Police v Puni [2012] WSSC 117 (24 August 2012)

[THE NAMES OF THE COMPLAINANT, HER FAMILY AND HER VILLAGE ARE SUPPRESSED]

SUPREME COURT OF SAMOA

Police v Puni [2012] WSSC 117

Case name: Police v Le Mamea Emosi Puni

Citation: [2012] WSSC 117

Decision date: 24 August 2012

Parties: POLICE (prosecution) and LE MAMEA EMOSI PUNI male of Tiapapata, Medical Practitioner

Hearing date(s): 29 – 30 May 2012 (Stay of Proceedings) and 2 – 6 July 2012

File number(s):

Jurisdiction: CRIMINAL

Place of delivery: MULINUU

Judge(s): JUSTICE SLICER

On appeal from:

Order:

Representation:
P Chang and T Toailoa for prosecution
B Sellars and E Puni for defendant

Catchwords:

Words and phrases:

Legislation cited:
Crimes Ordinance 1961 s.54 (a)

Cases cited:
The Queen v Lillyman [1896] UKLawRpKQB 126; [1896] 2 Q. B. 167
R v H [1997] 1 NZLR 673
Attorney General v Puni 14 September 2007
Kumar v R [2006] EWCA 1946
R v Flattery [1877] 2 Q.B. 410
R v Bennett [1866] EngR 17; (1866) 4 F & F 1105
Plomp v R [1963] HCA 44; (1963) 110 CLR 234
Woods v Brown (1907) 26 NZLR 1312
Hyam v DPP [1974] S9 Cr. App. R 91

Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU
BETWEEN
POLICE
Prosecution
AND
LE MAMEA EMOSI PUNI male of Tiapapata, Medical Practitioner
Defendant

Counsel: P Chang and T Toailoa for prosecution

B Sellars and E Puni for defendant

Hearing: 29 – 30 May 2012 (Stay of Proceedings) and 2 – 6 July 2012

Written Submissions: 27 July 2012

Reasons for Decision: 24 August 2012

Charge: Indecent Act (x1)

REASONS FOR DECISION OF SLICER J

1. Dr Emosi Puni is an experienced and highly respected medical practitioner who specialises in obstetrics and gynecology. In July 2005 he was a partner in a clinic with both inpatient and outpatient facilities in Apia. The facility operated two wings situated at each side of a central, circular reception desk. The left wing included a scan room and an in-patient area, and the right wing included the clinic, reception, preliminary or preparatory room and the clinical examination rooms or surgeries.
2. Evidence established that an outpatient with or without an appointment would first approach the main reception desk. If he or she was not an existing client with the clinic, a form containing personal particulars would be completed by that patient; with or without the help of the receptionist. A file would be made up for any new patient. Assuming the outpatient was seeking a consultation, and depending on the nature of that consultation, he or she would be directed to the right wing and would enter a second reception room attended by a nurse. There, if necessary, the nurse would take and record preliminary data such as weight, pulse, blood pressure and the like. That data would then be recorded onto the same form as completed at the initial reception area and entered into the patient file. That file would then be placed by the nurse in a receptacle close to the door of the doctor who was to deal with the patient. The allocated medical practitioner would ordinarily, on completion of an existing consultation, take the file from the receptacle, call the name of the patient and accompany the patient into the consulting room.
3. If the attending doctor required a scan for the purpose of diagnosis or treatment, he or she would write a request form which is delivered to the radiographer, either by the patient or an accompanying staff member. Once the scan procedure had been completed, the radiographer would prepare a brief summary of any findings which was placed on the file and returned to the receptacle.
4. The consulting doctor would recover the file, either immediately or on completion of the consultation of an intermediate client, and return with the client to the consultancy room. The doctor and patient would confer and discuss any procedure which could be undertaken within the surgery or any diagnosis, further attendance and the like. In this case, the above procedure was followed.

Consulting Room

5. The consulting room was in a standard form. At one side it had the practitioner’s desk with an adjoining chair for the patient during consultation. At the far wall there was a window with curtains which were used to ensure privacy when an ‘intimate’ procedure was conducted. At the wall opposite the desk was a washing hand basin with storage cupboards. There was a movable privacy screen to enable a patient to dress and undress in comfort.
6. The examination or procedure couch was of special design suitable for gynecological procedures. It comprised drawers underneath the patient’s couch, a built-in step for access, retractable stirrups and a movable extension beneath which were drawers containing the appropriate surgical apparatus. The doctor’s chair was adjustable and wheeled, enabling the doctor to move around the room in a seated position.
7. There were spaces at both wings of the clinic which were used as waiting areas for patients and families.

The Complainant

8. The complainant was a married woman, aged 30, with two children. The Court found her to be a young, attractive woman with good physique; although taller than average. She and her husband married in 2003, had intended a ‘planned’ or ‘spaced’ family. Her first child was born in 2003. In July 2004, she decided and was fitted with an internal uterine contraceptive device (“IUCD”) to prevent contraception. She found the procedure to be relatively simple. In July 2005, she experienced discomfort, believing the device to be its cause. Changes in her body made her suspect that she could also be pregnant. She arranged for a test to be undertaken by the Family Planning Service which produced a positive result. With good cause, the complainant, on advice, believed the continued presence of the IUCD could harm her and the foetus. She and her husband decided on its removal. On 18 July 2005, she went, by appointment, with her husband and young child to the clinic.
9. The question is not whether the complainant received advice and underwent procedures at the clinic, but whether the defendant exceeded his professional duty and used the ‘examination’ for sexual pleasure and in doing so, committed an act of indecent assault.
10. On 29 July 2005, Emosi Puni was charged with the crime of Indecent Assault, contrary to the Crimes Ordinance 1961 (“the Ordinance”) section 54 (a).

