KEY POINTS:
Disgraced New Plymouth doctor Hiran Fernando, jailed for indecently assaulting female patients, did not get a fair trial because of missing medical records, his lawyer told the Court of Appeal today.
Fernando was last year imprisoned for three years and two months, after being convicted of 26 charges of indecently assaulting 10 patients.
He was acquitted of eight indecent assault charges and three sexual violation charges. The charges spanned 21 years from 1981 to 2002 involving a total of 12 women.
During Fernando's five-week trial they gave evidence of the doctor playing with their nipples, giving unnecessary vaginal examinations and asking questions about their sex lives.
Fernando's lawyer Harry Waalkens QC told the Court of Appeal his client suffered a miscarriage of justice at his trial because medical records for four of the women were missing.
This prejudiced him as he was unable to respond to the allegations, put to them in a medical context or challenge the credibility of the women.
The missing records related to 17 of the 26 counts on which Fernando was convicted.
But crown counsel Cameron Mander said even if the records were available it was only speculation whether they would have assisted Fernando.
At the trial Fernando said he had recently realised that his notes were not complete, some normal examinations were not recorded and the notes had "deficiencies in many places", Mr Mander said.
Mr Waalkens said the majority of the women sought treatment from Fernando for conditions of a "highly sensitive nature", in some cases requiring examinations which could lead to inadvertent touching of the genitals and a high risk of misunderstanding from the patient.
Two of the women had seen Fernando about sexual dysfunction, and such cases were hard to manage and had a high risk of confusion, Mr Waalkens said.
Other consultations required pelvic examinations, breast examinations and pregnancy checks.
But Mr Mander said the medical experts at the trial were unanimous that while inadvertent genital touching may occur, there was no medical reason for the type of rubbing described by the witnesses.
Mr Waalkens said three of the women had significant psychiatric and psychological issues, including one who suffered from hallucinations, he said.
Only one of the women complained at the time, and some of the others went on to have many more consultations with him - one returning eight times after the alleged behaviour and another going back 49 times over many years.
Many womens came forward after publicity about the matter in the media, Mr Waalkens said.
He criticised the summing up by the trial judge, saying better directions should have been given to the jury on issues including delay and the fact there were a number of complainants.
The latter unusual situation required more direction to the jury, as "the temptation of the jury to be influenced by the number of complainants was ever present".
Mr Waalkens said the complaints related to 38 consultations out of about 145,000 over the time period involved, but the jury may not have realised this.
Mr Mander said the trial judge gave explicit directions to the jury that they should be cautious about using "similar fact evidence".
He said there was no misdirection by the trial judge which gave rise to a verdict that might not otherwise have been reached.
The appeal continues tomorrow.
- NZPA
