Mackay, R. v

1. LORD JUSTICE PILL: Having previously pleaded guilty to a charge of criminal damage, Christopher Mackay, on 23rd September 2008, was convicted of an offence of unlawful wounding (count 1) and, following a separate incident, a count of wounding with intent (count 2). Count 1 was an alternative to the charge put of wounding with intent. On 21st October 2008 he was sentenced by His Honour Judge Rennie, who had also conducted the trial with a jury, on count 3 to imprisonment for public protection with a minimum term of five and a half years, less 249 days spent in custody on remand. (There had been a re-numbering of counts.) A co-accused, George Mackay, was convicted of wounding with intent. He was sentenced to seven years' imprisonment.

2. Mr Mackay appeals against conviction by leave of the single judge. Leave is limited to one ground: four grounds were put forward, three were refused. There is a renewed application for leave in relation to one of those grounds.

3. Count 1. In the early hours of the morning on 17th January 2008, Christopher Wootton was allegedly assaulted with a sharp object in his own home. The appellant admitted presence there, but denied being involved in the assault. Treated in hospital, Wootton was found to have sustained multiple cuts to his left hand, one of which required stitching. There was a long cut to his forehead and that was put together with glue. There were small cuts to the back of his head and cuts to the back of his thigh. Those cuts did not require treatment.

4. Count 2. On 13th February 2008 Leighton Goobie was involved with the appellant and the co-accused outside a block of flats. In the course of the altercation Goobie suffered a knife wound. The appellant and the co-accused were arrested on the same day. In their flat where they were hiding, recovered from the bathroom were two knives, one of which had blood on the blade matching the DNA of Goobie. At an identification parade Goobie picked out the appellant and the co-accused as the two men who had attacked him.

5. The defence case on count 1 was that the injuries must have been caused by someone else. On count 2 his case was that he himself was assaulted by Goobie. He did not injure Goobie, nor did he encourage the co-accused to inflict any injury on him.

6. We consider the evidence on count 1 in a little more detail. Wootton was asleep in his flat when he heard the sound of smashing glass and saw a man standing a few feet in front of him. He thought he saw the man holding a knife with an 8 to 10 inch blade. As he stood up the man attacked him with the knife, slicing through the back of his hand which he had raised to defend himself. The man said, "Give me your face". Wootton buried his face in the sofa to protect himself, and as he did so he felt stab wounds consistent with the injuries to which we have referred. The man said to him, "Remember me". The attack lasted for about ten minutes. It appears that the attack may have been as a result of mistaken identity, but that is not material to the issues which the court has to consider.

7. There were inconsistencies between what Wootton said in his statements and what he said in evidence. Moreover, there was one dramatic aspect to his evidence. He was a man with 47 previous convictions for offences of dishonesty. When these were put to him, he denied having committed the offences and persisted in his denial even when the list of convictions was put before him. However, following an adjournment the witness came back and accepted that he had committed the offences on the list.

8. There was no eye witness to either of the incidents on which the charges were based. In relation to the second incident there was evidence from a neighbour which was consistent with that of the complainant. Evidence was given of the inconsistencies in the evidence of Wootton.

9. Goobie gave evidence in detail of the attack upon him. It included Wootton attempting to grab the wrist of the co-accused, who was holding the knife, whereupon the appellant shouted, "Stab him, stab him". Wootton was shouting out for help. His fingers were cut. He ran away shouting, "Why have you done this to me?", to which the appellant replied, "I'm Scottish Chris".

10. The appellant gave evidence on count 1. He said he did not know the complainant Wootton. He was on his way to a party where he was told he could purchase drugs. He knocked on a door, which was opened by Wootton. Two other men then attacked the complainant and the appellant decided to make his escape, concerned as he was. He left the scene. He heard a commotion as he was leaving. At no stage did he attack Wootton and he did have a weapon, whether it was a glass or a knife.

11. On count 2 his evidence was that he and co-accused had gone to the flats. Goobie appeared and asked him whether he was Scottish Chris. Before he could respond, Goobie punched him in the face and then produced a knife. The co-accused pushed Goobie and there was a struggle. The appellant said to the complainant in relation to the co-accused, "Don't stab him". He had not carried a knife away from the scene and did not know who had hidden it in his flat.

12. The co-accused George Mackay also gave evidence, substantially consistent with that of the appellant.

13. There are two grounds of appeal. The first, on which leave is sought, is that the judge ought to have stopped the case on count 1, that is the case involving Wootton, at the close of the prosecution case. On the appellant's behalf, Mr Selby submits, as he did at trial, that the evidence of Wootton was so discredited that it was not safe for the case to go to the jury. Principal reliance is placed on Wootton's denial of having committed the long list of offences which were put to him and which he had committed. There were other inconsistencies in the evidence, Mr Selby submits. He has listed them this way: the failure to refer to the knife upon the arrival of the constable to question Wootton; the failure to mention his evidence that the appellant had returned a couple of days later until a second statement he made weeks later; he had initially denied that he had been seen by a doctor; he wrongly claimed that the injuries to his leg had required stitches; he admitted that he had at some stage embellished the extent of the attack; he referred to a piece of glass being in the hand of the assailant at one time and a knife at another time; it was said to be in the assailant's left hand, whereas the appellant is right-handed.