Accepted Procedures

11. The prosecution called two witnesses, experienced in the practice of gynecology: Doctors John Doig and Viopapa Annandale, in support of its case.
12. Dr Doig is a gynecologist who has long specialised in obstetrics and gynecology. He gave evidence of the procedures and protocols to be undertaken in the examination and conduct of intimate procedures of female patients. He gave further evidence concerning the procedures associated with the removal of an IUCD; in particular, the Nova T. His updated report dated 18 May 2012 can be summarised as:
    • (1) He had examined the relevant file notes and history as recorded, and confirmed the advisability of the removal of an IUCD when a woman was pregnant; and
    • (2) His practice would be:
      • (a) to undertake a scan to determine any intra or ectopic pregnancy and the placement of the device;
      • (b) to obtain the consent of the patient to perform a vaginal speculum examination, locate the loop and extract the IUCD with the use of forceps; a quick and simple procedure;
      • (c) to take cervical and high vaginal swabs for routine confirmation of the presence or absence of infection or fungi;
      • (d) to do a gentle bi manual examination (two fingers inside the vagina and the other hand in a corresponding position outside of the body) to determine the presence or otherwise of cysts or other forms of mass or abnormality. A bi manual examination would also assist in the discovery of an ectopic pregnancy undetected by the scan, especially at the early stage; and
      • (e) he preferred to use stirrups for the procedure although he was aware that Dr Annandale and the majority of his colleagues did not.
13. He would expect the above consultation and procedures to take no more than 10 minutes. The removal itself would take but 3 – 4 minutes.
14. In all cases, he would offer the patient a chaperone or, if desired by the patient, provide a nurse ‘to be present during the examination in its entirety’. He stated in his evidence:

“... my college now advocates that all patients should have a chaperone available to them. In my practice ... we offer patients a form in which they are to complete their details of date of birth, full name, registration, past medical history and on the bottom of that it states that they should request a chaperone. In my consulting room I have the same sign present on my desk ... My younger colleagues all have a chaperone present. But in my early days of practice there were several of us sharing a nurse but a patient was given the opportunity, advice before she is examined that she could have a chaperone and then one was brought into the room as soon as the consultation ...”

He added that the routine was widely practiced because it involved an intimate procedure.

15. For the removal of an IUCD, the practitioner would need to use only two medical implements: the speculum to widen the walls of the vagina and provide a viewing component, and the forceps to grasp the loop attached to the IUCD which extended through the cervix to allow removal. Gel would assist with lubrication and the speculum slightly warmed for comfort.
16. Any swabs would be small and require just a touch to the tissue.
17. In his experience, the procedure could cause ‘mild discomfort at worst’. The entire procedure required the insertion of fingers to the vagina once but does not involve a repetitive movement ‘in and out of a patient’s vaginal cavity’. If a cleaning swab was required, it would be undertaken with a cotton bud and/or a sponge holder; neither of which involved finger penetration.
18. Dr Doig was cross-examined during which he answered that the chaperone requirement had been long promoted particularly ‘with the New Zealand College since the early 1980’s’. He repeated that a patient’s wish to have an IUCD removed would always be respected.
19. Dr Doig’s evidence was confirmed in every respect by Dr Annandale. She was well versed in the areas of ‘women’s health’ since her graduation from Otago University in 1964, subsequent studies in family planning in the United Kingdom in 1975 and continuous practice until her retirement in 2007. Dr Annandale, in fact, removed the complainant’s IUCD on 22 July 2005, shortly after the consultation at the clinic.
20. Dr Annandale completed the procedure of the removal and a bi manual examination within 4 – 5 minutes. She used a speculum and forceps as her only instruments. Her practice was not to use stirrups during the procedure which was completed without difficulty. Some small amount of blood was observed. Dr Annandale was not able to discern any explanation for the prior discomfort recounted by the patient. The complainant herself has experienced no feelings of discomfort since the removal of the IUCD.
21. Dr Annandale could see no reason for a speculum to be introduced into the vagina more than once. Any ‘cleaning’ could be undertaken with forceps and cotton swabs. A full cleaning or ‘fufulu’ would only be necessary following a curette or miscarriage; neither which was relevant in this case.
22. Dr Annandale stated that there was a long standing and recommended practice to invite the patient to choose a chaperone or have a nurse present during the examination of a female patient by a male doctor.
23. She doubted the necessity of the prescription of Provera (a hormone based drug) by Dr Puni to induce ‘artificial or non menstrual bleeding’ but that difference is of little, if any, significance. She had examined the clinic’s medical records and notes but found nothing in those notes which suggested that the complainant was, as of 18 July, having second thoughts about the removal of the IUCD when she found that she was not pregnant. That suggestion is belied by the fact that some day after the clinic examination the complainant went to Dr Annandale to have the device removed.

General Account

24. The complainant believed, for good reason, that she was pregnant whilst fitted with an IUCD. She was concerned, correctly, that the continued placement of the IUCD was a potential risk. At that time, she had one child and was prepared to carry the second to birth. On 18 July 2005, she went with her husband and child to the clinic intending to have the IUCD removed, and was mentally and emotionally prepared to bear her second child.
25. She went to the clinic having made a telephone appointment, leaving her husband to care for the child, who was being difficult, at the clinic whilst she underwent the procedure. It would have been difficult, if not impossible, for her husband to accompany her as a chaperone while he remained responsible for the care of a troublesome child. Nor was he asked.
26. Ms A went to the reception desk and completed the initial form providing personal particulars. She was shown or directed to the clinical reception area where she met Afatia Palamo (“Afatia”), the clinic nurse who, following procedure, checked her blood pressure, pulse rate, temperature, and weight and oxygen ratio. Afatia then placed the file in the receptacle while Ms A waited in the clinic reception area.
27. Dr Puni came out, collected the file and accompanied Ms A into his consultation room. The two discussed the patient’s condition and concerns about the IUCD and pregnancy and a general feeling of discomfort which she believed had been caused by the device.
28. Dr Puni advised that it would be preferable if she underwent a scan to confirm the pregnancy. He wrote a note authorising the scan. At trial, he claimed that he ordered but a single scan whereas multiple scans were undertaken. At trial, he said that the ‘order form’ was destroyed as a matter of course. The Court has difficulty in accepting that account and that the radiographer had not kept each form as a matter of course. The matter is of little significance since the defence concedes that multiple scans were undertaken. The matter might become relevant to credibility and will be later considered.
29. Ms A took the authorisation form to the radiographer who performed multiple scans and reported written findings, and the report returned to the clinical nurse who placed it on the file, which was returned to the receptacle.
30. The report stated:

“R/V of Ⓝ side and ecotexture

An IUCD is present in the endometrial cavity

No evidence of a G/Sac is seen within the uterus”

The report was not countersigned by Dr Puni.

