R v Fernando - [2007] NZCA 485

PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985

IN THE COURT OF APPEAL OF NEW ZEALAND

CA469/06 [2007] NZCA 485

THE QUEEN

v

THEOMAL HIRANTHA JOSEPH FERNANDO

Hearing: 24 and 25 July 2007
Court: Wilson, Panckhurst and Venning JJ Counsel: A H Waalkens QC for Appellant
C L Mander and J Marinovich for Crown

Judgment: 2 November 2007 at 12pm

JUDGMENT OF THE COURT

The appeal is dismissed.

REASONS OF THE COURT

(Given by Wilson J)

R V THEOMAL HIRANTHA JOSEPH FERNANDO CA CA469/06 2 November 2007

Table of Contents

Para No

Introduction [1] Background [5] The allegations [9] Grounds of appeal [23] Application for stay [24] Submissions for appellant [25] Submissions for Crown [32] Discussion [37] Directions to the jury [40] Delay [41] Similar fact [46]
Lies [52] Perverse verdicts [59] Juror irregularity [67] Result [84]

Introduction

[1] On 12 October 2006 the appellant, a registered medical practitioner, was convicted in the High Court of New Plymouth of 26 counts of indecent assault, having been found guilty by a jury of these charges. The convictions encompassed the allegations of ten complainants. The offending spanned the period from
7 October 1981 to 25 July 2002. All of the convictions arose out of consultations by the complainants with Dr Fernando. In the course of deliberations, one of the jurors was discharged because of ill health.

[2] The appellant appeals against all 26 convictions.

[3] On 15 November 2006, the appellant was sentenced by Priestley J, the trial Judge, to three years and two months imprisonment and was ordered to pay to the complainants reparation totalling $29,000.

[4] Unsurprisingly, there is no appeal against that sentence.

Background

[5] Dr Fernando is a registered medical practitioner who had been practising as a General practitioner in New Plymouth since December 1980. He is said by his counsel to be an upstanding member of the community, closely involved with his church, with Rotary and, along with his wife and children, with school and music activities.

[6] On 30 July 1984 Ms H, then 16 years old, made a complaint to the Medical Council about Dr Fernando. It was dismissed without a hearing. Her allegations formed part of the charges against the appellant in the current proceedings.

[7] The appellant was indicted on 37 counts, comprising 34 counts of indecent assault and three counts of sexual violation. The 26 counts of indecent assault of which he was convicted comprised 14 counts of touching the victim’s breast or nipples with his hand (some of which also involved the appellant pressing his leg or body against that of the victim), three counts involving pressing his erect penis against the patient, and nine counts of digital penetration or rubbing genitalia. Dr Fernando was acquitted of the three charges of sexual violation.

[8] One of the jurors (referred to as Juror S) was discharged on 11 October 2006, the second day of the jury’s deliberations. The juror’s general practitioner had been consulted…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2007] NZCA 485
Decision Date: 2 November 2007

CaseChat Overview and Summary

The appellant, Dr Theomal Hirantha Joseph Fernando, appealed against his convictions on 26 counts of indecent assault. The appeal was dismissed by the Court of Appeal of New Zealand. Dr Fernando was a registered medical practitioner in New Plymouth, who was convicted of indecently assaulting ten complainants over a span of 21 years. The jury was directed on the significance of delay, similar fact evidence and the absence of a "lies" direction. The appellant submitted that the jury's verdicts were perverse and unreasonable. The appellant further submitted that the jury's deliberations were irregular, as the foreman of the jury was biased against him, and pressured Juror S, resulting in her ill health and subsequent discharge. The Court found that none of the grounds advanced in support of the appeal had been made out, and dismissed the appeal.

Orders