Chopra, R. v

Where several counts are tried together, evidence relevant to one count is bad-character evidence in relation to another and must pass a gateway in the Criminal Justice Act 2003. Under section 101(1)(d), the governing question is whether the evidence is relevant to an important matter in issue, including propensity to commit offences of the kind charged.

The former common-law similar-fact requirement for enhanced probative force does not govern admissibility. There must nevertheless be sufficient connection and similarity for the allegations to be capable of establishing propensity. The judge assumes the evidence to be true unless no reasonable jury could believe it; the jury decides truth, weight and whether similar allegations mutually support each other.

R v Chopra concerned a dentist charged at Wolverhampton Crown Court with indecently touching three teenage patients during dental examinations. Each alleged deliberate squeezing of her breast. The defendant denied any deliberate touching and contended that innocent dental movements had been misunderstood.

The jury convicted on the count concerning the first complainant and the count concerning the third, but acquitted on the counts concerning the second. The trial judge had ruled that the complainants’ evidence was cross-admissible, subject to the exclusion of collusion or contamination. On appeal, the defendant challenged that ruling and the adequacy of the jury directions concerning the large number of patients who had made no complaint.

1. Appeal dismissed. The convictions on counts 1 and 5 were safe.

2. By section 112(2) of the Criminal Justice Act 2003, evidence tending to prove one count was bad-character evidence in relation to each other count. It was therefore admissible only through a section 101 gateway.

3. Section 99 abolished the former common-law admissibility rules. Under section 101(1)(d), read with section 103, the material issue was whether the evidence was capable of establishing a propensity to commit the charged type of offence. The statutory test was relevance, not the former similar-fact requirement that the evidence possess enhanced probative force beyond propensity.

4. The allegations had sufficient connection. Each complainant described a teenage patient being deliberately touched on the breast, without any dental reason, while the defendant appeared to continue the examination. If accepted, the evidence was capable of showing a propensity occasionally to molest young female patients during examination. The judge had to assume the evidence true at the admissibility stage unless no reasonable jury could believe it. Truth, weight, collusion and contamination were matters for the jury.

5. R v Cowie [2003] EWCA Crim 3522 was factually distinguishable because it concerned complaints that proper intimate medical examination had been misunderstood or exaggerated. In any event, its common-law approach could not displace the statutory relevance test.

6. The summing-up fairly identified the defence case, including the absence of other complaints and the need to decide each count separately. Similar allegations need not all be true, but each may make another more likely. The jury’s acquittals on the second complainant’s counts did not require a hypothetical further direction that her evidence be disregarded when considering the remaining counts.

• Court of Appeal (Criminal Division): appeal against conviction dismissed in [2006] EWCA Crim 2133.
• Crown Court at Wolverhampton: in June 2006, the defendant was convicted on the counts concerning the first and third complainants and acquitted on the counts concerning the second complainant.