31. It may be that Dr Puni dealt with another patient during that period while Ms A waited in the clinic reception area.
32. Dr Puni came out, retrieved the file and again accompanied Ms A into his consultation room. There followed a discussion. The accounts of the ensuing events are in dispute but it is common ground that the patient partially undressed behind the screen, lay on the examination couch, her feet were placed in the stirrups and the vaginal examination undertaken. The complainant contends that at some point the examination changed from a professional nature into a process of sexual gratification. The defendant denied that he did anything other than undertake a proper and routine examination. That difference will be separately considered.
33. Following the examination and some discussion, Ms A left the consultation room and was seen to be in a distressed condition. She refused to pay the account given to her at the main reception desk. The complainant returned home with her husband and child and later in the day complained to her mother-in-law about the nature of the doctor’s conduct.
34. Police were notified and on 20 July, Dr Puni was interviewed under caution and in the presence of his counsel. He denied any sexual misconduct. On 22 July, Ms A went to Dr Annandale who examined her and removed the IUCD without difficulty. Dr Annandale reported:

“...on examination I noted light bleeding from the uterus and an IUCD thread protruding through the cervix. I removed a normal shaped Nova T IUCD. No other gross abnormalities noted.”

The above summation is non controversial and not challenged by the defence in the conduct of its case.

The Complainant

35. Ms A had been married for some time and given birth to a child two years previous. She was sexually experienced and stated at trial that she was able to distinguish between clinical examination and sexual excitement and passion. She had experienced the procedure of the insertion of the device, had been the subject of intimate procedures during pregnancy and birth, and had no difficulty with the withdrawal of the IUCD by Dr Annandale.
36. Following the pregnancy test she said she made an appointment by telephone for 11:30 a.m. on 18 July. The Court accepts that she did in fact make an appointment rather than arriving (according to one account) without one. She had not asked for a doctor by name but was allocated to Dr Puni who was the clinic’s specialist in the area of women’s health. At the clinic she had left her husband and child. She underwent the preliminary procedures by Afatia and waited for Dr Puni. After an initial discussion with Dr Puni, she went for a scan and returned to discuss the options open to her. She maintained that the IUCD still made her uncomfortable. The two discussed alternate methods of contraception and she decided on the removal of the device and future reliance on oral contraception.
37. Dr Puni closed the curtains. She removed her ‘panty’ behind the screen and lay on the examination couch. Whether she used the fixed steps or got on sideways is irrelevant. Her feet were placed in the stirrups and underwent, without concern, the speculum examination. A special lamp, attached to the wall, was used as an aid to the procedure. On her version, the speculum was removed after 3 – 5 seconds; an unnecessary procedure according to Doctors Doig and Annandale.
38. Her version of events following its removal was:

“Pros okay, and then after those few seconds what happened?

Wit and then he continued on doing that movement inside and out; inside and outside of the vagina.

Pros so you felt that cold thing go inside you and then what was the next movement that you felt with that thing?

Wit I felt it coming out again but at that time, like I felt it’s going in and then out but when it comes out, you know, I don’t feel it’s cold anymore.

Pros so when it came out did you feel its coldness?

Wit no.

34. the body would have warmed it up.

Pros then it came out and then it went in again is that was you said?

Wit yes in that same moment; like when he put in, out, in, out.”

39. An object, presumably the speculum, was reinserted and she felt it again move in and out, about 5 – 6 times whilst the doctor’s hand continued to press against her stomach. She then felt his fingers moving in and out of her vagina for a considerable time which she estimated to be between 20 – 25 minutes. That estimate might be a subjective impression. She felt the outer hand removed from her stomach while the fingers continued with their movement. Initially she felt nothing untoward but became concerned about the continuation.
40. She sat up because ‘[she] knew something went wrong down there’ and because ‘the doctor changes; he’s not the person that [she’d] first seen when [she] first entered...’ She said she could see the upper part of his body. Her belief is best described in the following exchange with counsel:

“Wit it was his breath like that heavy breath. I can’t hear him breathing like that when he first started doing his job.

...

Pros and how long has he been touching you before you heard that heavy breathing?

Wit for quite a long time when he did that.”

41. She could see the doctor’s face and saw that he was shaking which she described:

“Wit bcoz of his hand that was inside of me; like his whole person was changed.

...

34. let me ask you this: could you see him shaking or could you feel his body movement shaking?

Wit I can feel.”

giving her a feeling of impropriety stating:

“Pros it’s really important for the court to understand your evidence so if you can please just describe to us, to make it easier for the court to understand, compare it to something, how you felt him shaking.

Wit at the time, I’m married; I have a baby; I know, you know, that feeling between two people making love, having sex; it was that feeling that, you know, that I can sense from him at the time that he was doing his thing.

Pros and at the same time you were feeling this, his hand was still on your vagina?

Wit that’s correct.

Pros and did you feel anything, what was different with his hand, if anything?

Wit it was shaking and that heavy breathe.

Pros so the hand was shaking?

Wit yes.”

42. She could feel the movement inside her vagina at the same time stating:

“Pros the pace: was it going faster than when he first touched you or slower?

Wit not fast, not slow but in and out, but it changes from the movement from when he first started.

Pros okay, and you’ve said that at the time of the heavy breathing his hand was still inside your vagina, how about his other hand; where was his other hand, the one that you mentioned was on your stomach; where was that hand at that time?

Wit at that time towards that his left hand wasn’t on my belly anymore.

Pros and so having sensed that and heard the breathing, what did you do then?

Wit then I sat up, I know for sure that something’s wrong.”

43. When she sat up she claimed to have seen his exposed penis ‘like the top was outside; it wasn’t tucked in and his penis was sticking out, like the bottom part of his top was like that; it was hanging on the penis like that.’ She said that the trousers were loose.
44. Dr Puni, whose version will be later recounted, said he was wearing a ‘surgical suit’ and claimed that it would have been impossible for him to undo or loosen the supporting cord with only one hand.
45. Ms A then stated in her evidence:

“then he asked me (sic), I want him to put his thing inside and he was using that word ‘thing’.”

which she took to mean his penis since he was holding it at the time. The question was repeated which she said:

“I felt shocked, sad, and unhappy; I wasn’t expecting anything like that to happen, you know; I also asked myself and 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.”

46. She had earlier been uncertain as to the identity of the ‘thing’ which presumably was the speculum but on this later occasion she believed the word referred to the penis. She replied ‘no, no that’s it; didn’t say much.’ She grabbed her underwear and when she next saw the doctor at his desk ‘his demeanor was back to normal.’ She saw the doctor writing notes but took little notice since she ‘just [couldn’t] wait to get out of the room.’ No further appointment was made. She was given a piece of paper which the Court assumes to be a prescription for Provera.
47. Ms A left the consulting room and went immediately to the main reception room and spoke with the receptionist and in a private conversation

“told her I’m not going to pay for that visit and I told her the reason why.”

and

“...that the doctor that I was seeing showed me his private part, which is completely not what I was expecting to happen in that room.”

