Ngyuen, R v [2008] EWCA Crim 585

[2008] EWCA Crim 585

Case No 2006/05550/B2

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CRIMINAL DIVISION)

ON APPEAL FROM THE CENTRAL CRIMINAL COURT

Her Honour Judge Goddard QC

T2005/7656

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 18/03/2008

Before

LORD JUSTICE DYSON

MR JUSTICE MADDISON

SIR RICHARD CURTIS

Between

RAppellant

NgyuenRespondent

(Transcript of the Handed Down Judgment of

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Edward Rees QC (instructed by Moss & Co) for Appellant

Simon Denison (instructed by CPS) for Respondent

Hearing Hearing dates: 26/02/2008

Judgment

Lord Justice Dyson, giving the judgment of the court:

Outline of the case

[1]On 2 October 2006 in the Central Criminal Court (Her Honour Judge Goddard QC), the appellant was convicted by majority verdict (10:2) of murder. He appeals against conviction by leave of the Full Court.

[2]On the night of 23/24 December 2005, the appellant and the deceased, Billy Gregory, were involved in an incident in the Earl of Chatham public house in Woolwich. The appellant struck the deceased in the side of the neck with a glass, causing him to bleed profusely. He died from his injuries the following day. The Crown case was that the appellant was under the influence of alcohol, became angry and deliberately used the glass as a weapon to cause injury. The defence was that the deceased had made threats, used racist language and then assaulted him, and that the appellant had acted in self-defence.

[3]On 7 December 2005, the appellant had been involved in an earlier incident at the Great Harry, another public house in Woolwich. On that occasion, he broke a glass and used it to cause injuries to 3 men. At an early stage of their case, the Crown applied for leave to adduce this incident as evidence of bad character under section 101(1)(d) of the Criminal Justice Act 2003 (“the CJA 2003”) on the basis that it was relevant to the question whether the appellant had a propensity to commit offences of the kind with which he was charged (section 103(1)(a)).

[4]The judge ruled that the evidence of the earlier incident could be admitted. The single ground of appeal is that the judge was wrong so to rule. Before we come to the ruling, we need to say more about the Crown case in relation to both incidents.

The Crown case in respect of the Earl of Chatham incident

[5]On the evening of 23 December, the Earl of Chatham was packed with people. At some point in the evening, the appellant and the deceased had an altercation, but there was no violence. About 40 minutes passed. The appellant and the deceased went separately to the lavatory. Neither knew the other was there. The appellant was standing holding a pint glass when the deceased walked in, also holding a pint glass. The lavatory is very small and several men were using it.

[6]According to the lavatory attendant, Jonathan Sampson, the deceased accidentally bumped into the appellant, knocking him off balance. The appellant responded angrily and the deceased said something back. The appellant then struck him with the glass that he was holding. It shattered and blood immediately gushed out. Mr Sampson did not agree with the suggestion put to him by counsel for the appellant that, moments beforehand, the deceased had been holding the glass near to the appellant’s face.

[7]Adrian Pryce was also inside the lavatory. He heard bickering and the appellant and the deceased fighting. He saw the appellant put a pint glass in the deceased’s neck. He did not hear any racist comments.

[8]Also in the lavatory was Dean Rogers. He said that he heard words being exchanged and a loud smack. It sounded like a gun and as if a great deal of force had been used. He saw the 2 men fighting.

[9]The appellant was arrested and he told a police officer that he had been in a fight and had been beaten up. He threatened a paramedic and continued to be aggressive at the hospital. In interview he refused to answer questions. He provided a prepared statement in which he said that he had been threatened and provoked by the deceased’s behaviour.

The Crown case in respect of the Great Harry incident

[10]On the evening of 7 December, there were 4 members of staff on duty at the Great Harry public house. These included Alan Munn and Philip Rogers. Among other persons present were Derek Rogers, Mark Jobbins, Timothy O’Sullivan and Thomas O’Shea. All of these witnesses gave evidence at the trial of the appellant. CCTV footage was also shown to the jury.

