Kumar v R [2013] NZCA 77; [2013] 3 NZLR 201; (2013) 26 CRNZ 157 (26 March 2013)

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ORDER PROHIBITING PUBLICATION OF THE JUDGMENT IN NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY AVAILABLE DATABASE UNTIL FINAL DISPOSITION OF RETRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA171/2010 [2013] NZCA 77

BETWEEN PRAVIN KUMAR Appellant

AND THE QUEEN Respondent

Hearing: 28 and 29 November 2012

Court: Ellen France, Randerson and Wild JJ Counsel: R M Lithgow QC and N Levy for Appellant

^{L C Preston for Respondent}

Judgment: 26 March 2013 at 9.30 am

_{JUDGMENT OF THE COURT}

A The appeal is allowed. The convictions and sentence are quashed. B A retrial is ordered.

100. Publication of the judgment in news media or on the internet or other publicly available database prohibited until final disposition of retrial.

_{Publication in law report or law digest permitted.}

KUMAR V R COA CA171/2010 [26 March 2013]

REASONS OF THE COURT

(Given by Ellen France J)

Table of Contents

Para No Introduction [1] Background [4] The issues on the conviction appeal [15] The legal framework for considering the decision to proceed to trial

in Mr Kumar’s absence [16]

The statutory provisions [17] The applicable principles [19] The High Court decision [29]

Our assessment [34] The nature and circumstances of the appellant’s conduct: whether [37] it was deliberate, voluntary and thereby amounted to a waiver

Whether an adjournment would be likely to result in the defendant [50]

being present, either voluntarily or following apprehension

The likely length of an adjournment [51]

Whether the defendant is represented or has waived the right to [52]

representation

Whether the defendant’s counsel can receive instructions [55]

notwithstanding the defendant’s absence and the extent to which a defence can be presented without the defendant; and the extent of the disadvantage to the defendant in not being able to give his account of events, taking into account the evidence against him

The risk of the jury drawing improper adverse inferences from the [65]

defendant’s absence

The seriousness of the offending [70] The interests of the victims [71] Conclusion [74] Result [76]

Introduction

[1] The appellant, Pravin Kumar, was to face trial before a jury in the High Court on 7 October 2009 on charges of sexual offending involving two complainants. At that time, Mr Kumar was on electronically monitored bail. On the morning of his trial, Mr Kumar cut off his electronic bracelet and left his bail address taking his personal belongings. He failed to attend court for his trial.

[2] Attempts to locate Mr Kumar on 7 October 2009 were unsuccessful. On the application of the Crown, later that day, the trial Judge, Allan J, determined that the

trial should proceed in Mr Kumar’s absence.¹ When Mr Kumar did not attend at Court, his counsel, Mr Peter Kaye, sought the Judge’s leave to withdraw. Allan J declined leave and Mr Kaye defended Mr Kumar at the trial. Mr Kumar was found guilty by the jury in his absence on 13 October 2009 on two counts of kidnapping, two of sexual violation by rape, one of male assaults female and one of indecent assault. He was sentenced by Allan J to preventive detention with a minimum period of imprisonment of seven years.²

[3] Mr Kumar appeals against his conviction and sentence. The primary contention on the conviction appeal is that a miscarriage of justice has resulted from his trial proceeding in his absence.

Background

[4] The incidents giving rise to the charges are summarised by Allan J in his sentencing remarks and we adopt that summary.

[5] The first complainant, whom we shall call Ms R, was 18 years old at the time. She had two young children and occasionally supported her family by prostitution. On the night of 26 September 2008 at about 11.30 pm, she was on the streets of South Auckland. Mr Kumar approached her in his car. A price of $100 for sex was agreed and Ms R got into Mr Kumar’s car for that purpose. She had suggested they go to a nearby park but Mr Kumar drove further away to a cul-de-sac in a deserted industrial area. There the car was parked under a street lamp towards the end of the road. While the two were driving, Mr Kumar offered Ms R both alcohol and cannabis. She refused.

