Practice and Procedure

R v C (2003)

PUBLISHED November 25, 2003

A conviction for indecent assault by a doctor on patients was unsafe as the judge had erred in ruling the complaints were capable of supporting each other, whilst there was no longer a need for striking similarity, similar features that went beyond coincidence had to be identified. The similarities identified did not go beyond the stock in trade of a delinquent doctor.Appeal with leave of the single judge, against convictions for indecent assault on females. The defendant ('D') was sentenced to a total of one year imprisonment. D was a GP and the victims to the offences were all patients who alleged various indecent assaults during consultations. Three counts involved the touching and exposure of the victims' breasts and two counts involved touching the vaginal area. It was common ground that over the seven year period represented by the indictment D would have had consultations with 21,000 female patients. It was D's defence that any touching or exposure was unintentional and was accidental. The judge ruled that the complaints regarding touching in the breast area were mutually supportable as they were caught by the similar fact evidence doctrine given that the defence was mistake and accident. D appealed conviction on the ground that the complaints should not have been treated as similar fact evidence. The prosecution contended that there were a range of similarities which justified the evidence of each case supporting the other. Where the purpose of admitting evidence was to rebut an explanation given by D then a lesser degree of similarity was required than where identity was in issue, as in R v Massey (2001) EWCA Crim 2850.HELD: (1) It was clear from the authorities that the circumstances of each case had to be considered in the resolution of disputes on similar fact evidence. In the present case it was very relevant to bear in mind two points: (a) D had had 21,000 consultations during the relevant period and (b) D's defence was that the victims misunderstood his actions and he may have touched them accidentally. (2) Evidence of other misconduct had to show more than mere propensity to commit the offences charged. Following DPP v P (1991) 3 WLR 161 there was no longer a need for striking similarity, however, there was still a need to identify similar features that went beyond coincidence, see R v Musquera (1998) CLR 857. The similar factors highlighted in the present case such as the doctor patient relationship, the fact that the victims were all women, and all the offences involved removing clothing on the pretext of the need for examination did not go beyond the stock in trade of a delinquent doctor. (3) The judge erred in ruling that the complaints were capable of supporting each other and as a result the conviction was unsafe.Appeal allowed, conviction quashed, retrial ordered.