AHMAD v R [2017] NZCA 320

AHMAD v R [2017] NZCA 320 [26 July 2017]NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS ORIDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BYS 203 OF THE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDCA406/2016[2017] NZCA 320BETWEEN MUSHFIQ AHMADAppellantAND THE QUEENRespondentHearing: 22 June 2017Court: Asher, Venning and Dobson JJCounsel: R M Mansfield for AppellantA J Ewing for RespondentJudgment: 26 July 2017 at 3 pmJUDGMENT OF THE COURTA The application for leave to adduce further evidence is declined.B The appeal against conviction is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Venning J)[1] Following a Judge alone trial in the District Court at Manukau Dr Ahmad was convicted of six counts of indecent assault.1 The offending was against six victims.1 R v Ahmad [2016] NZDC 9885.Judge Earwaker sentenced Dr Ahmad to 12 months' home detention and ordered himto pay $12,000 by way of reparation for emotional harm.2[2] Dr Ahmad appeals against conviction. He does not appeal against sentence.Background[3] In February 2014 Dr Ahmad was asked to provide medical certificates for a number of temporary female workers at a factory to confirm they were free of infectious diseases. The certificates were a requirement of the Russian market to which the food produced at the factory was to be sent.[4] Dr Ahmad examined a number of young women from the factory. Severallater complained about Dr Ahmad's examinations. Ultimately Dr Ahmad faced11 charges from 11 complainants. All had been subjected to a physical examination. Most said Dr Ahmad had squeezed or poked their breasts with his hands. A number of them also described other inappropriate touching.[5] The trial ran for 10 days during April 2016. Judge Earwaker delivered his judgment on 2 June. He found that Dr Ahmad had indecently assaulted six of the complainants.3Grounds of appeal[6] Mr Mansfield (who was not trial counsel) raised three grounds of appeal for Dr Ahmad:(a) fresh, credible and cogent evidence is available which impacts on the safety of the convictions;(b) trial counsel erred in not leading this evidence; and(c) the Judge erred in rejecting the defence evidence.2 R v Ahmad [2016] NZDC 15438.3 The Crown offered no evidence in relation to one complainant. Dr Ahmad was discharged on that count. The Judge also found Dr Ahmad not guilty on four of the remaining 10 counts.[7] The appeal is to be determined under s 232 of the Criminal Procedure Act 2011. Mr Mansfield argued that the Judge erred in his assessment of the evidence to the extent a miscarriage of justice has occurred, or that, generally a miscarriage has occurred.4 This Court has confirmed that consideration of whether there has been a miscarriage under s 232 will generally not require a materially different approach to that which applied under s 385 of the Crimes Act 1961.5 The test remains, has the identified error created a real risk the outcome of the trial was affected. In this case the first issue is whether the new evidence discloses an error with the trial process.The new evidence[8] All the appeal grounds rely on the new evidence which Dr Ahmad seeks to have admitted for the appeal. The evidence falls into the following categories:(a) Affidavits from former patients or people who have worked with Dr Ahmad in his practice. All confirm that they neither experienced nor observed anything inappropriate in his behaviour.6(b) Affidavits from medical practitioners who discuss their knowledge of Dr Ahmad and how they would conduct patient examinations.7 It also includes two affidavits of Professor Gorman in response to the expert evidence called by the Crown from Professor Arroll.(c) Dr Ahmad's sworn affidavit which sets out the advice he received from trial counsel, Mr Wicks QC.4 Criminal Procedure Act 2011, s 232(2)(b) and (c).5 Wiley v R [2016] NZCA 28, [2016] 3 NZLR 1 at [30] and [56]. For a discussion of the application of s 385 of the Crimes Act 1961 see R v Owen [2007] NZSC 102, [2008] 2 NZLR 37; and R v Sungsawan [2005] NZSC 57, [2006] 1 NZLR 730.6 There are seven affidavits from either former or existing patients. There is an affidavit from a medical student who spent time at the practice. There is an affidavit from the General Manager of an NGO, which referred 25 midwifery students to Dr Ahmad for examinations. There is also an affidavit from a person who worked in the factory with the complainants. When she was examined there was another female present. Also in this category is the recent affidavit of a private investigator attaching a statement from a worker from the factory where the complainants worked.7 Dr Allan Moffitt and Dr Glennis Mafi.[9] The Crown has filed two affidavits from Mr Wicks in reply.Principles relating to the admission of evidence on appeal[10] R v Bain remains the leading authority on the admission of evidence on appeal.8 In that case this Court said:[22] An appellant who wishes the Court to consider evidence not called at the trial must demonstrate that the new evidence is (a) sufficiently fresh, and (b) sufficiently credible. Ordinarily if the evidence could, with reasonable diligence, have been called at the trial, it will not qualify as sufficiently fresh. This is not an immutable rule because the overriding criterion is always what course will best serve the interests of justice. The public interest in preserving the finality of jury verdicts means that those accused of crimes must put up their best case at trial and must do so after diligent preparation. If that were not so, new trials could routinely be obtained on the basis that further evidence was now available. On the other hand the Court cannot overlook the fact that sometimes, for whatever reason, significant evidence is not called when it might have been. The stronger thefurther evidence is from the appellant's point of view, and thus the greaterthe risk of a miscarriage of justice if it is not admitted, the more the Court may be inclined to accept that it is sufficiently fresh, or not insist on that criterion being fulfilled.