[11]Mr Jobbins described how the appellant became involved in an incident between some soldiers and Mr O’Sullivan and Mr O’Shea. Mr Jobbins could see no reason for the appellant becoming involved. The soldiers then moved out of the way and, according to Mr Jobbins, the appellant then “steamed into” Mr O’Sullivan and Mr O’Shea and put his hands up to one of them in a fighting stance. These 2 men then went to the bar. Mr Jobbins said that some time later, the 2 men and the appellant were near each other in the bar. Mr O’Sullivan reached to grab the appellant and Mr O’ Shea tried to keep them apart. Mr Jobbins then described how the appellant took a wine glass, smashed it and held the stem between two fingers of his right hand with the other arm ready to defend or attack. He did not see the scuffle that followed, and the next thing he saw was the appellant “flying through the air” until he hit the cigarette machine.

[12]Philip Rogers, the barman, said that the appellant picked up the wine glass and smashed it on the table. He then saw the appellant standing with the broken end of the glass in his fist, his arm by his side, taut and clenched up in an aggressive stance. The appellant took a swing at Mr Munn with the glass.

[13]Derek Rogers said that he saw the appellant with the stem of the glass between his fingers. He got behind the appellant and pulled him to the floor. Alan Munn spoke of the appellant swinging the glass at Mr O’Sullivan and Mr O’Shea who had been cut.

[14]Mr O’Sullivan and Mr O’Shea were not regarded by the Crown as reliable witnesses. This was because, contrary to what was apparent from the CCTV, they said that they had not gone over to attack the appellant at the start of the incident. But they were tendered for cross-examination at the request of the defence. They said that the appellant had broken the wine glass and jabbed Mr O’Sullivan with it in the head and neck. Mr Derek Rogers, Mr O’Sullivan and Mr O’Shea all suffered cuts from the broken glass. Mr O’Sullivan was the most seriously injured, requiring 14 stitches to his head wounds.

[15]We shall refer to the alleged assaults on these 3 men as “the Great Harry assaults”.

The decision not to prosecute for the Great Harry assaults

[16]On 7 December, Mr O’Sullivan was seen by the police. He said that he did not want to give any details of the offence but on 9 December he said that he did wish to press charges against the appellant. On 22 December, however, the CPS decided that no further action would be taken because there was insufficient evidence to proceed. It seems that Mr O’Sullivan did not attend appointments and the CPS decided that he was to be “discounted as a viable witness”. But matters did not rest there. Mr O’Sullivan was interviewed and made a statement on 8 January 2006. Apparently, he changed his mind after he learnt of the Earl of Chatham incident. A statement was taken from Mr O’Shea on 10 January. In the light of the evidence thus obtained, on 1 February 2006 the police arrested the appellant in respect of the Great Harry assaults.

[17]It is accepted by Mr Denison on behalf of the Crown that by February or March 2006, the Crown had sufficient material to prosecute the appellant for the Great Harry assaults. They decided not to do so, but rather chose to seek to rely on them in the murder proceedings as evidence that the appellant had a propensity to commit offences of the kind with which he was charged.

The application and the ruling

[18]The application was based on section 101(1)(d) and 103(1)(a) of the CJA 2003. That is to say that the bad character evidence was relevant to an important matter in issue between the appellant and the Crown, namely whether he had a propensity to commit offences of the kind with which he was charged. Mr Denison told that judge that, if the application were granted, he would not call Mr O’Sullivan or Mr O’Shea, since their denial that they had attacked the appellant was shown by CCTV footage to be untrue. Nevertheless, he would call the other witnesses. The Great Harry assaults were admissible because they were relevant to(i) whether the appellant had a propensity to commit offences of the kind with which he was charged and

(ii) whether he intended to kill Mr Gregory or cause him really serious bodily harm.

[19]The judge held that, although there were factual differences between the Great Harry assaults and the Earl of Chatham incident, what they had in common was that on each occasion the appellant had taken a glass in anger and used it as a weapon. She noted that the earlier incident was a single incident. But it was admissible because it showed a tendency to unusual behaviour and/or “its circumstances demonstrated probative force in relation to the offence charged”.

[20]The judge then considered the forensic history of the earlier incident to see whether admission of the evidence would be unfair. She referred to the submission made by Mr Rees QC (which has been repeated to this court) that the CJA 2003 was not meant to circumvent the public interest in having a trial. Moreover, if the jury were not sure about the case against him, the evidence of the Great Harry assaults would adversely colour their views. They would find it difficult, if not impossible, to know how to use this evidence. In acceding to the Crown’s application, the judge said:

“In my judgment, the prosecution were entitled to take the course they did as a matter of procedure but, if that course led to unfairness, their application would fail. In my judgment, it will not do so. The jury will have to be sure of the facts before they can use them, applying the criminal burden and standard of proof. I do not see that the directions to the jury will be so complicated that they cannot be followed. Juries do differentiate between counts and return different verdicts in other cases and there is no reason to think that there is room for prejudice.”

