Conviction of Assault by Penetration, Quashed
Queen v Blerim Hajdarmataj
https://www.bailii.org/ew/cases/EWCA/Crim/2019/303.html
On 22 June 2016, following a trial before Her Honour Judge Peters and jury in the Chelmsford Crown Court, this Appellant was convicted in his absence, by a majority of 11-1, of an offence of assault by penetration, contrary to Section 2 of the Sexual Offences Act 2003. The Appellant had fled during the course of the trial. On 16 September 2016, again in his absence, the Appellant was sentenced to eight years' imprisonment. He was arrested on a European Arrest Warrant on 29 November 2016 and returned to England on 10 February 2017 and at that stage he was sentenced to three months' imprisonment for the Bail Act offence in addition to the existing sentence.
The Appellant seeks permission to appeal his conviction on the ground that the judge admitted bad character evidence during the trial. In 2013, the Appellant was acquitted of rape in circumstances said to be very similar to those in the instant case. The Appellant sought leave to appeal his conviction on the basis that the evidence was wrongly admitted. The Single Judge referred the application to the full court. His application was heard before us on 15 February 2019. The Appellant was represented by counsel Ms Vine, who represented him at the first trial, but was unavailable to represent him at the second trial. Having heard argument, we granted the Appellant leave to appeal and quashed his conviction. On the application of the Crown, we ordered a re-trial. We further ordered that the case should not be reported until the conclusion of any further criminal proceedings. We now give the reasons for our decision.
Analysis
It is helpful to begin by distinguishing two discrete questions: firstly, the evidence of previous offending (or other bad character) given in an earlier trial which has resulted in an acquittal, and secondly admission in evidence of the acquittal itself. We are here principally concerned with the first issue.
We note, however, that where such evidence of previous offending is admitted as bad character evidence, the second issue will often arise. This question was addressed in R v H (JR) (1990) 90 Cr App Rep 440, and is helpfully digested in the 2019 edition of Archbold at paragraphs 4-400/401. Lord Lane CJ made it clear that fairness to both sides must be the guide on this point. We have considered recent authority on the point, in particular R v Preko [2015] EWCA Crim 42, and R v Mellars [2019] EWCA Crim 242. In our view, where the evidence of a complainant was the essence of the case in the trial leading to an acquittal, and where accuracy or credibility was the critical question before the acquitting jury, it may be appropriate to adduce the acquittal, as well as the previous complainant's evidence, if the latter is to be admitted as bad character evidence in a subsequent trial. The second jury will necessarily hear that there was a first trial, and that the witness was the complainant in that trial. If they are not told of a conviction, they may in any event conclude there was an acquittal. Or they may wrongly infer there was a conviction, which would be a highly prejudicial matter. There must also be a risk that, despite the warnings they will have received, a juror or jurors will be tempted to search on the internet for the result of the first trial. If the fact of acquittal is admitted, the jury will be directed that it is not relevant to their considerations. They must assess the evidence for themselves.
The decision in R v Z removed a bar to the admission of evidence given in a previous trial which ended in acquittal. The earlier position of the law had been laid down by the Judicial Board of the Privy Council in Sambasivam v Public Prosecutor, Federation of Malaya (1950) AC 458. In that case, Lord MacDermott had stated:
"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."
In the leading speech in R v Z, Lord Hutton overturned that aspect of Sambasivam. The critical passage in his speech reads as follows:
"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's case, 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 [1967] 1 W.L.R 674 and the cases cited by Lord Pearce in Connelly's case, at pp. 1362-1364, and see also Reg. v. Beedie [1998] 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 [1967] 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." (p505 A-D)
Hence, the effect of R v Z is simply to remove the bar to the admission of such evidence. However, in our judgment it does not define the basis for admission. At the time when R v Z was decided, such evidence could only be admitted as "similar fact" evidence, and the report in R v Z makes it clear that it was on such a basis the Crown sought to introduce the evidence of previous complainants.
However, as the judge in the instant case observed, the law on admissibility of bad character evidence has changed radically since then, with the introduction of the provisions in Part 11 of the Criminal Justice Act 2003. We have considered very carefully whether the terms of the revocation of the earlier bar on such evidence laid down in R v Z can properly be said to be the basis of a continuing requirement, after the commencement of the 2003 Act, for "striking similarity" in the relevant evidence or indeed any other particular requirement before admission. Ms Vine for the Appellant made no such submission to us and we can see no basis for any such conclusion.
Modern criminal procedure requires a number of safeguards to be in place to ensure fairness. These are too numerous and too well-known to require extensive re-statement, but principal ingredients are disclosure of any relevant "unused material", or records of any previous account given in interview and of any previous witness statements, in order to check consistency. Those safeguards are present for a reason and should be an obvious port of call where the Crown seek to adduce the evidence of an earlier complainant in a later trial. It is for the Crown to satisfy the court that the admission of such evidence will not cause injustice, the more so since it is the Crown's application to introduce the evidence. Absence of these safeguards may well be relevant to the judge's decision on admission, or discretionary exclusion of the evidence.
If the relevant solicitors representing the Defendant on the "second" trial have the unused material and/or previous statements from a first trial because, as here, they represented the relevant Defendant in the first proceedings, then it may well be their duty to produce them if requested to do so, pursuant to Criminal Procedure Rule 15.4(1), depending on the content of the defence statement. However, that will depend on the accidental circumstance of previous representation and retention. It must not divert from the duty of the prosecution who will be advancing the application to admit.
A useful parallel is to consider the position on a retrial of such allegations following a first inconclusive trial. There, no question would arise but that the Crown should produce the relevant unused material or any previous statements, in interview or otherwise. In addition, on a retrial, it would be normal to obtain a record of the evidence given by the relevant witness or witnesses in the first trial, whether by means of a transcript or access to the recording of the evidence, leading to a note agreed by counsel covering any relevant points. In our judgment it will normally be essential in support of such an application as this for the Crown to produce evidence of what was said in the earlier trial by one suitable means or another. If resort to a recording is impossible or sensible cooperation cannot produce an agreed note, then a transcript would normally be necessary. The safeguards required for the giving of such evidence following an acquittal cannot normally be less than those required for a retrial, where there has not been an acquittal
Each case, of course, must turn on its facts and the trial judge must consider the safeguards on a case-by-case basis when looking at admissibility under one of the gateways, and on any application to exclude as a matter of discretion. It would normally be relevant to consider the question of the admission of the fact of acquittal when considering admission of such evidence
Conclusions
Following the approach laid down above, we reached the conclusion that the admission of the evidence of SD in the Appellant's trial constituted an error. His conviction is thereby rendered unsafe, and for that reason we have quashed it. We stress that our conclusions in no way preclude an application on any re-trial to introduce this evidence, provided the proper safeguards are in place. That will be an open question, entirely for the consideration of the judge on the re-trial.