McKenzie, R. v [2003] EWCA Crim 2749

Case No 2002/05002/D2[2003] EWCA Crim 2749
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM HIS HONOUR JUDGE CHARLES Q.C.
AT SNARESBROOK CROWN COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 16 th October 2003
Before
LORD JUSTICE PILLMR JUSTICE ROYCETHE RECORDER OF CHESTER
Between
THE QUEENRespondentJOHN McKENZIEAppellant
Miss E Edhem for AppellantC.Ward-Jackson - for RespondentHearing Hearing dates : 3 RD OCTOBER 2003
JUDGMENT

Lord Justice Pill:

[1]On 25 April 2002 in the Crown Court at Snaresbrook before His Honour Judge Charles QC and a jury John McKenzie was convicted on two counts of indecent assault on a female (Counts 1 and 2) and one count of threatening to kill (Count 3). On 8 May he was sentenced to three years imprisonment on Count 1, eight years concurrent on Count 2 with an extended licence period of two years and four years concurrent on Count 3. He appeals against conviction by leave of the single judge on eight grounds and he renews an application for leave on a further ground. There had been a previous trial on Counts 2 and 3, Count 1 having been severed on that occasion. The jury were unable to reach a verdict. The alleged threat to kill in Count 3 was against the complainant of indecent assault on Count 2 and was a part of the events surrounding the alleged indecent assault.[2]Both the alleged sexual assaults occurred near the same block of flats, the Samuel Lewis Estate, in North London. Both occurred at about midnight on a Friday night, the two dates being exactly a month apart. Both victims were young professional women returning home after a night out and walking alone along quiet streets. Both women alleged that they were attacked from behind, that a hand was placed over the mouth and that there was a threat with a knife. In neither case was a knife in fact produced. Both women alleged that the attacker was a male wearing a woolly hat.[3]On Count 1, it could not be challenged that there was an incident involving the complainant and a man at the time and place alleged. The Appellant denied that the man was him. What happened between the complainant and the man was also challenged.[4]In Counts 2 and 3, an incident involving the complainant on those counts and the appellant at the relevant time and place was admitted. The defence was that the complainant consented to such as occurred between them and also that far less occurred than the complainant alleged. A strong feature of the prosecution case on Count 1 was, in circumstances where presence was denied, that the appellant had been picked out by two witnesses on identification parades. A potential weakness was that the description by Mr. C. O’Leary of what he saw was distinctly different from that of the complainant[5]Grounds of appeal relate to the judge’s conduct of the trial, including his summing up which is claimed to be fundamentally unbalanced. It is not disputed that the judge was entitled to permit the joinder of Counts 1,2 and 3 and it is not disputed that the judge was entitled to give a similar fact direction. It is, however, submitted that the direction given was defective. COUNT 1[6]Miss W. had spent the evening of Friday 16 February with friends in Central London and arrived back at Highbury and Islington tube station at about midnight. In a quiet street, she became aware of a man behind her and she had a brief glimpse of him. He grabbed her from behind, putting one hand over her mouth and holding her around the body with his other hand. He said " Don’t scream. I’ve got a knife. I’ll kill you ". She thought his accent was Scottish or Irish and not English. She struggled and managed to get away and hold onto railings but the man persisted and repeated his threats. She offered him her bag but he did not want it.[7]The man forced the complainant to her knees so that she was lying face down on the ground. This was at the bottom of the steps which formed an entrance to the flats constituting the Samuel Lewis Estate. He lay on top of her and put his hand over her genital area on top of her skirt. She thought he was trying to rape her and screamed as loudly as she could. A man, Mr. O’Leary, called from a flat "What are you doing ? Get off her" and the man ran away.[8]Mr.C. O’Leary told the complainant to come up to his flat and she told him and his wife briefly what had happened. She was very shaken. The police were called and the description they recorded included "about 40, male, white, 5’7", grey hair, long sideboards, Scottish accent". She did not remember describing him to the police. On 27 April, the complainant attended an identification parade and picked out the appellant as the man who had assaulted her. She picked him out immediately and said she recognised him by his face.[9]Mr. O’Leary said that he heard what sounded like a muffled shout for help by a woman. He looked out and saw a man standing at the top of the 3 steps that lead into the flats with his back to the flats and his arms outstretched. He seemed to be blocking the way of the woman who was trying to get into the flats. At first he assumed that it was an attempted robbery but when he shouted and the man, not seeing anyone, tried to pull the woman towards him rather than take the bag, he stopped thinking it was a robbery. He shouted "What the f…… are you doing ? ". The man looked up and Mr.O’Leary said he had a good look at him. He repeated his question and the man said " I’m doing nothing mate" but he let go of the woman and ran off. The witness gave a description of the man he saw. He thought he was wearing a baseball cap but was concentrating on his face.[10]Mr.O’Leary said he did not see the complainant on the ground with the man lying on top of her. He said that the complainant was in a terrible state when she went to the lavatory. He heard her vomiting. At an identification parade on 27 April, Mr.O’Leary picked out the appellant. On the night, he had seen the man for up to 1½ or 2 minutes.