The summing up

[21]The jury heard a considerable amount of evidence about the Great Harry assaults, which the judge summarised in her summing-up in a way of which no complaint is made. Indeed, there is no complaint of any kind about the summing up.

[22]She gave the jury a careful direction as to the relevance of the Great Harry assaults in these terms: “You heard evidence that he has been accused before of using a glass as a weapon at the Great Harry public house on 7th December. It is important that you understand why you have heard this evidence and how you can use it. I have to and do emphasise that you must not convict him simply because he has been so accused before. You hear about it because it may help you to resolve an issue or issues between the prosecution and the defence, namely the question as to whether he has a propensity, or a tendency, deliberately to use a glass as a weapon, the question as to whether he has a propensity, or a tendency, to do so unlawfully - - that is not in necessary and reasonable self-defence - - and the question as to whether on 23rd/24th December his intention was to cause at least really serious bodily harm. First of all, you have to decide what happened in the Great Harry. There is no charge on the indictment so you will not be asked for a verdict. Nevertheless the prosecution have to make you sure of any fact before you can bring it into your consideration of the events of 23rd/24th December. The facts that the prosecution say are relevant are three, that on 7th December:(i) He deliberately broke a glass, intending to use it unlawfully as a weapon.

(ii) He used it with the intention of causing really serious bodily harm.

(iii) He used it unlawfully. If you are not sure of any of those facts, the events in the Great Harry are irrelevant to your deliberations on the charge of murder. If you are sure of those facts, how do you bring it into your deliberations? When you are considering your verdict on the charge of murder, you have to be sure that the prosecution have proved the elements in that charge, as I have directed you, before you can return a verdict of guilty. You cannot convict him only, or even mainly, on the basis of facts you find proved arising out of events on 7th December but, when you are considering whether the prosecution have proved murder, if the facts of 7th December make you sure that, bearing in mind it is only one incident, the defendant had a tendency deliberately and unlawfully to use a broken glass as a weapon, then you can consider whether that makes it more likely that he is guilty of murder. So such a tendency amounts to some additional evidence pointing to guilt but you must bear in mind that, even if he did have such a tendency, it does not necessarily prove that he committed this offence.” (i) He deliberately broke a glass, intending to use it unlawfully as a weapon. (ii) He used it with the intention of causing really serious bodily harm. (iii) He used it unlawfully.

[23]After the completion of the summing up, the jury sent a note in the following terms:

“Re the Great Harry. Should we not all be sure of the relevant facts? Can those jurors who are sure of the 3 relevant facts still take them into account in their deliberations on the charge of murder?”

The reference to the 3 relevant facts was to the 3 facts relating to the Great Harry assaults which the judge had mentioned in the passage which we have already quoted.

[24]In response to that question,

the judge directed the jury as follows:

“What is important is that you must be unanimous in your verdict. Before any verdict of guilty is returned, you must be sure that the ingredients of murder or manslaughter have been proved. In coming to that verdict, some may rely on some piece of evidence, others may attach importance to some other aspect of the evidence. In other words, you do not have to travel the same evidential route. Before any of you take the events of the Great Harry into account in your deliberations, you must be sure of all three relevant facts. Those of you who are sure of those relevant facts in the Great Harry are entitled to take it into account, bearing in mind that you cannot convict the defendant only or even mainly on events in the Great Harry. In my written directions to you, I have pointed out that, even if you are sure that there is a tendency to use a glass unlawfully, that does not necessarily prove that the defendant committed the offence of murder or manslaughter. Those of you who are not sure of the three relevant facts will not take it into account and, therefore, you do not all have to be agreed on the Great Harry. You all have to be sure of your verdict.”

The appellant’s submissions

[25]In summary, Mr Rees submits that the judge was wrong to rule as she did because the evidence of the Great Harry assaults(i) would have such an adverse effect on the fairness of the proceedings that it should not have been admitted: see section 101(3) of CJA 2003 and/or section 78 of PACE 1984; and

(ii) was not probative of and, therefore, not relevant to any matter in issue. Although Mr Rees addressed us principally on (i), it is logical to start with (ii), since if the evidence was not relevant, it could not be admitted and it is not necessary to consider whether it was unfair to admit it.