48. The receptionist asked if Ms A wished to go back and tell Dr Puni of her complaint to which she replied:

“....no, I’m not going to go back in there; I don’t want to see his face anymore but you guys have my number, everything so you can contact me but I’m not going to pay for the visit and I’m not going to go back in there.”

49. Ms A was distressed and crying as she spoke with Tui, the receptionist who was not called as a witness at trial. The substance but not the detail of her complaint was heard by Afatia who was a witness at trial.
50. Ms A rejoined her husband and child, and returned home in a distressed state but said nothing to her husband about the events above as described.
51. Later that day, she recounted the events to her mother-in-law Ms B.
52. Ms A denied that she had ever been asked if she wanted a nurse to attend the consultation and conceded that she had not asked for a chaperone because her husband was preoccupied with their child and she had trust in the examining doctor.
53. Ms A was extensively cross-examined by experienced counsel. Some of the cross-examination was on minor details such as the date of her visit to Dr Annandale and the like. She agreed that Dr Puni had asked her to undress behind the screen.
54. She agreed that on a previous occasion she had conflict with a co-employee but said that both had cried in happiness following reconciliation. She agreed that she could cry when emotional but in the same way as average people.
55. She conceded that she had told Dr Puni about discomfort she believed to have been caused by the IUCD as well as the ‘pregnancy’ concern. It was the defence case that some of the doctor’s examination involved an attempt to find any alternate cause for that concern in addition to that necessary to remove the device. She did not recall all of the details of her discussions with Dr Puni.
56. She correctly described the second scan which involved insertion of an instrument similar to a small microphone covered by a condom. That procedure caused discomfort but not the reaction she later had with Dr Puni.
57. She agreed she had no problems with being pregnant and, in fact, wanted the removal of the IUCD to continue with the pregnancy. She denied telling the doctor that she wished to get pregnant but maintained that she wished the removal of the device because of discomfort, and had discussed the use of oral contraceptives; the latter matter corroborated by the defendant.
58. She had no recollection of any discussion about ectopic pregnancy. She was adamant that she told the doctor that she wanted the IUCD removed. She disagreed that the doctor had always used the chair during the examination; a statement later strengthened by the doctor’s own evidence that at times he was standing while conducting the examination.
59. She said that at no time was she offered a covering sheet or told that she could have a nurse present during the procedure. She was not sure if the doctor had used two gloves but was firm that fingers had been used and manipulated within her vagina, and had moved in and out rather than from side to side. She said that as a woman with sexual experience

“I sat up because breathing changed; heavy breathing and hand shaking. It was sound like a person making love ... I am a mother and I have had sex. The breathing was like that; not like someone doing sport; not like working hard ... It was a sex noise. The breathing not like person (sic). Shaking and I felt it with fingers as well”. (Judge’s notes not transcript).

60. There were a few discrepancies (mainly nuances or small details) between her statement to police of 18 July and her evidence at trial. She gave a detailed description of the penis and its position. She agreed that she was initially comfortable with the examination up until the time ‘he changed’. She maintained that she was on the examination table far longer than the 10 minutes claimed. She did not recall details of the diagram attached to the notes which was said to have been drawn after the examination. She did not see the cord around the doctor’s bottom garment.
61. In re-examination she explained the work related incident, agreed that she was thankful not to be pregnant and confirmed that Dr Puni was wearing a blue smock which was loose.
62. Ms A was an impressive witness and her evidence not shaken, except for minor matters, during extensive cross-examination.

Afatia Palamo

63. Afatia Palamo was the clinic nurse on duty during 18 July. She confirmed most of the uncontroversial evidence and remembered that Ms A appeared normal when she arrived at the clinical reception area.
64. Afatia confirmed that the clinic had no policy in relation to the examination of female patients but the general procedure was that it was the responsibility of the patient to ask for a nurse to be present at an examination. She did not tell Ms A of the policy and said that the question was one between doctor and patient. She had previously been asked to remain present during such an examination.
65. Afatia recorded the time of her preliminary examination as 11:40 a.m. which supports the complainant’s evidence that she had arrived at the clinic a little after 11:30 a.m. with time taken to complete the ‘particulars’ information form at the general reception desk. She said that Ms A had waited for about 10 minutes before entering the consulting room but did not see her enter.
66. She did not give evidence of the precise time or times when she saw the complainant crying. She later saw Ms A after the examination and saw the complainant upset and trying to wipe away tears. She heard Ms A say that she was not going to pay the bill and later saw the complainant standing alongside her husband crying.
67. Afatia said that she advised the complainant to return to Dr Puni and discuss the matter with him but the complainant refused, stating in Samoan, ‘I don’t like the doctor’s service’ (Judge’s notes). Afatia reported the incident to the defendant who replied, ‘its okay, wait until she comes back for a follow up appointment.’
68. No such appointment had been made nor one sought. No steps were taken to follow up on the unpaid account.

Evidence of Complaint

69. The conduct and statements made by the complainant could not be regarded as a recent complaint since no precise allegation of sexual misconduct was made to Afatia and could be regarded as ambiguous. Her evidence that the complainant was normal when she arrived at the clinic and her distressed state at the conclusion of the examination is cogent and relevant. The complaint made to Ms B was both ‘recent’ and specific. Ms A came to her mother-in-law’s house alone. She was crying and said she wished to reveal something. Ms A told Ms B that she saw and felt the examining doctor trembling and when she sat up she saw his penis exposed. She recounted that the doctor asked if she wanted ‘that’ put inside, to which she said no. Ms A had not told her husband, presumably through shame or difficulty in discussing the matter with a male partner.
70. The evidence is accepted as amounting to recent complaint. Ms B told her son of the conversation and the matter reported to police.
71. The law relating to the reception of complaint of evidence in sexual cases has long been settled and developed since The Queen v Lillyman [1896] UKLawRpKQB 126; [1896] 2 Q. B. 167. In New Zealand, it has been stated in detail in R v H [1997] 1 NZLR 673 and considered by the Samoan Court of Appeal in Attorney General v Puni [2007] WSSC 14 September 2007.
72. The evidence is not proof that the ‘facts complained of were true but as evidence of the consistency of the conduct of the prosecutrix with the story recounted in the witness box.’
73. Particulars of the complaint may be proved (Lillyman (supra) and Kilby v R [1973] HCA 30; (1973) 129 CLR 460).
74. It is not necessary in this case to give detailed consideration on this legal issue.

