R v Chopra (Manoj Kumar)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE HUGHES |
| Judgment Date | 21 August 2006 |
| Neutral Citation | [2006] EWCA Crim 2133 |
| Docket Number | No: 2006/3533/C4 |
| Court | Court of Appeal (Criminal Division) |
| Date | 21 August 2006 |
[2006] EWCA Crim 2133
IN THE COURT OF APPEAL CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2
Lord Justice Hughes
Mr Justice Mackay
Mr Justice Treacy
No: 2006/3533/C4
MR W COKER QC appeared on behalf of the APPELLANT
MR M BURROWS appeared on behalf of the CROWN
1.1. This appellant is a dentist. In June 2006, in the Crown Court at Wolverhampton, he was tried on an indictment which alleged indecent touching of three teenage patients —one of those on three different occasions. He was convicted upon counts which related to two of the three patients but not on the three counts which related to the third. His appeal against conviction raises the question whether the jury should have been permitted to treat the evidence of one complainant as supportive of the evidence of another. The judge held that the evidence of the several complainants was cross -admissible providing that collusion or contamination between them could be excluded. The principal contention of the appellant is by way of challenge to that ruling.
2.1. In each of these cases the complainant alleged that the appellant had deliberately placed his hand on her breast and squeezed it. In each case the appellant denied that he had done any such thing. He said that in the course of examination he might have brushed the breast with his arm, as clearly, one would think, a dentist might. In the first case he said that he had rested a tissue on the front of the patient's shoulder whilst de -scaling her teeth and might have pressed down upon it to hold it in place whilst wiping clean the scaler on it. In the third case he said that when the girl was rising from the chair to leave the room they got in each other's way in what he described as a "near collision" so that his left hand contacted her shoulder. We understand from Mr Coker that it was not his contention that that encounter could possibly be capable of misinterpretation as the squeezing of her breast, so that in relation to that patient his case was that nothing resembling deliberate squeezing could have taken place but that his right forearm might have brushed the breast in the course of reaching to examine her mouth. It follows that in each case his contention was, as indeed it would have to be, that nothing resembling in any way the deliberate squeezing of the breast had occurred.
3.1. The first complainant, H, was 12 years old at the time of the examination, which was 10 years previously in June 1995. She was the patient upon whose shoulder the tissue was placed. So to place it was accepted as legitimate dental practice. She said that the appellant first brushed his arm across her chest in a manner that she thought might well be accidental but that he then squeezed her breast between three fingers and the palm of his hand in a deliberate motion whilst holding the scaler in his other hand. She reacted immediately. It was common ground that at a stage in the examination she got up, ran out of the room and complained straightaway outside to the nurse or receptionist there and to her mother who was waiting outside.
4.1. It appears that that complaint was reported promptly to the police. The complainant was interviewed using the video recording procedure and the appellant was seen by the police and interviewed about it. It was at that stage an isolated complaint and the decision was made that there should be no prosecution. Years later, however, when the third complainant made a similar allegation, this first complaint was remembered and in due course it formed count 1 on the indictment before the jury.
5.1. The second complainant attended on five occasions in all in the second half of 2004 at a time when she was just one side or the other of her 16th birthday. She alleged that on the second, third and fourth of those examinations the appellant had placed his hand on her breast and squeezed it. She described deliberate cupping or holding of the breast, in each case during the course of what was otherwise a dental examination. There was evidence that she had spoken briefly to a school friend at around the time of the incidents saying something to the effect that the appellant had put his hand on her breast. She had not, however, made any formal complaint; she had not spoken to the dental staff. Her complaint came to light when, following the third complainant's allegation, the dental authority circulated those who had been patients of the appellant with a letter stating that he had been suspended after serious allegations unrelated to the quality of his treatment.
6.1. The third complainant was 13 at the time of her examination on 8th April 2005. She went to the dentist with her grandmother. She said that while the nurse was temporarily out of the room and the appellant was leaning over her as she sat in the chair and in order to examine her, she felt first some pressure on her breast that she thought must be accidental, but then that his hand moved actually onto her breast and squeezed it. This complainant did not say anything at the immediate time of the examination but she broke down that evening in the company of her father and that is when the allegation first surfaced. An immediate report was made that evening to the police and, as we have already said, it was that third complaint which led to the first complaint being re -visited and, separately, to the second complaint reaching the police and being made public.
7.1 At the trial there was material which the jury needed to examine relating to the reliability and credibility of each of these three complainants. In the case of the first there was a background of unhappy family history. She had complained approximately two years earlier in 1993 that her mother's partner had molested her sexually. There had been then an intervention by Social Services. For a short while she had spent weekends either with an aunt or in one or two cases with foster parents in order to avoid contact with the partner. Then, because her mother proposed nevertheless to marry the gentleman, there had briefly been emergency protection proceedings brought by Social Services as a result of which she, then aged 11, had been removed to foster care. Within a matter of days she had unsaid the complaint she had made. Her evidence for the jury to assess was that the complaint was true but that she unsaid it in order to get home and live with her mother. There was in her case also the suggestion that she had made a similar complaint against the aunt's partner. That, however, the complainant denied and there was an issue about whether the complaint had been made or not. The jury had all that material properly before it and it was able to decide for itself whether it did or did not throw doubt upon the allegation which she made at the time of her dental examination when she brought the proceedings to an abrupt close.
8.1. In the case of the second complainant there was rather confused evidence about whether her mother was present in the examination room on the relevant occasions. The evidence both of the complainant and her mother was not always consistent, either the one with the other or for that matter internally. In the end, both her mother and the dental nurses at the practise said that mother had been there on each of the relevant occasions. Again, the jury had that evidence fully explored and it was able to decide whether it could be sure of the accuracy of the complainant.
9.1. In the case of the third complainant, she had at one stage told her father that the touching stopped when grandmother, with whom she had gone to the dentist, came into the room, whereas she said in interview to the police very shortly afterwards that grandmother came in soon after the incident. Here, on the one hand, there was an issue for the jury whether there was an innocent elision of events which were very close in time or on the other a material inconsistency such as undermined her reliability.
10.1. After hearing argument at the conclusion of the evidence, the judge ruled that the evidence of each complainant could be treated by the jury as admissible to support that of another, providing that the possibility of collusion or contamination between them was excluded. The scope for any complainant to be aware of the complaint of any other had been fully explored at the trial. These were girls who were not known one to another. The first and third had met the appellant at different surgeries some miles apart in the West Midlands conurbation and the alleged incidents were well spread in time.
11.1. After introducing the topic, identifying suggested similarities, reminding the jury that the defence argument was that there were significant dissimilarities between the allegations, and after stressing to the jury that they must consider each count separately, the judge said this in his summing -up:
"The important point is this. The similar fact principle only applies if you are sure that the witnesses have not colluded and their evidence has not been contaminated by gossip from others in the same small area of Sedgeley, and Mr Coker reminded you by reference to the plan of the proximity of addresses and schools, and so on. If you are sure that there was no collusion or contamination, the principle of similar fact evidence allows you to say, as the prosecution invite you to do, that it is an affront to common sense that three witnesses should independently make such similar allegations against the same person. It is for you to say whether in your judgment the similarities do lead you to conclude that these three girls cannot...
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