Where there was persuasive evidence both of identification and of indecent assault on both counts, the law did not require a guilty verdict on one count before the similar fact principle could come into operation.Appeal by the defendant ('M') against his conviction on two counts of indecent assault on a female ('Counts 1 and 2') and one count of threatening to kill ('Count 3'). 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. Both the alleged sexual assaults occurred near the same block of flats, at about midnight on two Friday nights a month apart. On Count 1, M denied that he was the man involved, although the fact of the incident could not be challenged. On Counts 2 and 3, an incident involving the complainant ('P') on those counts and M at the relevant time and place was admitted. M's defence was that P consented to such as occurred between them and also that far less occurred than she alleged. The grounds of appeal complained of the judge's conduct of the trial, in particular that: (i) he cross-examined M at length, on irrelevant or unimportant topics and in a sarcastic manner; (ii) his summing-up was fundamentally unbalanced; and (iii) his direction on similar facts was flawed. A renewed application for leave to appeal was based on the judge's ruling that P could be screened from M whilst giving evidence.HELD: (1) In the circumstances, the judge was entitled to exercise his discretion in favour of screening the witness. The application was refused. (2) The judge was entitled to seek elucidation from M as to the circumstances surrounding his meeting with P. It was doubtful whether the other issues deserved the attention given to them by the judge in his questioning. The elements of sarcasm in his questioning were unfortunate. However, in the context of the trial as a whole, including the content of the summing up, the court was far from persuaded that the questioning of the M by the judge affected the fairness of the trial or the safety of the jury's verdict. In a trial lasting eleven days, with a very full summing up, it was not a real possibility that the jury were prejudicially influenced by the judge's questions on issues that were not central to the case. (3) 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. (4) Where, as in the present case, there was persuasive evidence both of identification and of indecent assault on both counts, the law did not require a guilty verdict on one count before the similar fact principle could come into operation. (5) While the summing up could have been clearer in relation to the similar fact evidence, there was no doubt as to the safety of the verdicts. It was not a real possibility either: (a) that the jury failed to appreciate what the issues were; or (b) 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 before applying the similar fact principle.Appeal dismissed.
 EWCA Crim 2749