[6] An argument developed between Ms R and Mr Kumar over whether Mr Kumar should pay her before engaging in sexual intercourse and over whether Mr Kumar ought to wear a condom. Ms R was not prepared to co-operate if Mr Kumar did not do both. On her account, she eventually got out of the car after a

_{lengthy argument and began to walk away. Mr Kumar seized her and forced her into}

¹ _{R v Kumar [2011] 1 NZLR 701 (HC) [commencement ruling].}

² R v Kumar HC Auckland CRI-2008-092-18963, 19 March 2010 [sentencing remarks].

the back seat of the vehicle. During the struggle which followed, Mr Kumar hit her once or twice on the left cheek. Mr Kumar forced himself on top of her and raped her as she struggled. Her evidence was that Mr Kumar wore a condom.

[7] On Ms R’s evidence, the rape continued for three to five minutes. She said she struggled throughout and told Mr Kumar to get off her but he simply told her to shut up. Once Mr Kumar finished, Ms R took her clothing, dressed, got out of the car and walked off. She called the police from a nearby petrol station. Mr Kumar was later identified from a photo montage.

[8] Less than a fortnight later, on the evening of 8 October 2008, the second complainant Ms L was walking home. She had been drinking in the afternoon and evening with a friend. At that time she was 19 years of age. She has for some time suffered from severe schizophrenia.

[9] What happened next is described by Allan J, addressing Mr Kumar when sentencing him:³

[14] As she was walking along Great South Road [Mr Kumar] approached her in [Mr Kumar’s] car and asked her for directions. [Mr Kumar] then offered to drive her home. The victim accepted because she thought [Mr Kumar] looked friendly and did not want to walk home alone at night. But [Mr Kumar] did not drive her home. Rather, [Mr Kumar] first went to a liquor store where [Mr Kumar] purchased a box of Codys or Woodstock alcohol drinks. [Mr Kumar] then drove Ms L to a carpark near the airport, where [Mr Kumar and Ms L] both drank some of the alcohol and [Mr Kumar] offered her cannabis which she refused. When she asked [Mr Kumar] to take her home [Mr Kumar] responded that [Mr Kumar] would not do so until she gave [Mr Kumar] what [Mr Kumar] wanted. [Mr Kumar] then drove to an even more isolated area, poorly lit and with little vehicular traffic. [Mr Kumar] told the victim to get into the back seat, which she did. [Mr Kumar] locked all of the car doors and again told her [Mr Kumar] would not drive her home until [Mr Kumar] got what [Mr Kumar] wanted. She was scared of [Mr Kumar] and said in evidence she was afraid [Mr Kumar] would attack her if she did not give in to [Mr Kumar’s] advances.

[15] [Mr Kumar] undid her top and felt her breasts under her clothes. Eventually, under the pressure [Mr Kumar] imposed upon her, she removed some of her garments and [Mr Kumar] had sexual intercourse with her. By that time, she said in evidence, she thought [Mr Kumar] might kill her if she did not accede to [Mr Kumar’s] demands. During sexual intercourse [Mr Kumar] held her down by the shoulders.

³ Sentencing remarks, above n 2.

[16] Ultimately she managed to escape from the car while [Mr Kumar was] leaning over into the front seat to recover a beer container. Ms L ran to a nearby building where she found a security guard who called the police.

[10] The appellant’s DNA was subsequently recovered from material on Ms L’s

left breast.

[11] We interpolate that Ms L’s initial complaint was of an indecent assault, namely, that the appellant touched her breasts. At that time she told the police that whilst there had been requests for oral sex, and intercourse, she declined them and neither occurred.

[12] After speaking to the police, Ms L went for a medical examination. At this point, she was accompanied by LH. LH was a support worker who was spending time with Ms L on a daily basis. At the medical examination, Ms L told the doctor there had been no penetration and she denied the appellant had ejaculated at any time. The doctor did not perform a genital examination.

[13] Seven months later, Ms L made another statement to the police. She was again accompanied by LH. On this occasion, Ms L told the police that incidents of touching, oral sex and rape had occurred. She also said the appellant had ejaculated. Her evidence was that he did not wear a condom.

