COURT OF APPEAL OF SAMOA
 Puni v Police [2012] WSCA 18 

Case name: Puni v Police
Citation: [2012] WSCA 18
Decision date: 23 November 2012
Parties: EMOSI PUNI of Tiapapata,	Medical Practitioner (Appellant) and POLICE, (Respondent)
Hearing date(s): 20 November 2012
File number(s): CA 13/12
Jurisdiction: Criminal 
Place of delivery: Mulinuu
Judge(s): 
Justice Fisher
Justice Hammond
Justice Salmon
On appeal from:
Order:
Representation: 
B Sellars for appellant 
P Chang and R Titi for respondent 
Catchwords: 
Words and phrases:
Legislation cited:
Cases cited:
Ufiufi v Attorney-General [2009] WSCA 
R v Owen [2008] 2 NZLR 37.
Summary of decision:

COURT OF APPEAL OF SAMOA
HELD AT MULINUU

FILE NO. C.A 13/12

BETWEEN
EMOSI PUNI of Tiapapata, 	Medical Practitioner
Appellant

AND
POLICE
Respondent

Coram	
Honourable Justice Fisher 
Honourable Justice Hammond 
Honourable Justice Salmon
Counsel:
B Sellars for appellant 
P Chang and R Titi for respondent 
Hearing: 20 November 2012
Judgment: 23 November 2012