[26] It can therefore be seen that there are in substance three screens or controls which the Court applies in a further evidence case. The first is concerned with freshness, the second with credibility, and the third with whether the new evidence is such that it might reasonably have led to a finding of not guilty if called at the trial. If the appellant can satisfy the requirements inherent in each of these three controls, the question whether the further evidence does lead to a reasonable doubt is a question not for the appellate Court but for a new jury at a second trial which the Court will ordinarily order, unless for some good reason, pertaining to the nature of the new evidence or otherwise, the Court in its discretion decides not to order a new trial.[11] If the evidence is fresh, credible and cogent then generally it should be admitted and almost invariably an appellate court would find that a miscarriage of justice occurred.9[12] More recently, in R v Lundy the Privy Council confirmed that the stronger the further evidence is, the more likely it is to be admitted whether or not it can be8 R v Bain [2004] 1 NZLR 638 (CA).9 Witehira v R [2011] NZCA 255 at [40].described as fresh.10 The new evidence should be admitted if the interests of justice require it:[120] The Board considers that the proper basis on which admission of fresh evidence should be decided is by the application of a sequential series of tests. If the evidence is not credible, it should not be admitted. If it is credible, the question then arises whether it is fresh in the sense that it is evidence which could not have been obtained for the trial with reasonable diligence. If the evidence is both credible and fresh, it should generally be admitted unless the court is satisfied at that stage that, if admitted, it would have no effect on the safety of the conviction. If the evidence is credible but not fresh, the court should assess its strength and its potential impact on the safety of the conviction. If it considers that there is a risk of a miscarriage of justice if the evidence is excluded, it should be admitted, notwithstanding that the evidence is not fresh.[13] In Pora v R the Court referred with approval to the above passage fromLundy.11 The Privy Council admitted the medical evidence from specialist doctors. While the evidence was not fresh since it could have been obtained with due diligence before trial, it was plainly credible and could be critical in the assessmentof whether Mr Pora's confessions could be relied upon.12[14] We return to consideration of the proposed evidence in this case. For present purposes we accept the evidence from nurses and other people who worked with Dr Ahmad and former patients who had been examined by Dr Ahmad is credible. But the evidence is not fresh. It could have been obtained for the trial.[15] It is therefore necessary to assess the strength of the evidence and its potential impact on the safety of the convictions in this case.[16] The evidence from nurses and other people who have worked with Dr Ahmad, to the effect that they have not experienced or observed anything untoward, is of very limited relevance to the trial issue. Offending such as that alleged against Dr Ahmad does not generally occur in the presence of others. Thefact that the proposed witnesses did not observe anything untoward in Dr Ahmad'sactions when he was in their presence is not of material assistance on the issue of whether he offended when alone with the complainants in this case.10 Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273 at [119].11 Pora v R [2015] UKPC 9, [2016] 1 NZLR 277 at [40].12 At [40].[17] In general terms, the evidence of other patients who were not indecently assaulted by Dr Ahmad could be potentially relevant as propensity evidence.13 It may tend to prove that Dr Ahmad was less likely to have indecently assaulted the complainants.[18] The evidence of other patients who have been examined by Dr Ahmad and who had no concerns about those examinations falls into two categories: general patients who have known Dr Ahmad for some time; and the two witnesses who worked at the same factory as the complainants (including the statement from one interviewed by a private detective).[19] There are two factors which reduce the significance of the evidence of the first category of patient witnesses. First, unlike Dr Ahmad's existing patients, thecomplainants in this case were not regular patients with knowledge of what to expect but were young women workers from a Pacifica background, some of whom had difficulty with English and who had no knowledge of what type of examination they would be subjected to.