[11]Mr.O’Leary’s account of events, as recorded in his police statement, was read to the complainant when she was giving evidence. She said that it did not accord with the way she remembered the incident. COUNTS 2 & 3[12]Mr. D. O’Leary (no relation to the witness in Count 1) was Miss P’s boyfriend and lived with her on the Samuel Lewis Estate. On the evening of Friday 16 March they had a meal together in a restaurant in Islington. They then had an argument and she threw her ice-cream at him and stormed out of the restaurant. That was at about 12:20am to 12:25am on the Saturday morning. He persisted in that timing when it was properly put to him that at the previous trial he had said that she had left at about 10:30pm to 10:45pm. He left after the restaurant closed, which was at midnight. Miss P had been drunk when she left but not to the extent of not knowing what she was doing. She suffered from depression which could be very bad at times and she could be irrational and cry hysterically.[13]Miss P also said that she had a disagreement with her boyfriend, threw ice-cream at him and stormed out of the restaurant to walk home. She thought it was at midnight or 12:15am and agreed that at the first trial she said that it was at about 11pm. She did not accept that she was drunk but there was an admission that her blood alcohol level was sufficient to cause slight drunkenness to drunkenness in a social drinker. Her depression made her extremely unhappy but did not cause her to behave irrationally or in an uninhibited way.[14]Miss P said that as she approached the estate, someone came up behind her and put a hand over her mouth and an arm around her waist, holding her tightly. She was unable to turn to see who it was. He pushed her along the road and through a small gate into a small garden area near the entrance to the estate. She was forced to the ground, on her back, the ground felt wet and cold and she felt mud in her hair and on her neck. The man was on top of her with his hand over her mouth. She tried to struggle. Each time she screamed he put his hand back saying " I’ve got a knife. I’ll use it. I’ll kill you if you don’t shut up and stop screaming".[15]The complainant said that the man’s attitude then changed. He said he was not going to hurt her and "all I want you to do is to wank me off". He had taken his trousers down and his penis was not erect. She said "Please don’t hurt me, I am having a period". He held her hand and put it on his penis, which was now erect, and forced her to masturbate him. When she continued to struggle, he put his hand back over her mouth and throat. He put his tongue in her mouth and his hand on her breast inside her shirt and bra. She pulled off the dark woolly hat he was wearing and clawed with her hands trying to fight him off.[16]Two men appeared and asked what was going on. Her attacker jumped up. She was shaking, crying and hysterical and was afraid that the three men were acting together but one of the men who had arrived said they had called the police. Her attacker said "It’s alright. I met her down the road". She screamed "No you didn’t. You dragged me here". She told the men not to let him get away and shortly afterwards the police arrived and the man, who was admittedly the appellant, was arrested.[17]At the police station, the complainant was medically examined and nail clippings and a blood sample were taken from her. At 3:45am, Dr.Murphy found small cuts below her left eye, to the left-hand side of her nose and just below the left nostril and the right up lip was swollen with a small cut on the inside. There was a small cut on the right thumb. DNA matching than of the appellant was found in the cellular deposits under the complainant’s nail clippings.[18]When she later gave a statement to the police, the complainant told the officer that she had a bump on the back of her head, a sore neck and bruising on her lower back, thighs and legs although she was not aware of these matters until some time after the incident. She was examined by another doctor on 19 March. He found two areas of swelling on the back left side of the scalp, tenderness on both sides of the neck on the angle of the jaw, a faint bruise on the left lower shin and a small swelling on the right rear part of the mid-chest and tenderness on the right upper chest. The bruises and swellings were recent and could have taken a few hours to appear.[19]Mr. and Mrs. R. Clements live in a flat on the Samuel Lewis Estate and described hearing a woman screaming and shouting from the yard below. Mr. Clements’ son telephoned the police and, because the screaming and shouting continued, they went down. Mr. Clements asked what was going on and a man jumped up and turned towards him zipping up his jeans. The woman also jumped up, was very hysterical and was saying "Don’t let him get away. He has dragged me in here. He made me touch his dick". The man said "I’m not going anywhere" and "She met me half way".[20]Mr. Simon Clements gave similar evidence. When he and his father went down he saw two people lying beyond the kerb, a woman on her back and a man face down on top of her. When he got up, the man was zipping up his flies and the woman was hysterical.[21]Mrs. Clements heard a woman screaming. She sounded in terrible distress saying "I can’t breath" and "Please, please please" and "Don’t hurt me". Mrs.Clements joined her husband and son downstairs. The complainant was very distressed, shaking and a little dishevelled. PC O’Brien said that when he arrived shortly after 12:40am the complainant was very, very upset. She was shaking, her hair was dishevelled, her jacket open and her blouse undone. PC Farrell said that, as the officers approached the scene, the complainant said "He attacked me" and the appellant said "It’s me she’s talking about". The appellant said " I met her down the road. She had an argument with her boyfriend and was upset. We walked up here and just started kissing and stuff. Then she started screaming. I ain’t done nothing, so I waited for you lot". He was very calm and seemed happy to help the police. He was arrested on suspicion of rape.