The Court of Appeal has reserved its decision over whether jailed New Plymouth doctor Hiran Fernando's appeal against his convictions for indecently assaulting female patients will be allowed.
Fernando was last year jailed 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 the women gave evidence of the doctor playing with their nipples, carrying out unnecessary vaginal examinations and asking questions about their sex lives.
His lawyer Harry Waalkens QC said Fernando had suffered a miscarriage of justice in his trial because medical records relating to four of the women were no longer available.
These missing records prejudiced Fernando as he was unable to respond to allegations, put them in a medical context or challenge the women's credibility, Mr Waalkens said.
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.
He said the verdicts reached by the jury were reasonable and no miscarriage of justice had occurred.
Justices William Wilson, Graham Panckhurst and Geoffrey Venning reserved their decision.
- NZPA