[20] The Judge was aware of this. He noted Dr Ahmad's examination of thecomplainants had features which distinguished their examinations from that of even normal casual or one-off patients.14 The complainants were not sick and attending for a particular reason, nor was it their choice to be examined by Dr Ahmad. They had been required to attend his clinic and submit to the examination by their employer.15 Further, and as the Judge observed, none of the complainants had a detailed knowledge of what the examination to be undertaken by Dr Ahmad entailed.16 We agree with the Judge's assessment that Dr Ahmad's existing patientswere in a different category.[21] Next, the use of such evidence was considered by the defence at trial and an informed decision was made not to call it. In preparation for the case Dr Ahmad provided Mr Wicks and assisting counsel, Ms Moala, with contact details of people13 Wi v R [2009] NZSC 121, [2010] 2 NZLR 11.14 R v Ahmad DC Manukau CRI-2014-092-008719, 2 June 2016 at [45].15 Strictly, as they were temporary workers they were required to attend at the request of Solutions Personnel, which supplied temporary workers to the factory.16 R v Ahmad, above n 14, at [46].who could attest to his good character and conduct as a doctor. Counsel met withthree women from a similar ethnic background to the complainants: Sato'a Lutu,Tumuapotopoto Tagiloa and Tagasia Liko.17[22] Mr Wicks briefed the three witnesses referred to. But when the Crown advised him during the course of the trial that the alleged propensity relied upon was to be defined narrowly, namely that Dr Ahmad had a propensity to indecently assault young women who consulted with him on a one-off basis for work place assessments, he reviewed the proposed defence evidence. Mr Wicks considered that the witnesses were not in a sufficiently similar category of patient to the complainants so as to counter the propensity contended for. He considered that in the circumstances their evidence would not have been given much weight by the trial Judge. Mr Wicks says he discussed that with Dr Ahmad at Court. The doctoraccepted his advice not to call the witnesses.[23] We agree with Mr Wicks' assessment that the proposed witnesses would nothave been of much assistance to Dr Ahmad for the reasons he discussed with Dr Ahmad. For the same reason, the proposed new evidence of more of Dr Ahmad'sregular patients is of very limited value.[24] The evidence of the person who worked in the factory with the complainants is also of limited relevance. Unlike the complainants she was a regular patient of Dr Ahmad. Further, she says that whenever she was examined by Dr Ahmad he always had another female present. That was not the case of the examinations of the complainants. The last proposed witness in this category gave a statement to a private investigator. Like the complainants, she was sent for an examination with Dr Ahmad before taking up employment at the factory. She said that the doctor did not touch her on her breasts or any places like that and that while she felt uncomfortable because he was a man she did not feel uncomfortable because of how he was touching her and she thought nothing of it after the examination. This proposed evidence is in general terms and it is not in affidavit form. It is of limited value particularly where, as here, the Judge was prepared to find four of the charges not proved in any event.17 Ms Lutu is one of the deponents for the appeal.[25] Importantly, when assessing the strength of the evidence from these proposed witnesses as propensity evidence, it is relevant that the Judge recorded and did notreject Dr Ahmad's evidence that he regularly saw casual or one-off female patients in the course of his practice.18 The doctor said he estimated he had seen approximately 1,000 such patients between 2007 and 2014. The Judge recorded Dr Ahmad'sevidence that there had never been a complaint or any issue raised about his treatment of such patients or his examination of patients previously.[26] In addition to Dr Ahmad's evidence, there was also the evidence of hispractice nurse, Ms Gurjit Kaur, who confirmed that over the years she had worked atDr Ahmad's practice there had been a number of casual patients who had visited theclinic without any issues or complaints being raised.[27] So to the extent past good character was relevant there was evidence of itwhich the Judge did not query. The proposed evidence from the "new" witnessesadds little to that evidence. It is not fresh and lacks sufficient weight to be admissible.[28] We turn to the medical evidence. The first is Dr Mafi's evidence. Dr Mafi is an experienced doctor who has worked with Pacific Islanders both in New Zealand and Tonga. Dr Ahmad and she are in the same peer group. She confirms that Dr Ahmad regularly attends the peer group. She considers him to be fully committed to general practice and upholding its standards. She says he is a family man and hasstanding in his ethnic and religious community. While she is a doctor, Dr Mafi's evidence is largely of Mr Ahmad's character. Again, it is not fresh and lackssufficient weight to be admissible.[29] Dr Moffitt is an experienced general practitioner, who has served as a clinical adviser and director of Primary Care for Counties Manukau DHB for a number of years. He has known Dr Ahmad for more than four years. Dr Moffitt says that in performing employment medicals, and particularly where infectious diseases needed to be excluded, he would routinely perform a physical examination which would include a chest and cardiovascular exam, an abdominal exam, excluding lymph node18 R v Ahmad, above n 14, at [45].enlargement, and a neurological screen by observation. He says he would notroutinely perform a breast or genital examination. Dr Moffitt's evidence is relevantto consideration of the type of examination carried out by Dr Ahmad, a matter thatProfessor Gorman's evidence was also directed to.