Z, R. v

Factual and Procedural Background

The Defendant is charged with raping Complainant C in 1998. He admits intercourse but asserts consent (or an honest belief in consent). The Crown wishes to adduce “similar fact” evidence from four earlier complainants (M, O, P and N). In three of those earlier trials (M, O, P) the Defendant was acquitted; in the fourth (N) he was convicted.

At a preparatory hearing in the Crown Court the trial judge held that all four sets of evidence satisfied the similar-fact criteria but excluded the evidence of M, O and P, relying on Sambasivam v Public Prosecutor. He further held that the evidence of N alone lacked sufficient cogency.

The Crown appealed. The Court of Appeal, while expressing regret, felt bound by Sambasivam and dismissed the appeal. A question of general public importance was certified, and the matter came before the House of Lords, which now delivers the present opinion.

Legal Issues Presented

1. Does the rule against double jeopardy (as articulated in Sambasivam) render inadmissible, at a subsequent trial, evidence which shows or tends to show that a defendant was in fact guilty of earlier offences of which he has been acquitted?
2. More specifically, can the Crown rely on such evidence as similar-fact evidence to rebut a defence of consent or honest belief in consent in the present rape indictment?
3. What discretionary role remains for the trial judge under section 78 of the Police and Criminal Evidence Act 1984 when such evidence is tendered?

Arguments of the Parties

Crown’s Arguments

• The evidence of the four previous complainants meets the modern similar-fact test and is highly probative on the live issues of consent and belief.
• Sambasivam should be confined to true double-jeopardy situations; it does not bar admission where the present indictment concerns a distinct incident.
• Any residual prejudice can be controlled by the judge’s discretion under section 78 PACE.

Defendant’s Arguments

• Lord MacDermott’s statement in Sambasivam makes an acquittal “binding and conclusive” in all subsequent proceedings; therefore evidence asserting factual guilt on the earlier counts is inadmissible.
• Allowing the evidence in effect forces the Defendant to defend himself a second time on allegations already tried, contrary to principles of finality and fairness.

Table of Precedents Cited

Court's Reasoning and Analysis

The House emphasised the fundamental rule that relevant evidence is prima facie admissible. The only bar recognised by common law is the prohibition on placing an accused in double jeopardy. That prohibition is infringed only when: (a) the same offence is re-tried, or (b) the prosecutor seeks to punish the accused anew on the earlier facts. Neither situation arises where evidence from earlier, distinct incidents is led solely to prove a new charge.

Examining Sambasivam, the leading speeches held that Lord MacDermott’s dicta were too wide. Properly confined, they protect against multiple prosecutions on the same facts but do not create an evidential exclusionary rule. Earlier English decisions such as Ollis, together with modern abuse-of-process jurisprudence (Connelly, Humphrys), confirm that courts retain a discretion to halt oppressive proceedings, yet do not mandate exclusion of otherwise relevant material.

The majority rejected the attempt in G v Coltart to distinguish between evidence that “shows” versus evidence that merely “tends to show” earlier guilt, calling the distinction artificial. Any risk of unfairness is adequately addressed by the trial judge’s statutory discretion under section 78 PACE to balance probative value against prejudicial effect.

Applying those principles, the evidence of M, O and P is relevant, highly probative on consent, and does not expose the Defendant to double jeopardy. It is therefore admissible, with the trial judge retaining power to exclude it if, on the facts, its prejudicial impact should outweigh its probative force.

Holding and Implications

APPEAL ALLOWED.

The certified question is answered in the Crown’s favour: evidence that shows or tends to show that a defendant was guilty of an earlier offence of which he was acquitted is admissible to prove a later, different charge, provided it is relevant (e.g., as similar-fact evidence) and subject to the judge’s discretionary power, particularly under section 78 PACE.

Implications: The decision re-states and clarifies the boundary between double jeopardy and evidential admissibility. It effectively overrules the broad reading of Sambasivam and disapproves G v Coltart, confirming that English courts may admit similar-fact evidence notwithstanding prior acquittals. The ruling strengthens prosecutorial ability to rely on patterns of misconduct while preserving judicial safeguards against unfair prejudice.