| CRIME — Evidence — Character — Defendant’s bad character — Defendant charged with murder — Prosecution adducing evidence of defendant having committed similar assaults on earlier occasion — Whether prosecution’s decision not to prosecute earlier offences having adverse effect on fairness of proceedings making evidence inadmissible — Criminal Justice Act 2003, s 101(1)(d), 103(1)(a)
R v Ngyuen [2008] EWCA Crim 585; [2008] WLR (D) 94
CA: Dyson LJ, Maddison J and Sir Richard Curtis: 18 March 2008
The mere fact that the Crown chose to rely on bad character evidence which it had decided not to make the subject of a criminal charge could not of itself have such an adverse effect on the fairness of the proceedings that the court ought not to admit that evidence.
The Court of Appeal, Criminal Division, so held when dismissing an appeal by Thu Van Nguyen against his conviction on 2 October 2006 in the Central Criminal Court, before Judge Goddard QC and a jury, of murder.
DYSON LJ said, in the reserved judgment of the court, that the defendant had struck the deceased in the side of the neck with a glass, causing him to bleed profusely and to die the next day. Three weeks earlier the defendant had been involved in a similar incident when he had broken a glass and used it to cause injuries to three men. The Crown applied for leave to adduce evidence of the latter incident as evidence of bad character under s 101(1)(d) of the Criminal Justice Act 2003 on the basis that it was relevant to an important matter in issue between the defendant and the prosecution, i e the question whether the defendant had a propensity to commit offences of the kind with which he was charged (s 103(1)(a)). The judge ruled that the evidence of the earlier incident could be admitted and the defendant was convicted. On appeal it was submitted that she was wrong so to rule. It was argued that the Crown had made an informed and deliberate decision not to charge the defendant with the earlier assaults, but rather to rely on them as evidence of bad character in support of the alleged murder. It was submitted that there had to be some limit to the Crown’s ability to introduce evidence of serious, untried offences as evidence of bad character under s 101(1)(d). The admission of the previous assaults was unfair. If, for example, the assaults had been the subject of a separate previous trial and the defendant 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. In their Lordships’ judgment the judge had been right to decide that the bad character evidence was relevant so that in principle it was admissible unless its admission would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it. Their Lordships did not accept that the mere fact that the Crown chose to rely on relevant bad character evidence which it had decided not to make the subject of a criminal charge could, of itself, have such an adverse effect on the fairness of the proceedings that the court ought not to admit it. The premise on which the appeal was based was wrong. Accordingly, the appeal would be dismissed.
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