[30] Mr Mansfield relied in particular on the evidence of Professor Gorman. Professor Gorman is a Professor of Medicine at the University of Auckland and a specialist in occupational medicine. For the purposes of the appeal Dr Ahmad has obtained two affidavits from Professor Gorman. In his first affidavit Professor Gorman gives evidence about two issues, memory and the validity of recall and general practice concerning examinations carried out by Dr Ahmad on the complainants.[31] Professor Gorman's opinion evidence that memory is highly fallible andrecall is often flawed is not admissible. As this Court has said before, jurors and judges know how memory works and stages of acquisition, storage and recall are common sense.19 Jurors and judges can evaluate for themselves the possibility that memory has been contaminated by external influences.20 To the extent memory is a matter of ordinary human experience, expert evidence is not substantially helpful and so is inadmissible.21 To the extent Professor Gorman seeks to go further andsays that "the recalled evidence of people, who were assessed by Dr Ahmad, of his physical appearance, is completely flawed", the evidence is effectively a submissionand should not have been included in the affidavit. It is inadmissible.[32] However, Professor Gorman went on to say that in his opinion, while the health surveillance process undertaken by Dr Ahmad did not conform to occupational medical best practice it was unquestionably usual practice. He concluded that Dr Ahmad's physical examination of the complainants, while perhapsunnecessary, was consistent with what the great majority of his relevant peer group would have done.19 McLachlan v R [2014] NZCA 462 at [34].20 B (CA196/2010) v R [2011] NZCA 654 at [22] and [43].21 Evidence Act 2006, s 25.[33] At trial the Crown had led expert evidence from Professor Arroll, a professor of general practice. Professor Arroll gave evidence that:(a) it was unnecessary to auscultate (to listen to) the heart as part of a general medical examination to assess fitness for work;(b) it was best practice when checking for infectious diseases to ask a patient to strip down to their underwear; and(c) it was unnecessary to touch the vast majority of marks or blemishes that may be present on a patient. If touching was required it would be with a glove.[34] Mr Mansfield submitted that Professor Gorman's evidence was important. Itanswered the Crown submission, made in reliance on Professor Arroll's evidence,that Dr Ahmad did not need to carry out a stethoscope examination to listen to the heart and had only done so in order to provide an opportunity to offend against the complainants.[35] Mr Mansfield referred to [66] and [67] of the Judge's reasons for verdicts.The Judge said:[66] In considering Dr Ahmad's evidence and the examination heconducted, I have also taken into account the evidence of Professor Arroll who gave expert evidence on behalf of the Crown. Professor Arroll's evidence was important for two reasons firstly:(a) The examination, as made clear from the medical certificate to be signed by each complainants and Dr Ahmad, was to screen for infectious diseases in the context of food manufacturing and handling. Professor Arroll was of the opinion that, as the heart is an internal organ, it is not possible to get a contagious infection from the heart. Therefore, a stethoscope examination of the heart was not necessary.(b) In checking a patient's skin for infectious diseases, Professor Arroll said that a doctor would normally request a patient strip down to their underwear so all of the skin could be examined. There would then be a visual examination of the feet between the toes, up the legs, abdomen, front, back, head, hands, all the exposed skin.[67] Dr Ahmad disagreed with Professor Arroll that a heart examination was not required to screen for infectious diseases. However, I did not find his answers convincing or persuasive. Further, the visual examination of the skin indicated by Professor Arroll as being required was not the subject of the focus in the examinations conducted by Dr Ahmad.[36] Mr Mansfield submitted there was "a poisonous thread" running through the Judge's reasoning which arose from the Judge's reliance on Professor Arroll's evidence and which ultimately led the Judge to reject Dr Ahmad's evidence.[37] Mr Mansfield argued that in the absence of evidence from an expert like Professor Gorman the trial Judge was left with no evidence to contradict or balanceProfessor Arroll's evidence. He submitted the evidence of Professor Gorman wascredible and cogent.[38] Professor Gorman swore a second affidavit on 16 June 2017 for the purposes of the appeal. In it he repeated his earlier opinion that the vast majority of general practitioners would listen to the heart as part of a general examination to assess fitness for work. He also discussed Dr Ahmad's approach to the examinationincluding the use of the stethoscope in more detail.