Legal Principle

75. The Court of Appeal in Puni adopted the test and conclusions stated in the English Court of Appeal in Kumar v R [2006] EWCA 1946, concerning intimate medical examinations in upholding the directions of the trial judge that in cases of this nature there were four possibilities.
    • (1) Sole intention to gain sexual gratification – Guilty.
    • (2) Sole intentional to gain clinical information – Not guilty.
    • (3) Dual intention – legitimate examination as cover with intention from the outset to gain sexual gratification – Guilty.
    • (4) Bona fide medical examination intended and so intended throughout but unintended sexual gratification obtained – Not guilty.
76. The Court in Puni considered the third and fourth possibilities but added to the question of dual intention the following at 40 – 43:

“[40] That test is just, principled and workable. Given that the respondent’s professional responsibility required him regularly to insert his fingers into the vagina of his patients, one begins with the assumption of fact that what in other circumstances would constitute the unlawful act (actus reus) of indecent assault was lawful because it was performed with the consent of the patient. If there is no actus reus there is no offence. But where the consent is to therapeutic touching and the touching is performed for reasons of sexual gratification there is no true consent. It follows that the continued touching itself is an unlawful act because it lacks consent.

[41] Turning to apply it, we have concluded that here the complainant consented to a medical procedure. But insofar as the touching was continued for the purpose of sexual gratification of the respondent and not to promote the medical health of the patient it did not carry her consent. To what extent that is proved to have happened, so that there was to that extent an unlawful act, is a question of fact for the decision-maker.

[43] The other element of the offence is of criminal intent (mens rea or guilty mind). It is satisfied if the defendant’s intent is to satisfy his sexual lust rather than to carry out a professional service for the benefit of his patient’s health.”

77. It would seem that in Kumar (supra) the Court was only required to deal with the original touching but its use of the term ‘and so intended throughout’ accords with the above statement by the Samoan Court of Appeal.
78. The dual intention test equates with the historic cases dealing with consent obtained by fraud (R v Flattery [1877] 2 Q.B. 410, R v Bennett [1866] EngR 17; (1866) 4 F & F 1105).
79. This Court will apply the proposition that although an intimate medical procedure is undertaken with consent, the change of the procedure or the intent of the medical practitioner in continuing with an unnecessary procedure or a change of purpose to one of sexual gratification constitutes an indecent assault.

The Defence

80. The defendant gave a detailed account of his dealings with the complainant in his caution statement and gave evidence at trial. In both, he denied any sexual impropriety.
81. In his caution statement, he stated that there was no written policy that a nurse accompany the doctor during an intimate examination but that there was a wide understanding that a female nurse, husband, mother or friend could be present during the examination. He told police that a doctor could ‘call the female nurses to be present during the examining of this kind of sickness’ at ‘the time when the patient is asked if he or she is comfortable. If the patient answered that everything is okay then there is no need for a nurse to be present but if they reply that they are not sure then a female nurse will be called to come inside.’ He added that it depended on the consent of the patient. He said that at no stage, until she sat up, did Ms A complain of discomfort.
82. In his caution statement he was asked:

“Q12 – Emosi, is it true if I say that you never asked his woman is (sic) she wanted someone must (sic) be present inside?

A – No, I did not asked her.”

83. He added that at no time was the patient sad or depressed, and that he ceased his intimate examination when she did sit up. His description of her demeanour is in stark contrast with her refusal to pay the account and that she was seen to be crying and in a distressed state immediately after she had left the consulting room.
84. At trial, during cross-examination, he stated that he believed his answer to Question 12 was a misunderstanding since it referred to a period after the examination. At trial, he claimed that he had asked the complainant whether she wanted someone present, before the examination. In cross-examination, he explained the answer in the following exchange:

“Pros now doctor, having heard your evidence and your answers, I put to you that in fact, at no time of your consultation did you ask [the complainant] for someone to come in or whether she wanted someone to come in, is that correct?

Wit that’s not correct.

Pros and in fact your answer that you did tell her is inconsistent with what you told the police, do you agree with that?

Wit no, I disagree.

Pros so you do not agree that what you’ve said in court is not in line or inconsistent with what you said to the police?

Wit I said to the police, I did not, at the end of our conversation but does not mean to say I didn’t offer somebody at the beginning.”

85. The complainant had given evidence that she was never asked if she wanted anyone else to be present nor had she asked if anyone else should be present. In cross-examination she agreed that Dr Puni was not aware of the presence of her husband at the clinic, although Dr Puni in cross-examination said she had told him her husband was there but made no mention of the baby.
86. The Court does not accept his explanation for his answer to Question 12 and concludes that at no time did he ask if she wanted a nurse. The complainant could not ask for her husband to be present since he was minding a troublesome child and was not told that she could have a nurse present. Nor does the Court accept that at no stage did she show any degree of mental discomfort as witnessed by Afatia. It accepts that after the examination she remained in the consulting room for some little time but her demeanour had changed immediately after the consultation; a matter partly corroborated by the defendant who described her manner after the examination as silent and withdrawn. He had stated that the complainant was not very communicative. After the examination he said her demeanour was normal with no signs of anger or ‘sadness’.
87. In his evidence in chief, Dr Puni recounted his impressive credentials and gave a general account of the clinic and its procedures. On Mondays, he would see up to twenty patients with an average consulting time of 15 – 20 minutes.
88. He said that the complainant had told him of her pregnancy and lower abdominal pain; matters which were the subject of cross-examination. He referred Ms A for an ultrasound and next saw her 30 – 40 minutes later. He claimed to have ordered a single scan; a matter already discussed. Once he had told her she was not pregnant, the two discussed alternative means of contraception and he differed from the complainant in that, on his version, she did not indicate whether she wanted the IUCD left in or taken out.
89. After the scan, he suggested that he examine her. On her version, she wished for the removal, irrespective of pregnancy. The doctor’s version of the early part of the examination, apart from the above, was similar. He used a speculum; slightly different from the one demonstrated by Dr Doig. He said he twice used large swabs, as shown to the Court, to improve his view because of blood at the cervix area. He used forceps rather than fingers to do so. He could see the string or loop. He stood up and began a digital examination. Both Dr Doig and Dr Annandale were of the view that once the loop or string had been located, the correct procedure would have been the removal by forceps. He did not do so. Instead Dr Puni performed a bi manual examination, in order to confirm that there was no ‘mass’ inside the fallopian tube or canal, indicating an ectopic pregnancy or cyst. He agreed that the patient sat up but said that he immediately removed his fingers. He said that he had inserted the speculum only once. He denied that there was anything abnormal about his breathing but he might make the sound ‘mm’ as he noted various indicators. He denied that his fingers had moved in and out, a movement similar to an act of masturbation but insisted that they moved from side to side of the vaginal wall rather than repeated insertions. His account differed significantly from the complainant.
90. He differed from Dr Annandale about the pricking of his finger on the loop or string which he described as short.
91. At the desk, he had a further discussion, prescribed Provera and drew a basic plan of the reproductive organs.
92. Dr Puni wore surgical clothes with a string around the top of the trousers. The complainant did not remember seeing the bottom half as she lay on the couch and said she had seen the exposed penis outside of the smock. The defendant said that the cord would be tied in the classic 8 method and it would be almost impossible to loosen it with one hand. The Court does not accept that contention. The simple pulling of one end would either loosen or disengage the knot. He denied any act of impropriety.
93. The defendant was extensively cross-examined. He said he had used a gauze swab for cleaning rather than a bud, as suggested by the prosecution’s medical witnesses. He conceded that it was the clinic’s policy to have a nurse present during intimate procedures and it was the clinic’s responsibility to advise the patient of that right but conceded that he was not sure if patients were aware of this. He was told that her husband was there but not that he was looking after their baby. He had asked if she wanted a person present but did not raise the question of a nurse. The first part of that evidence contradicted his statement to police.
94. In cross-examination, he denied that Ms A had asked for the removal of the IUCD no matter what. In his caution statement he had told police, ‘I told her that I am searching the reason why she wanted her family planning IUCD removed’ during the examination and after the negative pregnancy scan. At trial, he was asked:

