Judge throws out health professional's indecency charge

5:16 pm on 22 March 2017

A judge has taken the unusual step of throwing out an indecency charge against a health professional, saying a lack of corroboration undermined the woman's story.

A Wellington judge has taken the unusual step of withdrawing a charge against a heath professional from the jury's consideration and throwing it out.

Wellington District Court.

Wellington District Court. Photo: RNZ / Alexander Robertson

The defendant, whose name and occupation were permanently suppressed, was before the Wellington District Court this week accused of indecently assaulting a patient by kissing her.

It was the second time he faced trial. An earlier trial, in January, was aborted after issues arose relating to evidence.

On Monday the complainant gave evidence the defendant made inappropriate comments to her while preparing her for a rectal examination in January 2015.

She said she felt cold while waiting for the examination. When she asked him for a blanket, he said he did not have one, but he could jump into bed with her and warm her up.

She said as he positioned her on the bed for the examination he went behind her and pulled the hospital gown up to her waist, so she was ready for the procedure.

"He said, 'I've never seen a [ethnic reference] girl's bum before, but now I have. Now I've seen it all.

"It sounded like an attempt at being sexy. [There was] a pervy tone to his voice. I said, 'I think that's a bit inappropriate'."

The woman said the health professional then leaned over her as she lay on the bed and kissed her, saying she was "lovely".

She said she felt disgusted.

The woman said there were other health professionals in the room, but her view of them was blocked by the medical equipment and she said nothing to them.

Judge Peter Butler told the jury today a lack of corroboration from the health professionals undermined the woman's story.

"Corroboration is not required as part of proof of a sexual offence, but her account is undermined... given the smallness of the room and the fact that all conversation was carried on in normal tones according to everyone who was in there."

He said both health professionals said they saw and heard nothing in the room at the time.

"The [female health professional] said, 'I was in a position all the time where I could have seen and I would have reacted'.

"The [senior male health professional] said because of 30 years experience, he would have reacted."

"I think... if I properly directed you, you could not reasonably convict the defendant at the end of the trial, so I've acted now to end it and the defendant is discharged."

Defence lawyer Val Nisbet said afterwards it was a shame the case went so far.

The defendant was relieved the case was over, saying his life was on hold for two years.

He said he was looking forward to taking his wife overseas for a holiday.