Relevance

[26]Mr Rees submits that, although the Great Harry assaults involved the use of a glass in a public house, the circumstances of the 2 incidents were otherwise so dissimilar that they were insufficient to establish a propensity or pattern. In particular, Mr Rees identifies the following distinguishing features between the 2 incidents. In the Great Harry assaults, the appellant was alleged to have persisted in actively seeking a confrontation with certain customers and to have picked up and broken a wine glass in order to use it as a weapon and his alleged use of the glass followed after 3 men had attacked him in an attempt to prevent him from using the glass against them. In the Earl of Chatham incident, the appellant had not been holding the glass as a weapon at the time of the initial physical contact in the lavatory and the alleged assault appears to have occurred by what Mr Rees describes as a “chance medley”: the deceased appears to have entered the lavatory by coincidence after the appellant had entered and the violence that ensued was a direct and spontaneous response to physical contact in a confined space.

[27]We remind ourselves that this court will not interfere with a judge’s judgment as to the capacity of prior events to establish propensity unless satisfied that the judge was plainly wrong: see R v Hanson

[2005] Cr App R 21

para 15. In our judgment, so far from being plainly wrong, we are satisfied that the judge was entitled, and indeed right, to decide that the Great Harry assaults were relevant to whether the appellant had a propensity to commit offences of the kind with which he was charged. As Mr Denison points out, there were common to the 2 incidents the fact that(i) they occurred only 18 days apart,

(ii) they both involved the alleged deliberate and unlawful use of a glass to cause really serious bodily harm with intent to do so, and

(iii) they both occurred when the appellant had been drinking alone in a public house and after he had become involved in an argument with the victim.

Unfairness

[28]Mr Rees QC places emphasis on the fact that the Crown made an informed and deliberate decision not to charge the appellant with the Great Harry assaults, but rather to rely on them as evidence of bad character in support of the alleged murder. He submits that there must be some limit to the Crown’s ability to introduce evidence of serious, untried offences as evidence of bad character under section 101(1)(d) of the CJA 2003. For reasons that we summarise below, Mr Rees submits that this limit was exceeded in this case.

[29]At the outset, however, we should record that Mr Rees makes 3 concessions. First, he accepts that, if the appellant had been charged and indicted for the Great Harry assaults, it would have been open to the Crown to apply to join the assault counts in the murder indictment. Secondly, he accepts that admissible bad character evidence is not confined to evidence of criminal convictions. This follows from the wide definition of a person’s bad character in section 98 as “evidence of, or of a disposition towards, misconduct on his part”. “Misconduct” is defined in section 112(1) as “the commission of an offence or other reprehensible behaviour”. In this case, the bad character evidence amounted to an allegation of the commission of an offence. The judge, therefore, rightly directed the jury that they should be satisfied to the criminal standard of proof that the appellant had committed the Great Harry assaults as a necessary (but not sufficient) condition of their relying on them as establishing propensity.

[30]Thirdly, Mr Rees accepts that the response given by the judge to the jury question was correct: see R v Kevin Brown

(1984) 79 Cr App R 115

. Any member of the jury, if sure of all 3 of the relevant facts identified by the judge (see para 22 above), could take the Great Harry assaults into account, even if other members of the jury felt unable to do so because they were unsure. As the judge put it, they did not all have to travel down the same evidential route. But by whatever evidential route they reached their verdict on the murder charge, at least 10 of them had to be sure of the appellant’s guilt before the jury could convict him of murder.

[31]There are 3 strands to Mr Rees’s argument on unfairness. First, Mr Rees submits that it is relevant to a consideration of fairness that the Crown made a deliberate decision not to prosecute the appellant for the Great Harry assaults. In this respect, the case is to be contrasted with cases where the Crown is prevented by order of the court from pursuing a prosecution. As he puts it in his skeleton argument, “if judges start to allow application in the absence of good reason for not prosecuting separately, they may set a dangerous norm in which prosecutors find it expedient to “prosecute” multiple criminal allegations in this way rather than by way of trial on indictment”. We should add that, in advancing this submission, Mr Rees expressly disavows any suggestion that the Crown did not act in good faith in making their decision.

