Issue Estoppel and Similar Facts

Criminal Law Quarterly, Vol. 53, p. 382, 2008

16 Pages Posted: 22 Aug 2010

See all articles by Hamish Stewart

Hamish Stewart

University of Toronto - Faculty of Law

Date Written: 2008


On the trial of the accused for an offence, can the Crown lead evidence tending to show that the accused is guilty of a different offence of which he was previously acquitted? The author argues that although the rules of evidence do not bar this form of proof, under some circumstances the doctrine of issue estoppel should bar it. There are at least three reasons why issue estoppel should apply in criminal proceedings: 1) the accused should be able to rely on the acquittal to prevent the Crown from re-alleging the offence, 2) using a prior acquittal as similar fact evidence involves inconsistent verdicts, 3) issue estoppel is a way of avoiding abuse of process. If the probative value of the evidence derives from a fact that was previously decided in the accused’s favour, the evidence should be inadmissible. However, if a subsequent proceeding involves accepting, rather than challenging, the outcome of an earlier proceeding, the evidence should be admissible. Moreover, issue estoppel should apply only where the accused was acquitted on the merits, not where the prior proceedings were judicially stayed.

Keywords: criminal proceeding, issue estoppel, similar facts, probative value, evidence, Ollis exception

Suggested Citation

Stewart, Hamish, Issue Estoppel and Similar Facts (2008). Criminal Law Quarterly, Vol. 53, p. 382, 2008, Available at SSRN:

Hamish Stewart (Contact Author)

University of Toronto - Faculty of Law ( email )

78 and 84 Queen's Park
Toronto, Ontario M5S 2C5

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