[39] On the other aspects of Professor Arroll's evidence Professor Gorman agreedthat it was best practice to have patients strip to their underwear for examinations such as these but noted it was not general practice. He also agreed with Professor Arroll that while it was best practice to use gloves to touch blemishes or marks, many general practitioners would not do so.[40] However Professor Gorman also went on to discuss a number of the factors relied on by the Judge to reject Dr Ahmad's evidence. In his words he addressed "aspects of the evidence that are apparent from the reasons for the Judge's verdicts and to which [he had] been directed by Counsel for Dr Ahmad for comment". Hethen engaged in a critique of the Judge's reasons for rejecting Dr Ahmad's evidence.[41] In doing so, Professor Gorman has gone beyond the permissible limit of expert opinion evidence. The evidence is more in the nature of submission than expert evidence. The evidence does not substantially help the fact finder understandother evidence nor to ascertain any fact of consequence to the proceeding. It is not admissible.[42] The main relevance of Professor Gorman's evidence is his opinion that mostgeneral practitioners would have examined the complainants in this case using a stethoscope as Dr Ahmad said he did. But given the context of the issue at trial, which was whether Dr Ahmad had indecently assaulted the complainants as they described or not, the difference between Professor Arroll and Professor Gorman on this issue of the use of a stethoscope is not material.[43] The difference between Professor Gorman and Professor Arroll's evidence onthe issue is limited. While Professor Arroll was definite in his evidence that it was unnecessary to use a stethoscope, he went on to describe how an examination with astethoscope would be dealt with. Under Mr Wicks' cross-examination he accepted that he could not rule out accidental touching during the course of a stethoscope examination:Q. You can't rule out some inadvertent or accidental touching of thepatient's breast in the area where you're using the stethoscope, isthat fair summary of what you say?A. Yes, it's cursory.Q. Yes, exactly.A. Yeah.Q. And you talked about the mitral area. What about in relation to thetricuspid area? You can't rule out that inadvertent or accidental cursory touching of the patient's breast area by the hand that's usingthe stethoscope?A. Probably only in a woman who had a very large breast tissue, yeah. But much — not the same issue as with the mitral area.Q. You've spoken earlier about the, a doctor potentially using the right hand on the stethoscope and the left hand to move the patient's leftbreast upwards to enable contact with the body. A doctor may also do that with the hand using the stethoscope. Put it in the general region and just push with it to move the breast a little bit to get the access or the contact required, correct?A. Possibly, yes.[44] The focus of the trial was on the conflict between Dr Ahmad and the complainants. On the point of differences between Professor Gorman and Professor Arroll, whether it was necessary to listen to the heart (and use a stethoscope) three of the six complainants whose complaints were upheld denied that Dr Ahmad used a stethoscope. Two of three who accepted he used it said he used it at a different stage of the examination to when the alleged indecent assaults occurred. Agreement was reached during trial on an admitted facts document pursuant to s 9 of the Evidence Act 2006 which identified that Dr Ahmad accepted that if the touching described by the complainants took place it would not be a legitimate medical examination. The defence position was the touching did not occur. Dr Ahmad confirmed his instructions to Mr Wicks to sign the admitted facts document.[45] In summary, the issue at trial was not whether the clinical physical examination using a stethoscope was necessary but whether in the course of the examinations Dr Ahmad carried out he had indecently assaulted the patients. On that basis the new evidence from Professor Gorman is not sufficiently cogent to be admissible.Trial counsel error[46] In a related submission, Mr Mansfield submitted that Mr Wicks should have briefed an expert such as Professor Gorman to be ready to respond to Professor Arroll's evidence if necessary, and then, as the trial proceeded, should have called the expert to respond to Professor Arroll's evidence.[47] In his first affidavit Mr Wicks noted that prior to the commencement of the trial Professor Arroll's proposed evidence was uncontentious in terms of the natureof proper medical examinations. The same applied to his evidence as to changes to clinical computer records. The contest at the trial was to be about the statements made by Dr Ahmad and his described physical actions in the course of the examinations of the complainants. On that basis Mr Wicks did not consider itnecessary to review Professor Arroll's proposed brief of evidence with a defenceexpert.[48] The Crown then proposed a revised brief of Professor Arroll's evidencewhich for the first time suggested there was no need to examine the heart in order to screen for infectious diseases. Dr Ahmad did not accept that as correct. Again Mr Wicks took the view the issue was not a significant one requiring an expertresponse because Dr Ahmad's defence was founded on his belief that he wasrequired to conduct a physical examination of the women which as a matter of routine would include checking the heart using a stethoscope.