[22]PC Stevens arrived soon after the other officers and said that the complainant was shaking, sobbing and extremely distressed. Another officer found, on an area of earth in a small courtyard, a black woollen hat and also a ring which the complainant identified as one she had lost. At interview, the appellant said that he had met the complainant who was upset about having had an argument with her boyfriend. They sat down and he kissed her. He then touched her breast but she objected to that. Nothing else happened. He agreed that the black woollen was his. He was also interviewed about the earlier incident. Evidence for the Defence[23]In his evidence, the appellant said that he had been homeless since November 2000. On the 16 March he went to St.Martin-in-the-Fields, then to the Strand, and then to Euston station where he sat on the grass in front of the station and shared cans of larger with other homeless friends. The hostel near Kings Cross was full and the appellant started walking to a hostel in North London where he had stayed before. He saw Miss P coming towards him and noticed that she was crying. Being the sort of person who talked to people, he asked what was wrong. She said that she had had an argument with her boyfriend and had thrown ice-cream at him. The appellant said he had nothing to do so would talk to her and she agreed.[24]They walked to the Samuel Lewis Estate and went in through the gates. At Miss P’s suggestion they went through the small gate to the left and sat on the concrete wall. She was still crying and upset. They talked and he moved closer and put his arm around her to comfort her. She looked at him and he kissed her on the lips. She kissed him back and he put his tongue into her mouth. She carried on kissing him and was stroking his left cheek with her right hand. He put his hand inside her shirt, which was open, on top of her breast. She did not say anything and he thought "I am in here. I’ve found someone". After 10 or 15 seconds she started screaming and waved her arms above her head. He asked what was wrong and she said she could not breath and started screaming again. He was shocked and did not know what he had done wrong.[25]Two men arrived and asked what was going on. He said that everything was alright and adjusted his trousers but the zip was not undone and his hands were not near it. Miss P had got up and said that he had raped her. He was numb and shocked. He totally denied her allegations. He had nothing wrong and stayed to wait for the police. He told an officer he had done nothing wrong and that he had met Miss P half way, meaning up the road. When he was told he was being arrested on suspicion of rape, he could not believe it and was numb.[26]As to Count 1, the appellent said that it was not he who had assaulted Miss W. On 14 February he had met Sharon Flatman in the Strand. They bought each other Valentine Cards and were together for the next three days. They spent the night of 15/16 February in a doorway of a camera shop in The Strand and were together during the day on 16 February. They then went to her flat in Battersea where he slept on a settee. The next morning her former boyfriend arrived.[27]As to his appearance, he had never had sideburns and shaved off such patches of hair as he had on his head about four times a week. His hair was black at the time. At the relevant time he had three front teeth missing.[28]Miss Flatman agreed that she had met the appellant at a day centre on 13 or 14 February and on 14 February he had given her a Valentine Card. They were together for about two hours and then she went home. On 15 February she stayed at home all day but on the evening of 16 February met the appellant outside McDonalds in The Strand. She invited him back to her flat where he fell asleep on the bed. The next morning her former boyfriend came to collect his belongings. She had considered herself to be the appellant’s girlfriend and visited him every week after his arrest. She had spent one night with him on the pavement but could not remember which night it was. SCREENS[29]The renewed application is based on the judge’s ruling that, when she was giving evidence, Miss P could be screened from the appellant. Miss P did not want to look at the appellant and also was afraid that the appellant would be able to identify her if he saw her and to find her later. It is submitted that the appellant should have enjoyed the right to see Miss P if she gave evidence against him and that the presence of screens was prejudicial in the eyes of the jury. The courtroom could have been arranged so that Miss P did not have to look at the appellant.[30]In our judgment, the judge was in the circumstances of this case entitled to exercise his discretion in favour of screening the witness. The application is refused. QUESTIONS BY JUDGE[31]In relation to the conduct of the trial, it is submitted that the judge wrongly entered the arena in cross-examining the appellant at length, following questioning by counsel, especially having regard to the topics on which he questioned the appellant and the way in which he did it. The questioning occupies twelve pages of transcript. Three issues were considered, first, self- inflicted facial wounds at the police station, the matter the prosecution had agreed not to pursue. The second issue was, in relation to Counts 2 and 3, the length of time between the appellant meeting Miss P and when the kissing began. The third issue was in relation to Count 1 and to the defence of alibi. The appellant was asked in detail about the settee upon which the appellant claimed to have spent the night of 15/16 February.[32]As to the second of those issues, we consider that the judge was entitled to seek elucidation and it is not surprising that he did. The complainant’s affectionate behaviour, on the appellant’s account, occurred very soon after she had met a complete stranger on the streets.