JUDGMENT OF THE COURT
Introduction
[1]	Dr Puni, the appellant, is a medical practitioner.  He was charged under s 54(a) of the Crimes Ordinance 1961, with one charge of indecent assault on a female patient.  We will designate her as X.
[2]	The alleged offence occurred on 18 July 2005.  The matter has been before the Samoa Courts for some time.  It is sufficient to note that the trial which has led to this appeal took place on various dates in mid-2012.
[3]	This trial was conducted on a judge alone basis before Slicer J.  On 24 August 2012 the Judge convicted the appellant, and delivered written reasons for his judgment.
[4]	Dr Puni has not yet been sentenced.  He has not practiced for some considerable time now, his licence having been suspended by the relevant authorities after the complaint was made against him.
The essence of the Crown case 
[5]	X thought she was pregnant although she had an intrauterine device (“IUD”) in place.  She was referred by a family clinic to Dr Puni’s unit.  In the event, she saw Dr Puni (whom she had not seen before) to have her pregnancy confirmed and the IUD removed.  
[6]	The prosecution case was that a protracted examination by Dr Puni took place over close to 25 minutes.  It was conducted in the absence of a chaperone.  After the brief insertion of a speculum, a bi-manual examination was conducted by Dr Puni.  He manipulated X, for his own gratification.  The examination concluded without the IUD being removed, but with the appellant exposing his penis to X and using words that were alleged to be an invitation to have sexual intercourse.  That was declined.  The doctor asked whether the complainant wanted the examination to continue.  She did not.  She left the surgery and subsequently complained to persons present at the clinic, and thereafter to her mother-in-law.
[7]	At trial Slicer J found X’s evidence to be reliable and cogent.  In essence the judge found that there was unnecessary digital manipulation of X by Dr Puni, and exposure of his penis to her.  He therefore entered the conviction. 
The grounds of appeal
[8]	As the grounds of appeal stood before us, when further particularized, they are:
(a)	The court’s verdict is unreasonable and is not supported by the evidence.
(b)	The court erred in law and in fact in finding the defendant guilty of the crime of indecent assault.
(c)	There has otherwise been a miscarriage of justice.
(d)	The court has mis-stated and/or misunderstood the evidence.
[9]	Both counsel for the appellant and the Attorney-General accepted that the test as to the reasonableness of a verdict in Samoa is that articulated by this court in Ufiufi v Attorney-General [2009] WSCA 13: that having regard to all the evidence, the trial judge could not reasonably have been satisfied beyond reasonable doubt that the appellant was guilty.  See also the observation of the Supreme Court of New Zealand in R v Owen [2008] 2 NZLR 37.
[10]	There was no dispute at trial that if the doctor had physically manipulated X for his own physical gratification and exposed his naked penis to her, those acts amounted to indecencies for the purpose of the section.  The case was run on the footing that the issue was whether these events had occurred. 
[11]	The trial judge held that they had.  The appellant faces the difficult task of establishing that the judge was wrong in this respect.  Appropriate weight has to be given to the advantages the trier of fact has over an appellate court, assessment of the honesty and reliability of witnesses being a classic example; the weight to be given to individual pieces of evidence is a function of the trier of fact; reasonable minds can disagree on this issue and an appellate court should not lightly interfere with the trier of fact’s view.  It is always necessary for an appellant to articulate clearly in what respect a verdict is said to be unreasonable and why, after making proper allowance for the points already adverted to, the verdict should nevertheless be set aside.
The evidence at trial 
[12]	X visited a family heath clinic.  She was a married woman, with children.  She had an IUD inserted and was having some discomfort with it.  At the same time, she felt as if she was pregnant.  At that clinic she had a pregnancy test which was positive.  She informed the nurse at the clinic of her IUD.  At that time she was advised to see a specialist for advice.  She was informed that it was not safe for her to have the IUD with her pregnant state. 
[13]	It was in those circumstances that X made an appointment for 18 July 2005 at Dr Puni’s unit, adjacent to a hospital.  After arrival at Dr Puni’s rooms, she was sent to the hospital unit for a scan. A scan was conducted.  On the basis of it, X was advised by Dr Puni that she was not in fact pregnant.  X was a married woman with two children (one having been born two years previously).  She was described by the trial judge as “attractive”. Clearly she was still within the age of child bearing.  There was a discussion as to possible methods of contraception.  X elected to have the IUD removed.
[14]	Somewhat surprisingly, there was no chaperone present during the examination which then took place. There was no discussion about whether X wanted anyone in the room.  The expert evidence was firm that this is best practice in a situation of these kinds of medical examinations.
[15]	In any event, as requested, X removed her panties.  She lay on the examination couch.  She put her feet in stirrups.  Her account was the she then felt something “cold” inserted and moved in and out of her vagina.  Subsequently she felt a hand pressing down on her lower abdomen and what was suggested to be digital penetration of her vagina with the other hand took place, she maintained for as long as 20 or 25 minutes.
[16]	X noticed a change in Dr Puni’s breathing with it becoming heavier, and she felt his body shaking.  One hand was removed from her stomach (the other hand still moving in and out of her vagina).  Because of the change in the doctor’s expression and his breathing, she sat up.  At that stage she noticed his penis was exposed.  It was erect and he was holding it with his “free” hand.  She said the doctor asked her, “do you want me to put this thing inside?”  She said no.
 [17]	X said,
I felt shocked, sad, and unhappy; I wasn’t expecting anything like that to happen, you know; I had also asked the Lord, why is this happening to me?  Why me, why can’t it be the next patient?  That’s how sad I was.
[18]	X grabbed her underwear. She gathered herself up whilst the doctor was writing notes.  She said in evidence: “I just couldn’t wait to get out of the room.” She went immediately to the main reception room and spoke with the receptionist.  She said “she wasn’t going to pay for this visit” and “why?” which included a reference to the doctor showing her his penis.  The receptionist asked X if she wished to go back and tell Dr Puni of her complaint, to which X said she was not going to go back in there, “that she didn’t want to see his face any more, that they had her (phone) number, but she wasn’t going to pay and wasn’t going to go back into the doctor’s room.”
[19]	The trial judge said that X was crying and distressed at this time.  We accept that this was an error by the trial judge on this point.  It is clear that he did not have a transcript of the trial at the point he delivered his reasons. Ms Sellars made much of the importance of this error, and we will return to it later in the judgment. 
[20]	In any event, X re-joined her husband and returned home.  She said nothing to her husband.  But later that day, she recounted the events above-noted to her mother-in-law.  This was accepted by the trial judge, on the correct principles, as recent complaint evidence. 
[21]	The judge said he accepted “the substance of the complainant’s version and [regarded] her as a reliable and accurate witness. She had no reason to lie.  This was not a case of an inexperienced woman who mistook genital contact for something sexual, or wrongly saw an object or movement of a hand as a penis.”  He rejected the defence account.
The argument on appeal  