[14] When spoken to by the police Mr Kumar declined to say anything. At his trial, defence counsel Mr Kaye did not dispute that Mr Kumar was the person involved in each of the two incidents. The case that the defence advanced was that nothing untoward occurred with either complainant. In his evidence in support of this appeal, Mr Kumar said no sexual activity had occurred between him and either of the two complainants, except that he had fondled Ms L’s breast. He claimed that she had agreed to that.

The issues on the conviction appeal

[15] There are a number of grounds of appeal.⁴ The grounds range over issues about the decision to proceed to trial in his absence, how defence counsel prepared for and conducted the trial and responded to the Court when it was discovered Mr Kumar was absent, and the directions given by the trial Judge about the appellant’s absence. However, we consider the appeal can be dealt with by considering and answering the single question: did the Judge err in proceeding to try Mr Kumar in his absence? In answering that question, we first set out the legal framework for the decision before discussing the Judge’s reasons, the competing contentions and our assessment of the case.

The legal framework for considering the decision to proceed to trial in

Mr Kumar’s absence

[16] The starting point is the relevant statutory scheme.

The statutory provisions

[17] Section 376 of the Crimes Act 1961 deals with the presence of the accused at trial. The section provides that:⁵

(1) Every accused person shall be entitled to be present in Court during the whole of his trial, unless he misconducts himself by so interrupting the proceedings as to render their continuance in his presence impracticable.

(2) The Court may permit the accused to be out of Court during the whole or any part of any trial on such terms as it thinks proper.

[18] In addition, s 25 of the New Zealand Bill of Rights Act 1990 sets out various minimum standards of criminal procedure. Section 25(a) provides for the right to a “fair and public hearing by an independent and impartial court”. Section 25(e)

_{protects “[t]he right to be present at the trial and to present a defence”.}

⁴ Those grounds evolved over the two years and eight months that elapsed between the filing of this appeal on 29 March 2010 and the hearing of it in late November 2012. That delay is of the making of Mr Kumar.

⁵ See, to similar effect, Summary Proceedings Act 1957, s 170.

The applicable principles

[19] We were not asked to revisit the authorities that proceed on the basis that s 376 of the Crimes Act permits a trial to start in the absence of an accused who has not requested that.⁶ The case before us proceeded on the basis that there is a discretion to proceed in the absence of an accused but that great care is needed in the exercise of that discretion. The discretion is one to be exercised in the context of the right to be present. That approach is consistent with the authorities here,⁷ in England⁸ and in Australia.⁹ The type of factors which those authorities viewed as relevant to the exercise of the discretion are discussed by the House of Lords in R v Jones (Anthony).¹⁰

[20] Mr Jones absconded prior to trial. His trial proceeded in his absence. Mr Jones was not represented at trial, his counsel having withdrawn about seven months beforehand. He and his co-defendant were convicted of conspiracy to rob. He appealed against his conviction.

[21] It is helpful to refer first to the approach of the English Court of Appeal to Mr Jones’ appeal. In rejecting Mr Jones’ appeal, the Court of Appeal made the point that in exercising the discretion “fairness to the defence is of prime importance”, but fairness to the prosecution must also be considered.¹¹ The Court said relevant factors

_included:¹²

⁶ _{See, for example, R v Lee [2006] NZCA 60; [2006] 3 NZLR 42 (CA) at [121].}

7. R v McKinnon CA240/04, 4 May 2005 at [46]–[47]; R v van Yzendoorn [2002] NZCA 224; [2002] 3 NZLR 758 (CA) at [17]–[18]; R v Sthmer HC Wellington T1064/01, 17 June 2003 at [25]; R v Hika (1986)

2 CRNZ 245 (HC) at 246–248; R v Chatha [2008] NZCA 547 at [67]; R v Dunn (No 9)

HC Auckland CRI-2008-404-76, 4 June 2008 at [5]–[9]; R v Fatu HC Hamilton CRI-2007-019-

310, 5 November 2009 at [7]–[9]; and R v Williams (No 5) (2004) 21 CRNZ 704 (HC) at [41]–