[33]It is doubtful whether issues 1 and 3 deserved the attention given to them by the judge in his questioning. Moreover, some of the questioning was conducted in a somewhat sarcastic way, which was unfortunate. However, in the context of the trial as a whole, including the content of the summing up, we are far from persuaded that the questioning of the appellant by the judge affects the fairness of the trial or the safety of the jury’s verdict. In any event, skilful re-examination by Ms. Edhem effectively neutralised any adverse effect of questions about the settee. In a trial lasting eleven days, with a very full summing-up, it is not a real possibility that the jury were prejudicially influenced by the judge’s questions on issues which were not central to the case. THE SUMMING-UP[34]The judge summed up in considerable detail. On more than one occasion he directed the jury that issues of fact were for them and that, if they saw fit, they should ignore any opinions he expressed. The judge referred to the appellant’s apparently limited education and that the jury should make allowances for his apparently limited vocabulary and facility with words. The judge summarised in detail the appellant’s evidence and that of Ms.Flatman. He gave an appropriate direction upon identification in Count 1 and said that he would not have permitted Count 1 to go to the jury if the only evidence of identification had been that of the complainant. He gave a detailed account of the identification parades, including the suggestion that, following her identification, the complainant gave information to Mr. O’Leary.[35]The jury were reminded in some detail of the cross-examination of prosecution witnesses. While there were undoubtedly comments favourable to the prosecution, there were some, albeit fewer, favourable to the defence, underlining that features which might have been expected to be seen by more than one witness were only seen by one witness. We do not accept the submission that there was a general unfairness about the summing up which affects the safety of the verdicts. The judge’s comment that defence counsel had a "flair for description", whether true or untrue, was better not made in the context it was but cannot possibly have influenced the jury’s deliberations.[36]For the appellant, Miss Edhem has properly drawn attention to the inconsistencies in the prosecution case, as between Miss W and Mr.O’Leary, as between descriptions of the man involved with Miss W and the appellant and, for example, the absence of any reference by the eye-witnesses to the appellant’s loss of teeth. In relation to Counts 2 and 3, emphasis is placed on the differing descriptions of the injuries to Miss P and to the limited supporting evidence, it is submitted, of a struggle on muddy ground. There were differences in the circumstances surrounding the two sets of events, such as the use of a secluded place in Count 2 but not in Count 1, and these were not sufficiently brought to the jury’s attention, it is submitted.[37]In our judgment the judge sufficiently summarised the evidence in the case for the jury to be able to consider it and its effect. On those few occasions when the judge made assumptions they were modest and not such as to affect the jury’s consideration of the central issues. The evidence, in both incidents, of the complainant’s condition and distress was properly brought to the attention of the jury as a part of the relevant circumstances. The screaming of Miss P began when no one else was present and was sufficiently persistent to lead Mr.Clements and his son to go downstairs. A consideration of the reactions of Miss P and of the appellant when others arrived on the scene was relevant to the issue of what had gone before. The appellant’s case that the complainant behaved as she did, and out of character, because of the upset with her boyfriend, was before the jury. The summing-up is not defective for want of a further direction. SIMILAR FACTS[38]The judge began his direction on similar facts by posing the question whether, or Count 1, there was anything other than the identification by Mr. C. O’Leary that was capable of supporting Miss W’s identification of the appellant. The judge referred in detail to the similarities between the evidence in Count 1 and Count 2, both those which could not be disputed and those which were in dispute. The judge continued:
"What effect do those circumstances have upon you ? Do you find that they are so similar and so close that you feel that they must be the result of a series of similar offences committed by the same person ? The prosecution says they acquire the status of a signature, that that is how the prosecution says this man looks for, finds and attacks lone women. The two scenes are a matter of a few hundred yards apart. They are both on the same nights and at approximately the same time"
[39]The judge then referred to the defence case that the similarities were or may be by way of coincidence. That was appropriate though it would have been better to avoid the somewhat sarcastic reference to the way defence counsel had put it. The judge then stated that, if the jury rejected that explanation, they were entitled to use the "known identity of Miss P’s assailant, namely, this defendant ….. to support the identification of this man on 27 April". The judge added the proviso that they could take that course only if "O’Leary’s identification was not a result of collusion between Miss W and himself".[40]That, in our judgment, was a legitimate exercise. This was a case in which the similar fact principle could apply. Moreover, it would be a legitimate approach, as Miss Edhem accepts, to consider Count 1 first and, if they found it proved, the jury were entitled to have regard to the similarity of facts and circumstances between Count 1 and Count 2 in considering whether the complainant in Count 2 consented.[41]The submission is that the jury were given insufficient guidance as to how to approach this question. Moreover, there is a circularity in the way

