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COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM HIS HONOUR JUDGE CHARLES Q.C.
AT SNARESBROOK CROWN COURT
Strand, London, WC2A 2LL |
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B e f o r e :
MR JUSTICE ROYCE
and
THE RECORDER OF CHESTER
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THE QUEEN |
Respondent |
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- and - |
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JOHN McKENZIE |
Appellant |
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C.Ward-Jackson - for the Respondent
Hearing dates : 3RD OCTOBER 2003
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Crown Copyright ©
COUNT 1
COUNTS 2 & 3
Evidence for the Defence
SCREENS
QUESTIONS BY JUDGE
THE SUMMING-UP
SIMILAR FACTS
"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"
"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.
"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." "
"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