[22]	Given the defence that the events complained of simply did not happen beyond the realm of an orthodox medical examination, it was urged on the trial judge, and was the essential thrust of the appeal before us, that the complainant was an unreliable witness whose recall lacked important detail.  This was coupled with an assertion that the judge had misapprehended questions put in cross-examination to the complainant and then taken those misapprehensions into account in assessing Dr Puni’s credibility. 
[23]	In her able and careful submissions Ms Sellars took us to the evidence in some detail.  Her principal concern was a specific holding by the trial judge that X was seen “to be in a distressed condition immediately after the examination and such distress lasted a considerable time.”  The judge relied on this as one fact in his credibility assessment.  
[24]	As we have already acknowledged, it is clear from the transcript that X was not heavily distressed on emerging from the doctor’s office.  She was certainly concerned, and spoke to reception in the manner we have already noted.  The receptionist said she was wiping away some tears.
[25]	This was a material error of fact.  X’s demeanour immediately after the incident in question was distinctly relevant.  But it was only one factor and in reality the issue was more one of timing and degree.  There was evidence that X was later in the day very distressed.
[26]	A second submission which was strongly advanced was the claimed inability of X to adequately describe the examination.  This is said to be indicative of her being an “unreliable witness”.  At para 107(4) the judge said, “It is not correct to say that she emphatically denied the use of a speculum” and then referred to the evidence in chief (a transcript was available for this evidence).  In cross-examination X disagreed with the passage relied upon by the court and “totally disagreed” that a speculum was used.  
[27]	That acknowledged, the context of her answers and what she meant does not, with respect, confirm that she “totally disagreed” that a speculum was used.  X clearly did not see nor was shown, any of the instruments used by Dr Puni.  She only felt “a cold thing” being inserted inside her genitalia.  She confirmed that Dr Puni did inform her of the coldness of the object.  She further stated that she was not sure what was inserted but that it did not feel like a speculum.  Her other reason for thinking it was not a speculum was because when she had her IUD inserted, she felt a wide opening of her vaginal canal, but she did not have this feeling after the doctor inserted the cold thing inside her.
[28]	It seems from the evidence of X that a cold thing was indeed inserted inside her genitalia.  There has to be a strong inference that it was the speculum.
[29]	She further stated that after that first insertion, the object was withdrawn and then inserted again, but did not have the cold sensation any more on the second time and other insertions thereafter.  The difficulty was that she was clearly not in a position to have a direct view what the doctor was doing except from what she was feeling.
[30]	Hence, as counsel for the Attorney-General said, she only denied a speculum being used because nothing was shown to her by the doctor of the instruments he used, and she did not feel an opening sensation of her vagina canal from the speculum which was a feeling she had had on the IUD insertion.
[31]	A third line of concern was that the court “appears to have misapprehended questions put in cross-examination to X and then taken the misapprehension into account in assessing her credibility”.
[32]	X was clear enough when she gave her evidence in chief that she could see the Doctor moving around.  She was very clear that the doctor was standing at the time she sat up when she felt that something was not right.  At that time she saw him with his penis poking out of his trousers and held in his hand.  She confirmed that she could see him during his examination but not down at her bottom when he was doing his work.  The defendant himself confirmed that he was standing at the time when he was preparing for the examination and during it until he sat down to write his notes.
[33]	It is convenient to note here that the doctor himself, when he gave evidence, changed his own answers more than once.  He denied statements made to the Police, in the presence of his lawyer.  There was evidence of corrections which the doctor himself initiated.  His complete change on key issues of facts from the statements to Police at trial entitled the judge to question his credibility, as against that evidence of X.
[34]	Then reference was made to what was said after X left the examination room and indicated a refusal to pay the account to the defendant.  The complaint is that what the judge referred to was not “an accurate summary” of the evidence given by the witness, who we designate as “P”.  There was a good deal of contention as to what exactly was said and what P took from it.  But the evidence appears clear that the doctor, on being advised that X had refused to pay the bill, did not endeavour to follow up on any reasons for her refusal.  He simply suggested she could pay it back when she came back, making it seem that he was expecting the complainant for another visit.  In fact she was never scheduled for another appointment on a later date.  The judge was entitled to regard this evasion with some concern.
[35]	The next matter of concern is expressed this way: “The court appears to have misunderstood aspects of the medical evidence called by the prosecution and has then erroneously contrasted this with the procedure described by the defendant.”
[36]	There was undoubtedly a sharp conflict between the evidence of X and the doctor about the removal of the IUD.  X was adamant that this was discussed, and her wish to have it removed and to change to some other form of contraception.  She said this was understood by the doctor and thus the reason he suggested the use of tablets in its place.
[37]	The doctor’s position was that the complainant never expressed or said to him that she wanted the IUD removed.  The doctor’s evidence at trial contrasted with what he had said in his caution statement.  Given the contradictory nature of the doctor’s evidence in court, and what he related to the Police, it was, with respect, hardly surprising that the judge accepted the consistent and adamant evidence given by the complainant.  As is always the case where there are contradictory statements by a party, it was open to the trier of fact to find which account is to be accepted, and reliable.  The doctor’s evidence was open to criticism.
Assessment
[38]	As with any trial of this kind, ultimately there can be the sharpest of credibility contests between the patient and the doctor.  X had never been to this doctor before; she did not seek him out as her consulting doctor.  As the trial judge rightly said, she was sexually experienced and her own experience enabled her to distinguish clinical rather than aroused handling.  She maintained a clear line as to what had happened.  She took up her concerns immediately afterwards, and by her prompt “recourse to law”, as the judge put it.
[39]	It seems quite plain that the doctor did not follow accepted and prudent medical practice.  The exercise was to be undertaken was relatively straightforward as to the removal of the IUD and checking that there was no ectopic pregnancy.  The prolonged penetration of X and the breathing and shaking recounted by X, were by inference acts of sexual arousal.  The judge found as a fact that the complainant had seen the accused’s penis with his hand on it outside his trousers.
[40]	The judge, as he put it, accepted the “substance” of X’s account, and rejected the defence that nothing untoward occurred.  In the result, the matters of concern raised, even when partly grounded (as with the “distress” factor), fall a long way short of what would be required to justify this Court displacing the trial verdict.
Conclusion
[41]	The appeal against conviction is dismissed.
•	  
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Honourable Justice Fisher

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Honourable Justice Hammond

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Honourable Justice Salmon