_{[44] and [51].}

⁸ R v Jones (Anthony) [2002] UKHL 5, [2003] 1 AC 1 at [6] and [13] per Lord Bingham, [17] per

Lord Nolan and [58] per Lord Rodger; R v Jones (Robert) (No 2) [1972] 1 WLR 887 (CA) at

_{892; and R v O’Hare [2006] EWCA Crim 471 at [20] and [24].}

⁹ R v Stuart & Finch [1974] QR 297 (QCA) at 310–311 and 341; R v McHardie & Danielson

[1983] 2 NSWLR 733 (NSWCCA) at 742 and 745; R v Jones [1998] SASC 7021; (1998) 72 SASR 281 (SASC) at

295; R v Serrano (No 5) [2007] VSC 209, (2007) 16 VR 360 (VSC) at [29] and [35]; and R v

_{Gee [2012] SASCFC 86, (2012) 113 SASR 372 at [79].}

¹⁰ _{Above n 8.}

¹¹ _{R v Jones sub nom R v Hayward [2001] EWCA Crim 168; [2001] QB 862 (CA) at [22](5).}

¹² At [22](5).

(a) the nature and circumstances of the defendant’s conduct in absenting him or herself from the trial and, in particular, whether the behaviour was deliberate, voluntary and such as plainly waived the right to be present;

(b) whether an adjournment would be likely to result in the defendant being present, either voluntarily or following apprehension;

(c) the likely length of such an adjournment;

(d) whether the defendant, though absent, was or wished to be legally represented at trial or had, by his or her conduct, waived the right to representation;

(e) whether the defendant’s counsel can receive instructions notwithstanding the defendant’s absence and the extent to which a defence can be presented without the defendant;

(f) the extent of the disadvantage to the defendant in not being able to give his account of events, taking into account the evidence against him;

(g) the risk of the jury drawing improper adverse inferences from the defendant’s absence;

(h) the seriousness of the offending (from the perspective of the defendant, victims and the public);

(i) the interests of the public generally, and in particular of victims and witnesses, in a trial taking place within a reasonable time of relevant events;

(j) the effect of delay on the memory of witnesses; and

(k) in a case involving multiple defendants, the undesirability of separate trials and the prospects of a fair trial for those who are present.

[22] In the House of Lords, their Lordships affirmed these principles except for the criterion relating to the seriousness of the offence.¹³ There was a division in the House of Lords on the question of whether the Court of Appeal was right to characterise Mr Jones as having waived his right to be present.

[23] A majority, Lord Bingham, Lord Nolan and Lord Hutton, concluded that the Court of Appeal was correct to find that Mr Jones had waived his right to be present. That, in the opinion of Lord Bingham, was because:¹⁴

... one who voluntarily chooses not to exercise a right cannot be heard to complain that he has lost the benefits which he might have expected to enjoy had he exercised it.

[24] The minority, Lord Hoffman and Lord Rodger, both considered that a waiver of the right to be present required knowledge on the part of the defendant of the consequences of the defendant not exercising the right, in particular knowledge of the possibility that the trial would, or could, proceed in the defendant’s absence. Lord Hoffman put the position in these terms:¹⁵

Like Lord Rodger ..., I am not comfortable with the notion that the defendants waived their rights ... . Waiver requires consciousness of the rights which have been waived. I agree that there is nothing to show that the defendants must have known that if they did not turn up on the date set for trial, it would proceed in their absence and without representation on their behalf. I would prefer to say that they deliberately chose not to exercise their right to be present or to give adequate instructions to enable lawyers to represent them.

And Lord Rodger explained the position in this way:¹⁶

These facts certainly justify the inference that the appellant knew that he would not be present when his trial was due to take place. That does not, in itself, justify the conclusion that he had waived his right to be present or to be represented at any trial of the charges against him. Such an inference could be drawn only if one could be satisfied that the appellant not only knew that the trial was due to take place when he would be absent, but also knew that it could take place even though he was not there and even though he was not represented. ...

¹³ _{R v Jones (Anthony), above n 8, at [13]–[14]; see also R v O’Hare, above n 8, at [31].}

¹⁴ _{At [11].}

¹⁵ _{At [19]; see also R v O’Hare, above n 8, at [23].}

¹⁶ At [51].