[32]Secondly, he submits that the admission of evidence of the Great Harry assaults was unfair to the appellant, since it put him in a less advantageous position than that in which he would have been if he had been charged and tried for the assaults, whether in a separate previous trial or on a count or counts added to the murder indictment. Mr Rees argues, for example, that if the assaults had been the subject of a separate previous trial and the appellant had been acquitted, they could not subsequently have been relied on as evidence of propensity to commit an offence of the same kind as murder. Further, he says that the position would have been the same if some of the jurors had been sure of guilt of the assaults, but the jury as a whole could not agree on a verdict one way or the other. In both cases, it would have been necessary for the judge to direct the jury that none of them, even those who were sure of the appellant’s guilt of the Great Harry assaults, could take those assaults into account as evidence of propensity when considering the murder charge. That is because, as Mr Rees puts it, an acquittal by a jury is a finding that an offence has not been committed which no juror is entitled to disregard when considering another charge.

[33]Finally on fairness, Mr Rees submits that there is a real risk that the judge’s direction to the jury that, unless they were satisfied of the appellant’s guilt of the Great Harry assaults to the criminal standard of proof, they should disregard them, was likely to be ineffective. It was asking too much of a jury to expect them to apply this direction faithfully and conscientiously.

[34]We turn to the first strand of Mr Rees’s argument. Section 101(3) of the CJA 2003 provides that the court must not admit evidence under section 101(1)(d) if it appears to the court that the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it. The focus is, therefore, on the effect on the fairness of the proceedings of admitting the evidence. For reasons that we explain at paras 38 to 42 below, we reject the submission that a defendant is necessarily worse off if the evidence is admitted under section 101(1)(d) and is not made the subject of a prosecution and trial. If that is right and there is no suggestion of bad faith, then it seems to us that the reason why the Crown decides to adopt the section 101(1)(d) route rather than prosecute has little if any relevance.

[35]In R v Smith and other cases

[2005] EWCA Crim 3244

[2006] 2 Cr App R 4

, this court considered a case where a defendant was told that no further action would be taken against him in relation to certain alleged sexual offences. The Crown later started proceedings against the defendant which included the offences in respect of which they had said that no further action would be taken. The counts in respect of those offences were stayed as an abuse of process. The Crown then applied to adduce the evidence which would have supported the stayed counts. The judge granted the application under section 101(1)(d) of the 2003 Act. An appeal against the judge’s ruling was dismissed.

[36]In giving the judgment of the court, Scott Baker LJ said:

“77. The relevant underlying principle seems to us to be this. Prima facie all evidence that is relevant to the question whether the accused is guilty or innocent of the offence charged is admissible. In R. v Z [2000] 2 Cr.App.R. 281 it was accepted by the defendant that the evidence of the three complainants in respect of whose complaints he had been acquitted was relevant to the question whether he was guilty of the offence of rape with which he had been charged. The issue was not whether the defendant was guilty of having raped the three other complainants; he was not being put on trial again for those offences. The only issue was whether he was guilty of the fresh allegation of rape. Lord Hope of Craighead said at p.283 that the guiding principle was that prima facie all evidence which is relevant to the question whether the accused is guilty or innocent of the offence charged is admissible. He said that the objection to the admissibility of the evidence was based on Lord MacDermott’s statement in Sambasivam v Public Prosecutor, Federation of Malaya [1950] A.C. 458, 479 that the effect of the 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 of the adjudication. Lord Hope went on: “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 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 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.” 78. If evidence of previous allegations is in principle admissible notwithstanding that the accused was acquitted of charges based on those allegations in a previous trial, it is difficult to see why in principle evidence relating to allegations that have never been tried (i.e. because of a stay for abuse of process) should not be admissible. The defendant’s protection comes through the judge’s discretion under s.101(3) or, in an appropriate case, through s.78 of the Police and Criminal Act 1984. …” “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 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 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.”

[37]In our judgment, that reasoning applies with equal force to a situation where the Crown decides not to prosecute as it does to a situation where the Crown is prevented from prosecuting by order of the court. On the assumption that in both cases the bad character evidence is relevant, we can see no difference in principle between the two cases. If (as we have held) the judge was right to decide that the bad character evidence was relevant, then it was in principle admissible unless its admission would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it. We do not accept that the mere fact that the Crown chooses to rely on relevant bad character evidence which it decides not to make the subject of a criminal charge can of itself have such an adverse effect on the fairness of the proceedings that the court ought not to admit it. Something more is needed. The need for something more brings us to the second strand of Mr Rees’s argument.

