Mackay, R. v

Where separate allegations are tried together without reliance on similar-fact evidence, the jury must be clearly directed to decide each count separately and not use one complainant’s evidence as proof of another allegation. A direction may nevertheless permit the jury to assess a defendant’s credibility across the evidence as a whole. A conviction based on a witness with serious inconsistencies will remain safe where the trial judge was entitled to conclude that a properly directed jury could convict.

The appellant pleaded guilty to criminal damage and was convicted after trial of unlawful wounding arising from an attack on Christopher Wootton, and wounding with intent arising from a separate attack on Leighton Goobie. He received imprisonment for public protection.

His appeal challenged the refusal to stop the first count at the close of the prosecution case, because Wootton was an unreliable witness, and challenged the jury direction following the joint trial of the two wounding counts. The central issue was whether the evidence and directions left the convictions unsafe.

1. Appeal dismissed. The trial judge was entitled to leave the first count to the jury. Wootton was an unsatisfactory witness and had made serious inconsistent statements, including an initial denial of numerous previous convictions. However, he was undoubtedly attacked and remained consistent about the attack itself. The assessment whether his evidence was unreliable or fabricated was for the judge and, ultimately, for a properly directed jury.
2. The direction on the jointly tried counts adequately prevented impermissible cross-use of the complainants’ evidence. The court applied the safeguard identified in Dye [2003] EWCA Crim 2424: absent reliance on similar-fact evidence, the jury must be directed to treat each allegation separately and not regard evidence on one as proof of the other.
3. The judge expressly directed separate consideration of each defendant and each count, and stated that evidence on one count must not be used when deciding the other. The structure of the summing-up reinforced that direction. There was therefore no real risk that either complainant’s evidence had been used to bolster the other’s allegation.
4. The jury could still assess the appellant’s credibility holistically because he gave evidence about both incidents. That legitimate general assessment did not make the complainants’ evidence cross-admissible. The convictions were safe.

• Court of Appeal (Criminal Division): appeal against convictions for unlawful wounding and wounding with intent dismissed in [2010] EWCA Crim 167.
• Crown Court: the appellant was convicted following trial and sentenced on 21 October 2008. No citation for the Crown Court decision was stated.