R v Victor Marke

Evidence from separate complainants in a sexual-offence case may be cross-admissible where, after proper directions, the jury can safely exclude collusion or contamination. The trial judge need not first be satisfied to the criminal standard that those risks have been excluded. The issue ordinarily belongs to the jury, although the judge must withhold it where the risk is too great for a jury to resolve safely. Once contamination is excluded, broadly similar allegations may be mutually probative. Section 107 of the Criminal Justice Act 2003 does not require the judge to make a positive finding on contamination when determining the bad-character application.

The applicant was convicted at the Crown Court at Nottingham of eighteen sexual offences against two complainants and sentenced to 14 years’ imprisonment. He renewed his application for leave to appeal against conviction, arguing that the trial judge had wrongly permitted each complainant’s evidence to be cross-admissible against the other. The principal issues were whether the judge had to determine collusion or contamination before leaving the matter to the jury, and whether cross-admissibility improperly bolstered the allegations of the second complainant.

1. Disposition. The renewed application for leave to appeal against conviction was dismissed.
2. In R v Chopra [2007] 1 Crim App Rep 16, the court had upheld cross-admissibility of allegations of sexual abuse made by separate complainants where the jury accepted the evidence and could safely exclude collusion and contamination. That principle did not require the trial judge to be satisfied to the criminal standard that those possibilities had already been excluded.
3. The question of collusion or contamination was ordinarily for a properly directed jury. There could be cases where the risk was so substantial that the judge should not leave the issue to the jury. In this case, the jury was entitled on the evidence to conclude that there had been no collusion or contamination.
4. The Criminal Justice Act 2003 did not impose an obligation on the judge, when determining the bad-character application, to make a positive finding as to contamination. No application had been made to stop the case under section 107. The judge had nevertheless identified the relevant evidence, including the message on the first complainant’s phone, and had directed the jury properly.
5. Once contamination was excluded, the allegations were logically probative of each other. It was inherently unlikely that two separate complainants would independently invent broadly similar allegations, and proof that the applicant had behaved in the alleged way towards one complainant made it more likely that he had behaved similarly towards the other. The cross-admissibility was therefore not an impermissible attempt to bolster a weak prosecution.

• Court of Appeal (Criminal Division): under [2023] EWCA Crim 505, dismissed the renewed application for leave to appeal against conviction.
• Single judge: refused the initial application for leave to appeal.
• Crown Court at Nottingham: convicted the applicant of eighteen sexual offences and sentenced him to 14 years’ imprisonment.