[49] There is a further point. The Crown prosecutor also disclosed a brief from asecond expert, a Dr Sue Hancock. Dr Hancock confirmed Professor Arroll's viewthat it was not necessary to conduct a stethoscope examination of the heart when screening for infectious diseases. On the basis there was no defence expert the Crown agreed not to call Dr Hancock.[50] Dr Ahmad accepts that Mr Wicks provided him with Professor Arroll's briefof evidence and that he provided Mr Wicks with responses in writing to that evidence. He also accepts that Mr Wicks' cross-examination of Professor Arroll wasbased on his instructions on Professor Arroll's brief and evidence during trial. He recalls an early discussion as to whether Professor Arroll's proposed brief ofevidence should be reviewed by a suitably qualified expert but says Mr Wicks'advice was that it was not necessary to do that and the better course was to challengethe individual complainant's credibility and reliability. Mr Wicks took the view ifwhat was being asserted by the complainants was accepted by the Court it could not be said that those asserted actions were part of a legitimate consultation. Dr Ahmad says he accepted that advice and the proposition put to him in support of it.[51] However, Dr Ahmad now says that he did not appreciate that it was suggested the examinations he conducted were being criticised by Professor Arroll as unnecessary or that the Court may consider that relevant. He says if he had then expert evidence would have confirmed that what he did during the consultations was appropriate and medically necessary or certainly not contrary to generally accepted procedures for such consultations.[52] Mr Mansfield submitted that Mr Wicks' failure to have an expert likeProfessor Gorman ready to call to respond to Professor Arroll's evidence was anerror.[53] In Fairburn v R, the Supreme Court suggested that where the unheard evidence has not been adduced at trial as a consequence of serious error by trial counsel it should be regarded as fresh.22 The appellant should not be prejudiced if the absence of the evidence in question is not his or her fault.23[54] In Lundy the Privy Council doubted it was correct to regard evidence as fresh if it was not led at trial because of counsel error.24 The Privy Council took the view the evidence should be submitted to the same sequential testing that should be applied to all species of new evidence.25[55] Whatever approach is adopted, we are satisfied that the evidence of Professor Gorman should not be admitted on the basis of trial counsel error. It is not fresh in the sense discussed by the Supreme Court in Fairburn as it cannot be said that Mr Wicks made a serious error in not calling evidence such as that of Professor Gorman. In our view, Mr Wicks correctly identified the trial issue and focussed on it.[56] In R v Sungsawan the Supreme Court confirmed that to allow an appeal on the ground of trial counsel error there must be a real risk that counsel error affected the outcome by rendering the verdict unsafe.26 In Wiley v R this Court considered the position under s 232.27 While it declined to be specific about the types of errors that may render a trial unfair under the predecessor to subs (4)(b) in obiter comments the Court noted that trial counsel error on a fundamental matter might be sufficient.28[57] We are not persuaded that Mr Wicks' advice to Dr Ahmad on this issue was inerror, let alone a serious error. It was a judgment call that was open to counsel. It22 Fairburn v R [2010] NZSC 159, [2011] 2 NZLR 63.23 At [33].24 Lundy v R, above n 10, at [125].25 At [126].26 R v Sungsawan, above n 5, at [70].27 Wiley v R, above n 5.28 At [67]. See also Hall v R [2015] NZCA 403.was discussed with Dr Ahmad who accepted Mr Wicks' advice at the time. Therewas no error on a fundamental matter in this case. It cannot be said that callingProfessor Gorman to give evidence for the defence could have led to a differentoutcome.Did the Judge err in rejecting the defence evidence?[58] In rejecting Dr Ahmad's evidence Judge Earwaker relied on a number of factors in addition to Professor Arroll's evidence that it was not necessary to listen tothe heart to screen for infectious disease. The Judge identified the following factors to support his rejection of Dr Ahmad's evidence that he had not indecently assaultedthe complainants:(a) The Judge rejected Dr Ahmad's evidence that he did not read an emaildated 12 February 2014 sent by the personnel consultant which had an attachment that confirmed the assessments could be based on an interview and a health questionnaire and that a clinical examination was unnecessary unless there was reason to believe that a condition of concern might exist.29(b) The Judge considered Dr Ahmad had added the word "clinically" toeach of the standard medical certificate forms because Dr Ahmad wasaware that a clinical examination was unnecessary. In the Judge'sview he did so to provide justification to physically examine the women rather than limiting his assessment to a review of the questionnaire.30(c) The Judge did not find Dr Ahmad's answers convincing or persuasiveon the issue of whether a heart examination was required to screen for infectious diseases. Also he considered that the visual examination of the skin that Professor Arroll said was required was not the focus ofDr Ahmad's examinations.3129 R v Ahmad, above n 14, at [59].30 At [65].31 At [67].