McKenzie, R. v

Similar-fact evidence may be used mutually to support separate counts where the jury are sure that the similarities show that the offences were committed by the same person. The law does not require a guilty verdict on one count before that principle can operate. If the similarities carry no weight, each count must be decided separately.

A conviction is not unsafe merely because judicial questioning or a summing-up contains unfortunate features. The appellate court assesses the trial as a whole and asks whether there was a real possibility that the jury were prejudicially influenced or that the identified issues were not properly left to them.

The appellant was convicted at Snaresbrook Crown Court of two counts of indecent assault on different complainants and one count of threatening to kill. The second complainant's account identified the appellant, while the first count depended substantially on identification evidence and the similarities between the two alleged assaults.

There had been an earlier trial on Counts 2 and 3 at which the jury failed to agree; Count 1 had then been severed. On appeal against conviction, the appellant challenged the use of screens for the second complainant, the judge's questioning of him, the fairness of the summing-up, and the similar-fact direction. The central issue was whether, cumulatively, those matters rendered the convictions unsafe.

1. Appeal dismissed. The court was satisfied that the convictions were safe, including when the alleged defects were considered cumulatively.

2. The trial judge was entitled to permit the second complainant to give evidence from behind screens. She did not wish to look at the appellant and feared that he might identify and later find her. In those circumstances, the exercise of discretion did not justify granting renewed leave to appeal.

3. Some of the judge's questioning of the appellant, particularly on self-inflicted injuries and his asserted alibi, received more attention than it deserved and was at times sarcastic. That was unfortunate. However, it did not affect the fairness of this eleven-day trial or create a real possibility that the jury were prejudicially influenced. Re-examination had effectively neutralised any adverse effect concerning the alibi evidence, and the matters were not central to the case.

4. The summing-up sufficiently identified the evidence, the defence challenges, and the issues for the jury. Although some comments favoured the prosecution and one comment about defence counsel was better omitted, the judge repeatedly made clear that factual matters were for the jury. The alleged omissions and modest assumptions did not affect the jury's consideration of the central issues.

5. The similar-fact direction could have more clearly stated the preliminary findings required before evidence from one count was used on another. Nevertheless, the law did not require a guilty verdict on one count before the similar-fact principle could operate. There was persuasive evidence on both counts and the jury had been fully directed on the distinct issues. They could use one count to support the other only if sure that the similarities showed offences committed by the same man; otherwise, they were to decide each count separately.

• Court of Appeal (Criminal Division): Dismissed the appeal against conviction and refused the renewed application concerning screens: [2003] EWCA Crim 2749.
• Snaresbrook Crown Court: The appellant was convicted by a jury on two counts of indecent assault and one count of threatening to kill. An earlier trial on Counts 2 and 3 had not produced verdicts; Count 1 had been severed on that occasion.