“and the patient specifically asked you that she wanted the IUD removed, do you confirm that?”

to which he replied:

“no, I don’t confirm that.”

95. He disagreed with the suggestion that ‘it would have been easier to remove the IUD before you went on with the swabbing process’ a matter which differed from the evidence of Dr Annandale.
96. In his caution statement, he had been told of the IUCD removal as shown in the following exchange:

“Pros yes; now doctor, do you have question 11? Now the long answer that’s there; the second sentence, do you see that?

Wit yes I can see that.

Pros and in there the start of that sentence it says: sa ia taua or in other words, she mentioned; so she mentioned that she was pregnant and that’s been confirmed from the pregnancy test and that she wants to remove the IUD or the contraception that’s what you say in there, so do you agree with me that that is exactly what she said to you?

Wit that is what is written in here unfortunately I did not have a chance to read this after the interrogation as well; it sounded, as you have correctly put it, but the way that I interpreted it was that she has been referred bcoz of the danger of the IUCD to her and her baby bcoz she was pregnant but not necessarily that is what she said to me.

34. I’m sorry, I don’t understand that. The policeman says he’s taking down your answers and in fact where there’s been a mistake you’ve initialed it. Now counsel has put to you that these are the words which you used and you answered that by saying: (1) I didn’t get a chance to read it or (2) they have misinterpreted what I said.

Wit I didn’t say that they had misinterpreted what I said but it is my understanding that that is what I had said but what I had meant to say perhaps was different to what is written down here and I didn’t get a chance to perhaps have a look at it after that. I do have my signature in this bcoz I’m told to just sign here but not being able to go thru my evidence as a whole, your honor.

34. so you say that answer’s wrong?

Wit no, that answer as it is, it is correct in the way that it is written.

34. well, if that’s right she gives you 2 reasons for wanting the IUD out: (1) if she’s pregnant it should come out and (2) in any event, she was having pain and she believed it was the cause of the trouble and it still should come out so you’re given 2 reasons. Do you agree that she gave you 2 reasons?

Wit there was only 1 reason that I clearly understood, if she was pregnant your honor.

...

34. did you tell the police that she gave you 2 reasons?

Wit I didn’t tell the police that she gave me 2 reasons.

34. then that answer is wrong.

Wit that answer is wrong.

34. and the police have wrongly recorded it?

Wit sorry your honor?

34. and that the police have wrongly recorded it?

Wit they may have.”

97. A further inconsistency between the defendant’s caution statement and his evidence at trial concerned whether the complainant had given one or two reasons for wanting the removal of the IUCD namely, pregnancy and other discomfort. The significance was that it was the prosecution’s case that the continued manipulation was unnecessary and sexual, and the defendant’s claim that the further manual manipulation was an attempt to see if there were other unrelated problems. In the caution statement, the defendant had mentioned pregnancy and why she felt pain with her family planning device. Counsel approached the question by reminding the witness that the complainant had twice said she wanted it out even if she was not pregnant. The following translation was made, during trial, by the Registrar but not agreed to by the defendant was:

“I explained to her the reason why she is experiencing pain in her private parts; the reason is that part of the nylon or one end of the nylon used for her family planning is piercing part of her private part. I drew a picture to explain to her the reason and I also explained to her a method or a way and that is to make the nylon or the family planning short.”

The Court accepts the Registrar’s translation.

98. Following the translation of the question, the prosecutor returned to the point of difference including the evidence of Dr Annandale in the following exchange:

“Pros and having heard that doctor, do you agree that that is what you said to the police?

Wit that’s what’s recorded in my statement.

Pros and you agree now doctor that what you have given in court as what you would have advised is different from what you then told in your statement of what you advised?

Wit some section of it but not sections you have been referred to, I agree.

Pros so you agree that if the strings of the IUD or the strings of nylon are short its problematic?

Wit I agree with that.

...

Pros and I put to you that even though you were aware of that problem if the nylon was to be shortened you still recommended it to her, for the nylons to be shortened, isn’t that correct?

Wit I did not; I know this is what my statement said but not in that way.

Pros so again you are denying saying that in your statement and to the police?

Wit in this particular area, it’s not exactly what I said.

Pros doctor, this statement, your lawyer then was present, correct?

Wit that’s correct.

Pros and your lawyer was present from the beginning of your statement, that’s correct?

Wit that’s correct.

Pros up until the end of your statement, that is correct?

Wit that is correct.

Pros and even the time that you were given the statement to sign, it was signed before the police and your lawyer?

Wit that is correct.

...

Pros yes, you said that in your statement, so doctor, do you recall that before we had the break you were insistent that was not what you meant or that’s not what you said, do you recall that; when I read that out to you?