the judge put it:

"So, acting without her consent, as Miss Powell said was the case. The man picked up by Miss W, unknown by Miss Powell, of course, because it had occurred later on. The lack of consent shown in Miss W’s experience, you can use to support what Miss Powell says was her lack of consent to what happened to her and that is what I say, members of the jury, about identification"
It is only when facts have been found by the jury, either, and not withstanding the equivocal evidence of Mr.C. O’Leary, that there was an indecent assault in Count 1 or, that there was no consent in Count 2, that the similar fact principle comes into operation. The danger, in the circumstances of this case, is that the jury cross-referenced the circumstances without first making the preliminary findings which made that possible.[42]While we see force in that point and the summing up could have been clearer, it does not in our judgment raise doubts about the safety of the verdicts. We make the preliminary point that where, as in the present case, there is persuasive evidence both of identification and of indecent assault on both counts, the law does not require a guilty verdict on one count before the similar fact principle can come into operation.[43]This was a case in which there was a real issue as to identification on Count 1 and as to indecent assault on Count 2 (with which, it is common ground, Count 3 stands or falls). The issues on both counts were fully brought to the attention of the jury in the summing up. Before giving the similar fact direction,

the judge dealt in detail with the identification evidence on Count 1 and also stated:

"Mr.O’Leary never saw an assault, let alone an indecent one. Miss W said: "
Yes, it occurred and he was on my back when O’Leary called out. Something O’Leary did not see." "[44]That notwithstanding, the evidence on each count was strong; identification by two witnesses at identification parades on Count 1, together with a coherent account from the complainant and evidence, including persuasive circumstantial evidence, on Count 2 where identity was not in issue. That there were issues and what they were was plainly brought to the attention of the jury on each count. Moreover, there were important similar facts which could not be disputed, though others, such as the sexual aggression, could be and were.[45]In the circumstances, it is not in our judgment a real possibility either that the jury failed to appreciate what the issues were or that, if they did have regard to the similarity of facts and of circumstances, they failed to make an assessment of the reliability of one of the complainants on points at issue (such as the sexual aggression) before applying the similar fact principle. We see no risk that the jury merely assumed that all the similarities were present and made findings of guilt on that basis alone.

The judge concluded his summing-up on this aspect of the case by stating:

"If you find that the similarity to the two cases carries no weight, then just consider each count separately and do not use the evidence from one count in deciding the other, decide each separately, but if you are sure that they are of such similarity that cause you to say that the two offences must have been committed by the same man, then you can use the one to support the other and vice versa as I have explained. "
In context, that was an accurate and sufficient way in which to complete the direction. CONCLUSION[47]We are satisfied about the safety of these verdicts. In reaching that conclusion, we bear in mind the alleged cumulative effect of the points made on behalf of the appellant. The appeal is dismissed.