(d) The Judge did not find the reasons Dr Ahmad gave for altering his medical notes convincing.32(e) The Judge considered that when giving evidence Dr Ahmad was dramatising for effect. He concluded that Dr Ahmad's lack ofwillingness to make concessions or accept obvious propositions also detracted from his credibility.33[59] Mr Mansfield submitted that the Judge erred in his assessment of the evidence to such an extent that a miscarriage of justice has occurred. The approach to such a challenge on appeal was recently summarised by this Court in Roest v R.34The Court summarised the existing authorities as follows:[55] In Owen v R the Supreme Court confirmed that a verdict will be unreasonable if, having regard to all the evidence, the jury could not reasonably have been satisfied to the required standard that the accused was guilty. The Supreme Court endorsed the following aspects of this Court'sdecision in R v Munro:(a) The appellate court is performing a review function, not one of substituting its own view of the evidence.(b) Appellate review of the evidence must give appropriate weight to such advantages as the jury may have had over the appellate court. Assessment of the honesty and reliability of the witnesses is a classic example.(c) The weight to be given to individual pieces of evidence is essentially a jury function.(d) Reasonable minds may disagree on matters of fact.(e) Under our judicial system the body charged with finding the facts is the jury. Appellate courts should not lightly interfere in this area.(f) An appellant who invokes s 385(1)(a) must recognise that the appellate court is not conducting a retrial on the written record. The appellant must articulate clearly and precisely in what respect or respects the verdict is said to be unreasonable and why, after making proper allowance for the points made above, the verdict should nevertheless be set aside.32 At [72].33 At [77].34 Roest v R [2013] NZCA 547, [2014] 2 NZLR 296.[56] The authorities establish that the verdict of a judge sitting alone in a criminal trial is to be treated for appeal purposes as the equivalent of the verdict of a jury. It has been posited that, where full reasons are given by thejudge, an appellant may have the advantage of a "fuller" appeal.Nevertheless, as this Court said in Jeffries, the statutory ground of appeal remains the same and, generally speaking, the court on appeal does not retry the appellant on the facts. We acknowledge, however, that where full reasons are given, an appellate court is in a better position to assess thejustification for, and correctness of, the judge's verdicts than in a jury case.(Footnotes omitted.)Was the Judge wrong to reject Dr Ahmad's evidence he did not read an email dated12 February 2014 with the attachment confirming clinical examination was unnecessary?[60] There were two sets of documents forwarded through the personnel companyto Dr Ahmad's practice. The email of 12 February requesting a quotation on the costof the consultation attached instructions regarding the extent of the consultation required. The email of 13 February attached a copy of the standard form medical certificate required in each case.[61] Although Dr Ahmad initially seemed to suggest that he had not seen the medical certificate form before he saw the particular patients, he accepted during cross-examination that he would "most probably" have seen it before commencingthe examinations. However he maintained that he had not seen the attachment to the email of 12 February.[62] Ms Khan, Dr Ahmad's receptionist, was a Crown witness and gave evidence on this issue. She said she had printed both emails from the personnel consultant together with the attachments but had only shown the medical certificate to Dr Ahmad. She was not able to offer any reason why she would not have shown Dr Ahmad the written instructions for the medical examination which was necessary to enable him to provide a quotation for his services. Ultimately she accepted that she would have discussed the contents of the document which confirmed theassessment could be based on an interview and public health questionnaire withDr Ahmad.[63] It is unlikely that Ms Khan would have shown Dr Ahmad one of the relevant attachments, but not the other. There was no apparent reason for her to have givenDr Ahmad one attachment but not the other. Both were relevant and for Dr Ahmad'sattention. She accepted the material in the first attachment was intended for thedoctor's consideration. It was supplied in response to Dr Ahmad's request to enablehim to provide a quote.[64] The Judge described Ms Khan as uncomfortable and evasive when pressed on the point and considered she was endeavouring to assist Dr Ahmad.35 We agree withthe Crown submission that the Judge was entitled to reject Ms Khan's evidencegiven her potential bias, her evasive demeanour and implausible account of events. It was open to the Judge to find that Ms Khan had provided the attachment to Dr Ahmad and to reject Dr Ahmad's evidence that he had not seen the email dated12 February and its attachment.Did the Judge err in finding Dr Ahmad added the word "clinically" to each of thestandard medical certificates to justify his examination?