Wit that is what I said in here, in my statement and that is correct; however, I am saying that this has got to be taken in relation to the pregnancy and not just without the pregnancy.

Pros and when I asked you before, when I first asked you about that statement, what you in fact said in reply was: no, you did not say that; you did not read this part of your statement or this statement, isn’t that what you said to the court before?

Wit I did not read the entirety of my statement or any part of this statement; I was given this to sign; it was read to me by the police officer.”

99. The defendant then explained the difference in the ensuing exchanges:

“Pros ...so that is what you told the police, isn’t it Dr Puni?

Wit no, that’s not what I told the police; the aiga fuafuaina is the IUCD and I wouldn’t be asking why your IUCD is painful.

Pros no, no, sorry; I’m referring to the part in your statement where you said to the police: when the patient sat up and asked me what am I doing, I told her that I am searching for the reason why she wanted her family planning removed; that’s what you said to the police, isn’t that correct?

Wit [no reply].

Pros that’s what you said in your statement.

Wit yes, that’s what I said in my statement.

Pros so you do agree that you said that to the police.

Wit yeah, I said that to the police.

Pros and you do agree that that statement that you made confirms that you in fact were aware of her wanting her IUD to be removed, isn’t that correct?

Wit if she was pregnant.

Pros whether or not she was pregnant but at that time, based on what you told the police at that time, you had already known that she wanted her IUD removed, is that correct?

Wit I’m referring if she is pregnant to have her IUCD removed if she is pregnant but not without any reason.

Pros doctor, do you agree with me that what you are saying to the court now is different from what that statement means?

Wit yes, it is different from what this statement means bcoz I was purely answering questions and I was not elaborating on any answers or any details.

Pros my question is: that’s what you told the police, that: I told her that I am searching the reason why she wanted her family planning removed; that’s what you told the police.

Wit that’s what I told the police.”

100. Counsel pursued the question of accuracy and inconsistency in the following terms:

“Wit I did not read the entirety of my statement or any part of this statement; I was given this to sign; it was read to me by the police officer.

Pros so you agree doctor that you have now given 2 conflicting answers to the same question that was put to you?

Wit I don’t think that I’m giving conflicting answers.

Pros first of all, when I asked you about that first part of your statement when you indicated that you knew about her wanting to remove the IUD you said, no that’s not what you said to the police; and now you have given a different answer saying that that’s what you said to the police.

Wit let me go to the first question you are posing: my answer is in terms of her being pregnant; that is not recorded in here, if she is pregnant.

Pros and you never said that to the police when you were given your statement to sign, that’s correct?

Wit no, I did not say that to the police.

Pros thank you; but in other parts of your statement you did point out some of the things that were not correctly recorded, that’s correct?

Wit that is correct.”

101. The defendant had initialed some alterations to the record of interview which was later read to him in the presence of experienced counsel. No complaint was made as to the accuracy of its contents until trial. That in turn weakened his credibility as a witness. He maintained his contention that the examination was extensive, necessary and non sexual. He agreed that he knew ‘that she didn’t want the examination that I’ve done.’ He thought that, at the relevant time, the distance between the two bodies was about one foot. The complainant’s reaction and her reasons were questioned in the following exchange:

“Q24 – The lady now sat up and you said to her whether she wanted to put it inside. What was the lady’s reply?

A – No.

Q25 – What do you think, why did she refused?

A – I did not ask her why she refused so I leave it like that.”

102. There was one response which suggests that a professional can be tempted to ‘cross the line.’ The interviewing officer asked the defendant:

“Q32 – Were you tempted when you carried out your duties on this day where (sic) you were accused of?”

103. The translation of the answer into English was challenged and the Court accepts the Registrar’s translation as the more correct, namely:

“I have been working in this field and I say this, you are more tempted by a beautiful face rather than those things but especially at the time of a monthly period.”

104. The defendant had, at one stage, suggested that the complainant had commenced her period although in cross-examination he was less certain stating that he had seen bleeding. The complainant told Dr Annandale that her previous period had been 15 May. It is not clear why Dr Puni had prescribed Provera which is designed to induce non menstrual bleeding, if he believed Ms A was having a normal period at the time of the examination.
105. There were inconsistencies within his evidence given at trial and ones between the caution statement and that evidence. His explanations for the latter differences suggest self-interest or protection rather than a persuasive account. Those matters reflect on his credibility as a witness.

Defence based on Inconsistency

106. The defence relied also on claimed inaccuracies or inconsistencies in the complainant’s evidence as supportive of its case. It is convenient to deal with those specific issues raised and relied upon before considering the other defence witnesses.
107. The defence submitted that the complainant was an unreliable witness, claiming her evidence to be vague and lacking in detail, or in some instances stating ‘in certain and specific terms when she might not be certain or specific.’ It was further contended that she was an overly emotional person and an unreliable relater of past events and her evidence generally conflicted with other objective evidence. The specific critiques will be separately identified and considered.
     • (1) Date of Pregnancy Test

She had given the date as 15 July but had given differing dates ‘Wednesday 13 July’ to police and had been recorded by Dr Annandale as saying it was 14 July. As a matter of fact, the 13 July was a Wednesday, so if she was inventing a date for the police she got her date and day right. The variances were of little, if any, significance. It was not in dispute that she had undertaken a urine pregnancy test the previous week. Her answer given at trial was some 7 years later than the event.

(2) Nature of Examination Couch

The Court accepts that the examination couch was as described by the defendant. The complainant described it as having a space underneath. It may be that she took little notice of it as she got on simply moving into a prone position and upset at the time she left the room. In other respects, her answers such as the stirrups, her evidence differed little from the defendant on this point.

(3) Internal Uterine Contraceptive Device

The complainant had given evidence that the primary reason for the consultation and procedure was the potential harm of the device to a foetus. But she had also stated that she, rightly or wrongly, attributed its presence to discomfort. The Court accepts that she made it quite clear that she wished its removal even when she was found not to be pregnant. Her conduct the following week of having a different doctor remove the device supports rather than weakens her account.

(4) Speculum

It is not correct to say that she emphatically denied the use of a speculum. She was adamant that, at a later stage, fingers were inserted and manipulated. In her evidence in chief she stated:

“and then he asked me that question, that the thing he was going to put inside me was a bit cold ... he did put that cold thing inside of me; I don’t know what that was, all I can feel is the cold.”

She could not tell what kind of object it was.

