, 519.

The boy may have been uncertain as to dates and confused. But it seems to us to be clear upon the evidence that the occasions covered by the indictment were at least included in the evidence of similar acts which was tendered and received. Evidence of these occasions was, in our opinion, inadmissible. The evidence was admitted after objection. Moreover, no direction was given to the jury enabling them to understand that they should discard any evidence covering the same matters as were the subject of the two first counts. The conviction, therefore, in our opinion, cannot be supported.

We would, in these circumstances, order a new trial, were it not that the prisoner has been serving his sentence under the conviction, and that sentence commenced on 26th July 1949, nearly two years ago. As it is we think that it is enough to allow the appeal and quash the conviction.

Law Commission

[29] In its preliminary paper No. 42 entitled Acquittal Following Perversion of the Course of Justice: A response to R v Moore, published in September 2000 the Law Commission extensively reviewed in Chapter 4 the effect of an acquittal on subsequent proceedings. The Commission confirmed that in New Zealand, as in England, no issue estoppel arises in criminal proceedings. The position in Australia and Canada was contrasted. The Commission then proceeded to examine the rule in Sambasivam.
[30] At para 74 the paper suggests that in similar fact cases the rule has led to results "that some would regard as undesirable". Davis is then discussed, as is Wilson. The Commission next examines the decision of the House of Lords in Z in which the House "distanced itself" from Sambasivam. The Commission notes that the Law Commission for England and Wales, in a consultation paper published in 1999 had expressed the view that the rule in Sambasivam was inappropriate and should, with certain safeguards, be abolished. In conclusion on this topic the Commission suggests that Davis should be reviewed and R v Z followed.

Discussion - previous acquittals

[31] Against that background we can address the issues arising quite shortly. The first question is whether the evidence under consideration should be declared inadmissible at law, ie. inadmissible in all circumstances. For that to be done a relevant exclusionary rule would have to be identified or created. The evidence is ex hypothesi relevant, otherwise it would not be admissible in any event. It qualifies as similar fact evidence. What reason of principle or policy should then make it inadmissible in all circumstances? There can be no question of double jeopardy as that expression is conventionally understood and as it has been enacted in s26(2) of the Bill of Rights and s10(4) of the Crimes Act 1961. No question arises of putting the accused in jeopardy of conviction and punishment for an offence of which he has been previously convicted. There can be no plea of autrefois acquit. Issue estoppel is not a feature of our criminal law. The cognate doctrine of res judicata cannot therefore logically assist the applicant.
[32] Mr Laurenson placed much stress on the presumption of innocence. Section 25(c) of the Bill of Rights says that everyone charged with an offence has the right "to be presumed innocent until proved guilty according to law". That must mean presumed innocent of the offence charged, otherwise the presumption would prevent similar fact evidence from being called when no previous charge had been brought on the basis of that evidence. That has never been suggested, let alone held to be the law.
[33] In policy terms such evidence as is in issue in this case should be admissible at law subject to a judicial discretion to exclude it. If it were not so the unedifying spectacle might arise of a succession of acquittals based on individual allegations which, viewed in isolation, left room for doubt, but which, when viewed as part of a pattern, each drawing support from the others, might lead irresistibly to a conclusion of guilt. The accused has the benefit of the earlier acquittal or acquittals in that he can never again be tried for the offences involved. But he should not have the further benefit of being immunised from the relevant evidence when facing a similar charge in the future. This is an issue on which the law must strike a balance between the interests of those previously acquitted and the interests of society in having all relevant evidence before the Court when someone is prosecuted for a crime. In this field that balance generally comes down in favour of the interests of society. But there must always be a reserve power to exclude the evidence, if in the particular circumstances it would not be fair to the accused to admit it. An example of such a case might be the alibi situation mentioned by Lord Hobhouse in Z. On a prior charge of rape the accused has stated he was not the rapist. He has gone to much time, trouble and expense to procure alibi witnesses to say he was elsewhere at the relevant time. He is found not guilty. Two years later a very similar rape occurs in much the same location. The accused is charged with it. It might then be unfair to the accused to seek to lead evidence from the first complainant, in spite of her evidence otherwise qualifying on similar fact principles.
[34] We find it difficult to endorse the approach taken in some of the Canadian cases that a verdict of not guilty is the equivalent of a declaration of innocence. That approach risks elevating perceived theory over the realities of criminal practice. In the vast majority of cases a jury, when returning a verdict of not guilty, cannot be taken as saying affirmatively they are satisfied the accused is innocent; what they are really saying is that they are not satisfied beyond reasonable doubt the accused is guilty. While our system of criminal justice does not allow a second trial, whatever the force of new evidence that may be discovered, it would be to tilt the balance too far in favour of the accused to have an absolute rule of exclusion of the evidence supporting the first complaint at a subsequent trial of an unrelated but sufficiently similar complaint.
[35] We respectfully agree with the House of Lords that a rule such as that which distinguishes between evidence proving guilt of the earlier allegation and evidence tending to prove such guilt is unsatisfactory, as are the various allied distinctions. The decision of this Court in Davis does not stand clearly in the way of the conclusion which we consider correct for New Zealand. In any event Davis is undermined by the approach of the House of Lords to Sambasivam upon which it was significantly based. Our preferred approach represents an appropriate evolution of the law of evidence in this field once the relationships of the concepts of double jeopardy, issue estoppel and the presumption of innocence to the present question are properly analysed.

Discussion - previous stay

[36] It will be recalled that one of the previous charges against the applicant in this case resulted not in an acquittal but in a stay. If, as we have held, evidence resulting in a prior acquittal is admissible at law the same position must apply, if anything more strongly, in the case of a stay. The premise upon which the Nova Scotia Supreme Court decided Regan is not the same in New Zealand. Any equation of a stay with an acquittal must in this country lead to the evidence being admissible.

Conclusion

[37] Evidence which otherwise qualifies for admission on similar fact principles is not rendered inadmissible at law by reason of the fact that a previous trial based on that evidence has resulted in an acquittal or a stay of proceedings. Such evidence is admissible, subject to the discretion of the Court to exclude it if its admission would be unfair to the accused, or would otherwise result in an abuse of process. To obtain such exclusion the accused must be able to point to some particular feature of the case which requires that outcome against the general admissibility of evidence of this kind.
[38] Mr Laurenson endeavoured to demonstrate that the evidence of the two men should be excluded in this case as a matter of fairness. The only point which counsel was able to raise was the probability that if faced with the evidence in question his client would have to give evidence rather than rely on what he had said at interview. Counsel indicated that at the previous trials the accused had accepted everything the complainants had alleged, except indecent touching. He had even admitted getting into the same bed with each of them. These matters fall well short of establishing any unfairness to the applicant in the admission of the relevant evidence at his forthcoming trial. Nor can there be any suggestion of abuse of process. Indeed the present case provides a good example of the public interest rationale for admitting evidence of this kind.

Formal order

[39] It was for the reasons given that we gave leave to appeal but upheld the decision of the District Court to admit the evidence in question.

Solicitors
Govett Quilliam, New Plymouth, for Applicant
Crown Law Office, Wellington