The Court of Appeal has dismissed M.S.’s appeal against three indecent assault convictions and upheld his 20-month prison sentence. It found that the trial judge erred by directing the jury to disregard all evidence about a complainant whose count had been withdrawn, including evidence the defence wanted to use about missing medical records. The appeal court concluded that this error did not cause a miscarriage of justice.
M.S. was convicted on 2 November 2017 of three counts concerning two complainants, M.W. and D.K. The jury acquitted him on four other counts, and the trial judge directed an acquittal on a further count. He was sentenced on 1 December 2017. The allegations related to teenage patients and medical examinations at a hospital and a private clinic, between 1964 and 1991. The judgment records that M.S. was a surgeon and hospital consultant who retired in 1995.
The appeal challenged several decisions made during the trial, including admitting evidence that complainants’ civil proceedings against the hospital had been settled, refusing to separate the counts, and directions to the jury on system evidence, delay and corroboration. The Court of Appeal rejected those grounds. It held that the settlement evidence responded to the defence questioning and that the jury had been directed not to draw an adverse inference against M.S. from the hospital’s settlements, which were made without an admission of liability.
The court also upheld the decision to try the counts together. It considered the allegations sufficiently similar: the complainants were teenage boys who attended M.S. for treatment and alleged genital touching during examinations. The possibility of contamination, influence or collaboration was generally a matter for the jury to assess, the court said, rather than a reason to exclude the evidence before trial, except in the most exceptional circumstances.
On the successful ground, the appeal court said evidence about the complainant identified as D.B. could not be used by the prosecution as system evidence after the trial judge directed an acquittal on that count. But the defence should have been allowed to rely on relevant parts of that evidence to make its point about the potential effect of missing medical records. The court found that the trial judge’s direction to disregard it completely was an error.
The court applied the proviso in section 3(1) of the Criminal Procedure Act 1993, which permits a conviction to be affirmed despite an error if no miscarriage of justice occurred. It said medical records were available for both M.W. and D.K., the complainants in the convictions, and that the defence had used records in cross-examination concerning M.W. It therefore upheld the convictions and dismissed the appeal.