She remained certain that an object had initially been inserted and she ‘felt its cold when it spreads’ which accords with the function and mechanics of a speculum, as described by Dr Doig.

The complainant was not medically trained and any misunderstanding of the name of an object is of little significance.

(5) Heavy Breathing

The Court accepts the evidence of the complainant of being able to discern heavy breathing. It comes within the ordinary human experience.

(6) Lighting

Lighting had little part to play in whether the complainant ought be accepted as a credible witness. The lighting varied depending on whether the curtains were open or drawn, the use of the examination light and possible overhead lighting. It was what the complainant felt, heard and experienced which is at the heart of her evidence.

(7) Clothing

The defendant said he was seated at some times during the examination and standing at others. The complainant was lying down and did not claim to have seen the bottom part of his clothing whilst she was lying on the couch. When she sat up she said she still could not see the bottom half but that the penis was erect and outside of his trousers. Accepting that the defendant was wearing ‘scrubs’ held up with a cord, tied in a figure 8 it would be easy to loosen the cord with one hand and to permit the penis to be exposed and/or stroked.

108. The Court accepts that the complainant saw the penis and the ‘clothing issue’ does not make her account unreliable or incredible.
109. The Court accepts the substance of the complainant’s version and regards 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.

Defence Witness

110. The defence called four witnesses in support of the account provided by Dr Puni. A summary of their evidence will be stated and considered.

Anita C

111. Anita had been treated by Dr Puni and told the Court that he had suggested that her husband accompany her during the intimate examination. She confirmed the procedures previously recounted and confirmed that nothing untoward had occurred. Her evidence is accepted but its import slight. Significantly, she estimated that the entire procedure and consultation had taken 15 minutes; a period far less than the estimate given by the complainant.

Luna P

112. Luna and her daughter had been treated professionally on occasions by Dr Puni since 1989 and her last treatment had occurred in 2002. Nothing untoward had occurred during her consultation with and treatment by the defendant, whom Luna had known since 1987. Her evidence is accepted but again, is of little import.

Ruby N

113. Ruby had first been treated by the defendant in 2000 and the last consultation in November 2011. She also confirmed that she was accompanied by her husband but decided that she had no need for his presence during the consultation and examination. She said that the consultation and examination took 20 minutes and nothing untoward occurred. The evidence supports the conclusion that had the complainant requested the presence of her husband, the doctor would have assented. It does not support the conclusion that the complainant was advised that she could request and obtain the presence of a nursing sister.

Valetalo’ola Ofoia

114. Valetalo’ola Ofoia (“Valetalo’ola”) had been a co-employee with Ms A, and described a work-related event during which the complainant had burst into tears. But the evidence did not establish that the complainant was psychologically unstable or overly emotional.
115. Ms A came to Valetalo’ola with a complex problem. She had fallen in love and married but her husband was working in New Zealand. The employing company had been generous to her and paid for her training. As such, it required her to stay on for a period as an employee. She had been told by personnel that she was required to stay or, if not, to refund her bond. She approached Valetalo’ola for help with her dilemma, hence her distress and tears. Valetalo’ola helped and the complainant’s sister was chosen to replace her and she was released from her bond. Ms A had arrived with tears of distress and hopelessness and left with tears of joy and hope.
116. The evidence did not support the defence suggestion that she was emotionally vulnerable and predisposed to cry for little reason. It does not explain her crying as she left the clinic.
117. During the trial, there was some disagreement concerning the use of the words ‘fafano’. The defence relied on its meaning as significant cleaning of the vagina to explain the movement described by the complainant. The nearest relevant word the Court could find was ‘fafano’ which involves a miscarriage or early birth. Such was not the case here. A secondary meaning given by Milner in his Samoan Dictionary is the washing of hands. It is not necessary to resolve the distinction since the Court is satisfied that some form of swabbing was undertaken but that digital penetration followed.

Conclusion

118. The Court found the complainant to be a cogent and compelling witness. There is no reason for it to consider the distinction between motive and intent as considered in cases such as Plomp v R [1963] HCA 44; (1963) 110 CLR 234, Woods v Brown (1907) 26 NZLR 1312 and Hyam v DPP [1974] S9 Cr. App. R 91. Here, motive is relevant to the making of the complaint. Ms A had no motive to make a false and serious allegation unless it was to avoid payment. She had no previous contact with the defendant and did not seek him out as her consulting doctor. At best, her only motive could be that she resented being roughly handled.
119. She was seen to be in a distressed condition immediately after the examination and such distress lasted a considerable time.
120. Ms A was experienced sexually, her previously experienced childbirth and the insertion of the IUCD made it unlikely that she would become so distressed over, as claimed by the defendant, a routine examination. Her sexual experience enabled her to distinguish clinical rather than aroused handling.
121. Ms A immediately refused to pay for the service and the consistency of her evidence is supported by her complaint to her mother-in-law and prompt recourse to law.
122. The defendant was not a convincing witness. Some of his evidence was internally inconsistent and, more significantly, different from his account given to police. The Court accepts the evidence of Afatia that when she reported the complainant’s distress and refusal to pay the account to the defendant, he replied that it could wait until Ms A’s next appointment; yet no such appointment had been made.
123. The defendant did not ask the complainant whether or not she wished to have a nurse present. The complainant was unable to have her husband present because of his caring for their child.
124. The defendant did not follow accepted practice.
125. The Court prefers the evidence of Doctors Doig and Annandale as to the procedures and protocols to be followed in such cases to that of the defendant.
126. The Court accepts that the procedures necessary for the removal of an IUCD were relatively simple and did not require the form of examination of the patient that was undertaken. It accepts that the defendant located the string or loop and did not attempt, at that time, to remove it.
127. That the complainant readily went to Dr Annandale days after the examination supports her contention that she wished the IUCD removed, irrespective of pregnancy and that she was not afeared of the procedure itself, if properly conducted.
128. The Court accepts that during the examination the breathing and shaking recounted by the complainant were acts of sexual arousal.

Findings

129. The test of whether an act, lawfully commenced, can become indecent, was stated in Kumar v R (2006) EWCA 1946 (C.A.) and approved by the Samoan Court of Appeal in Attorney General v Puni (supra). This Court will apply the latter.
130. The acts of unnecessary digital manipulation and exposure of the penis were, judged by the ordinary standard, indecent acts.
131. The Court finds the defendant guilty of the crime of indecent assault, contrary to the Crimes Ordinances 1961 section 54 (a) on the 18th day of July 2005.
     

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(JUSTICE SLICER)