[65] There is no dispute that Dr Ahmad added "clinically" to each of the medicalcertificate forms. Dr Ahmad said he added it to reflect the fact he had conducted aphysical examination. Mr Mansfield challenged the Judge's finding that Dr Ahmad added "clinically" to justify his examination of the women. We consider thesignificance of the addition is that it confirms Dr Ahmad was aware that the standard certificate form did not contemplate a physical examination would be required. Thatreinforces the Judge's finding that Dr Ahmad took advantage of the unnecessaryphysical examinations to indecently assault some of the complainants. The finding was open to the Judge.Did the Judge err in finding Dr Ahmad's evidence on the issue of whether a heartexamination was required to be unconvincing?[66] The significance of this issue is not the difference in opinion betweenProfessor Arroll on the one hand and Dr Ahmad's practice on the other hand(supported by Professor Gorman) about whether an examination of the heart with a stethoscope was necessary or not. Rather the significance is in the unsatisfactory way Dr Ahmad explained why he undertook such an examination in this case.35 R v Ahmad, above n 14, at [63].Dr Ahmad was clearly uncomfortable with the questioning directed to him about the issue. He initially suggested he had conducted a check of the heart as a good doctor. Then the following exchange took place:Q. There's no reference in this document to a heart check beingrequired?A. No. There's no reference.Q. You'd agree with Professor Arroll that a heart check is not requiredfor screening for infectious diseases?A. Ah, I think I would put that question more to a, Mmm, a person, Mmm, you know like who does infectious diseases rather than, ah, Dr Bruce Arroll.Q. You're a GP —A. Yeah.Q. And he's a GP isn't he?A. Yeah, yeah. I would, I would, I would still do a heart check up in patients with infectious diseases.Q. Would you agree with Professor Arroll that the heart can getinfection, but it can't give infections?A. This is, this is a debatable question here. Heart can get infections and, well, heart is an internal organ, that's very right, but at the sametime where did heart get the infection from? That, that is the question, where did heart get the infection from, that is important then, will this infection go somewhere. Where the heart got infection, the person is told whether the heart got the infection fromthe person's boil, whether the heart got infection from person's, um,mmm, internal, you know, like he had a TB, tuberculosis or where the heart got the infection from, the person had pneumonia.[67] Dr Ahmad was essentially unable to offer any clinical reason why examining the heart was necessary to screen for infectious disease. The Judge was entitled totake into account Dr Ahmad's unsatisfactory evidence on the issue when assessinghis credibility overall.Did the Judge err in his finding that the reasons Dr Ahmad gave for altering his medical notes were unconvincing?[68] Dr Ahmad sought to support his evidence concerning his examination of the various complainants by referring to his records of the examinations. That approach however relied on the records being accurate. Dr Ahmad admitted that he made a number of alterations to the records.[69] The evidence establishes that Dr Ahmad altered his electronic recordsrelating to a number of the complainants' examinations on 20 and 21 February 2014and also on 16 June 2014. The alterations followed the initial police complaintwhich was made on 19 February 2014. Dr Ahmad accepted the alterations weremade after he became aware of the complaints. It is relevant that one of thealterations Dr Ahmad made to the notes is the addition of the words "verbal consentto examination" to nine of the complainants' records. Dr Ahmad then went on toalter the records again on 16 June 2014 by expanding in some detail the context ofthe examination. Dr Ahmad's alterations were rather more than simple errorcorrection. He accepted a number of them were copy/paste errors because he hadpasted the same notes to a number of different patients and they needed to bereviewed.[70] While both Professor Arroll and Professor Gorman accepted it was common for doctors to update their records to maintain accuracy, it was open for the Judge to find that the reason Dr Ahmad altered the records in the way he did in this case was to seek to justify the examinations he had conducted.Dr Ahmad's evidence generally[71] The last issue the Judge relied on in rejecting Dr Ahmad's evidence was hisassessment of Dr Ahmad while he gave evidence. The Judge properly directed himself about the dangers of relying on demeanour but considered that Dr Ahmadwas not a satisfactory witness on the important issues.[72] It is appropriate to give weight to the Judge's assessment of Dr Ahmad as a witness. It was open for the Judge to make the finding that Dr Ahmad's evidencewas not credible so that he put that evidence to one side and went on to consider whether the Crown had satisfied the onus on it to prove the indecent assaults had occurred having regard to the evidence of the individual complainants. As noted, in conducting that exercise the Judge made discerning judgments in each case rejectingsome of the complainants' evidence.Summary[73] While we have considered the new evidence to determine its admissibility ultimately we conclude that, while credible, it is not sufficiently cogent or of such significance that it is admissible.[74] We also reject the challenges to the basis upon which the Judge made adverse credibility findings against Dr Ahmad.Result[75] The application for leave to adduce further evidence is declined.[76] The appeal against conviction is dismissed.Solicitors:Crown Law Office, Wellington for Respondent