[38]We accept that, if(i) the Great Harry assaults had been tried separately,

(ii) they had been tried before the murder trial and

(iii) the appellant had been acquitted of the assaults, it is unlikely that the assaults would have been left to the jury as potential evidence of propensity in relation to the charge of murder. In that event, the appellant would have been in a more advantageous position than that in which he was. But that comparative disadvantage is contingent on the three hypotheses we have identified. Moreover, the disadvantage also depends on the contingency that, where the assaults are not tried separately, some members of the jury are not sure of the defendant’s guilt of the assaults.

[39]What if he had been tried for the Great Harry assaults together with the murder and he had been acquitted of the assaults by a majority? Would those jurors who were sure of his guilt be allowed to rely on the evidence of the assaults as establishing a propensity when considering the murder charge? As we have said, Mr Rees concedes (rightly in our view) that the judge’s response to the jury question (para 24 above) was correct: the jury did not have to travel down the same evidential route. That answer was correct as regards taking into account the Great Harry assaults where they were not the subject of a prosecution. In a case where evidence of bad character is relied on as establishing propensity, we can see no logical basis for saying that it is material to the question of whether the jury can rely on the evidence for that purpose that it is the subject of a prosecution. In the present case, the jury could only convict the appellant of murder if they were sure that the elements of murder had been proved to the criminal standard of proof. What evidence led them to that conclusion if that was the conclusion they reached was a matter for them. They could take into account the Great Harry assaults only if they were sure of the 3 relevant facts to which the judge referred in her answer to the jury question.

[40]Mr Rees argues that, if the assaults had been joined as a count or counts on the murder indictment, an acquittal by the jury would be a finding that an offence had not been committed which no juror would be entitled to disregard when considering another charge. That justification finds support in the statement by Lord MacDermott in Sambasivam v Public Prosecutor, Federation of Malaya that a verdict of acquittal is binding and conclusive in all subsequent proceedings between the parties to the adjudication. But as was pointed out in the passage from R v Smith which we have set out at para 36 above, that statement was qualified by the House of Lords in R v Z. Those jurors who, being sure of a defendant’s guilt on count 1, rely on it as evidence of propensity to commit offences of the same kind as count 2, are not convicting the defendant on count 1. They are relying in part on the evidence of propensity to convict him on count 2.

[41]Let us suppose, however, that we are wrong to hold that an acquittal by a majority does not prevent dissenting jurors from taking into account their view of a defendant’s guilt on one charge as establishing his propensity to commit offences of the same kind as another charge. In our judgment, the possibility that a defendant might be worse off in this respect, if the evidence of bad character is admitted as was done in the present case rather than made the subject of a trial, does not of itself mean that the evidence should not be so admitted because it would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it. First, when the judge is asked to decide whether to admit evidence of bad character under section 101(1)(d) and 103(1)(a), he has no means of knowing what the jury are likely to decide. All he can say is that there is a possibility that some jurors may and others may not be satisfied of the defendant’s guilt of the misconduct which is relied on as evidence of propensity. As against that possible detriment to the defendant of admitting the evidence where there is no trial, there is to be weighed the benefit to the defendant of having to meet a bad character case based on evidence which, as in the present case, will not lead to a criminal charge. Mr Rees suggested that this was no real benefit to a defendant, but we do not see how that can be right.

[42]Quite apart from the impossibility of assessing the likelihood of the jury being split in relation to the other charge(s), the judge would be faced with the equally impossible task of weighing against that likelihood the benefit to the defendant of not facing criminal charges. In our judgment, such an assessment and weighing would be wholly artificial and unrealistic. We do not consider that Parliament can have had such an exercise in mind when enacting section 101(1). But if the approach of Mr Rees is right, it seems to us that this is precisely the kind of exercise that judges are required to perform. Our view that this cannot have been intended by Parliament reinforces us in our conclusion that the premise on which Mr Rees’s argument is based is wrong.

[43]Finally, we turn to the third strand of Mr Rees’s argument. We cannot accept that the direction given by the judge in this case was too much for the jury to apply faithfully and conscientiously. In our judgment, it was clear and should have been easily intelligible. They were told that they could not rely on the Great Harry assaults unless they were sure of the 3 relevant factors. There is no criticism of the judge’s summing up as to the elements of murder. In our view, there is no basis for any suggestion that any jurors may have applied a lesser standard of proof either in relation to the Great Harry assaults or the murder.

Conclusion

[44]For these reasons, we consider that this appeal must be dismissed.