14. These are not insubstantial inconsistencies, and of course the denial of previous convictions is dramatic. It is clear that that Wootton was a less than satisfactory witness and his record for dishonesty may indicate a propensity for deviousness. The judge, however, was in a very good position to assess Wootton, to assess the type of man he was and whether the entire evidence of the attack upon him was not only unreliable but falsified, which is the appellant's case. Wootton was undoubtedly attacked. On the attack, he was consistent, though aspects of it and its effect were the subject of the inconsistencies to which we have regard. We have no doubt that the submission to the judge was made with the same clarity and force as Mr Selby has made it today. The judge was, in our view, entitled to take the view he did. Having referred to the inconsistencies, which he plainly had in mind, "I am satisfied that a properly directed jury could properly convict". We refuse leave to appeal on that ground.

15. The second ground is that the judge misdirected the jury as to how they should approach the two counts. An application was made for severance. Mr Selby submitted that it was unfairly prejudicial to the appellant to have the two counts relating to two different incidents tried together. That application was refused. The single judge has refused permission to appeal against it and that application is not renewed. It was a ruling which, in our judgment, the judge was entitled to make.

16. That being so, submits Mr Selby, the greatest care was required to ensure that there could be no cross-admissibility, as he puts it, as between the two complainants: Wootton on count 1, Goobie on count 2. A clear direction was required to ensure that the jury did not rely on the evidence of Goobie in relation to count 1 or that of Wootton in relation to count 2. Such direction was not given, it is submitted.

17. The judge of course told the jury that matters of fact were for them. He then stated:

"The first point to make is that there are, as you know, two defendants in this case facing two charges. You must consider the cases for and against each defendant separately and on each count separately and return separate verdicts. These may or may not be the same as each other; that is entirely a matter for you the jury to consider and decide."

At page 8 the judge stated:

"Your deliberations will centre to a very large extent on your assessment of the credibility and reliability of the various witnesses you have heard from on both sides."

He added, at page 9:

"So far as the evidence is concerned, I have told you that you must consider the cases for and against each defendant and on each count separately and then return separate verdicts. That means you must not use the evidence, for example, on count 2 when deciding if Christopher Mackay is guilty on count 1, and vice versa. I recognise, of course, the decisions you make about whether an individual has or has not told you the truth will obviously impact on the whole of his evidence. Please bear in mind what I have just said and return separate verdicts."

The judge went on to summarise the prosecution case. He dealt with the two counts quite separately. Having dealt with count 1, he stated at page 15:

"Let me now move on and summarise the prosecution case on count 2."

18. Mr Selby submits that on the basis of that summing-up there was an invitation to use the evidence of Goobie to bolster that of Wootton and vice versa. On that direction the jury would regard the evidence of the two complainants as cross-admissible. There was a very real risk that the jury would use the evidence of a complainant on one count against the defendant on a quite separate count. Mr Selby relies on the case of Dye[2003] EWCA Crim 2424. Giving the judgment of this court, presided over by Mantell LJ, Nelson J stated at paragraph 26:

"Where however the Crown do not rely on similar fact and the charges are not severed, it is essential that the jury is directed in clear terms that the evidence on each set of allegations is to be treated separately and that the evidence in relation to an allegation in respect of one victim cannot be treated as proof of an allegation against the other victim. If such a warning in clear terms is not given there is the risk that the jury may wrongly regard the evidence as cross admissible in respect of each separate set of allegations, and may, as a consequence, rely upon what amounts to no more than evidence of propensity as evidence of guilt."

19. That was a case involving alleged sexual offences by the defendant against two step-daughters, two complainants. In the course of the trial judge's direction in that case, he said:

"Of course, your finding of guilty or not guilty on a particular count may help you as to your view as to his credibility and the credibility of the particular complainant, be it H or A, concerned in that count. In so far as it may assist you as to your view as to their respective credibility, in that regard it may help you when you come to consider other counts."

On the basis of that direction we follow the concern expressed by this court in paragraph 26 when allowing the appeal in that case.

20. That risk is not, in our judgment, present in this case. The direction of the judge could not have been clearer. We will not repeat it. There was no fear on the basis of that direction that the jury would use the evidence of Wootton in favour of Goobie, or vice versa. Indeed, the structure of the summing-up and the jury's own common sense would indicate that to them, an indication which would be confirmed by the directions to which we have referred.

21. Of course, the jury is entitled to consider the evidence of the defendant holistically. He gave evidence as to both alleged offences. The jury would consider his credibility as a whole. While they may believe him on one count and disbelieve him on the other, they cannot be deprived of the opportunity to make a general assessment of his credibility, and it was with that in mind that the judge gave the last part of the direction to which we have referred.

22. Directed in that way, the jury, having received also a fair summary of the evidence in the case, reached verdicts of guilty. We have found no reason to doubt the safety of those verdicts. Accordingly, the appeal is dismissed.