[25] The House of Lords was unanimous that the appeal should be dismissed. A subsequent complaint to the European Court of Human Rights was unsuccessful.¹⁷

[26] The approach to the discretion in New Zealand in future cases will be governed by the Criminal Procedure Act 2011. The Act restates the expectation that an accused in Mr Kumar’s situation be present at trial. However, the Act specifically envisages that a trial may proceed in the absence of the defendant in certain circumstances. In particular, the Act states that the court must not proceed in the absence of a defendant if the court is satisfied that it would be contrary to the

interests of justice to do so.¹⁸ Without limiting the matters the court may consider in

making its decision under that subsection, the court must consider the matters set out in s 121(4).¹⁹ Those factors generally correlate to those endorsed by the House of Lords in Jones, save that the nature and seriousness of the offence is included as a relevant factor.²⁰

[27] The Act also sets the procedure to be followed when a hearing proceeds in the absence of a defendant.²¹ If a person is found guilty in his or her absence at a hearing at which that person is required to be present he or she can apply for a retrial. If that course is taken, that has the effect of suspending the right of appeal.²²

[28] As we shall now discuss, Allan J approached the matter by considering the principles endorsed by the House of Lords in Jones.

The High Court decision

[29] The Judge proceeded on the basis that this was a deliberate absconding to force an adjournment. In terms of the first of the Jones factors, the Judge accordingly said that this was a deliberate premeditated action by Mr Kumar “aimed

_{at subverting the trial process”.}²³

¹⁷ _{Jones v United Kingdom [2003] ECHR 713, (2003) 37 EHRR CD 269.}

¹⁸ _{Section 122(4).}

¹⁹ _{Section 122(5).}

²⁰ _{Section 121(4)(d).}

²¹ _{Section 124.}

²² _{Section 128.}

²³ Commencement ruling, above n 1, at [30].

[30] In terms of the second Jones factor, the Judge considered that an adjournment might mean that Mr Kumar may not appear. In this context, the Judge noted that Mr Kumar had adopted several aliases in the past and had a number of concurrent passports. Allan J said there was “a distinct possibility” that Mr Kumar may not be located for “a very considerable time”.²⁴ Accordingly, and dealing now with the third Jones factor, the Judge considered any adjournment “might well be very lengthy”.²⁵

[31] Next, dealing with the fourth Jones factor, the Judge noted that Mr Kumar

“will be represented throughout the trial by very experienced counsel”.²⁶

Notwithstanding that, the Judge proceeded (dealing with the fifth Jones factor) on the basis that the defence would be “significantly hampered”, particularly because Mr Kumar would not be able to give “the intended defence evidence”.²⁷ The Judge observed “[i]t is plain that in order to conduct a proper defence to these charges, the accused would need to give evidence. Mr Kaye confirmed that to be the position”.²⁸

_{Allan J treated the offending as “very serious” (the eighth Jones factor).}²⁹

[32] But it was the ninth Jones factor, particularly the interests of the complainants, that Allan J viewed as the key factor. Ultimately, his concern was that an adjournment ran the real risk the complainants would not give evidence at trial. On this factor, the Judge said this:

[38] ... There are two separate unconnected victims; each of them is a young woman; each in her own way has found the trial process to be extremely upsetting. Ms R is just 19 years old. During the course of argument [counsel for the Crown] stated that Ms R was a distressed and reluctant witness who has been persuaded by the police only with great difficulty to attend the Court in order to give evidence. [The prosecutor] advised the Court that the police were extremely concerned that if the trial was adjourned, Ms R would simply not be prepared to attend on a later occasion.

[39] After I gave my ruling and the trial commenced I was able to observe Ms R in the witness box. Her demeanour there bore out what [the Crown prosecutor] had earlier told the Court. In the initial stages Ms R was

²⁴ _{At [31].}

²⁵ _{At [31].}

²⁶ _{At [32].}

²⁷ _{At [34] and [48].}

²⁸ _{At [35].}

²⁹ At [37].

extremely upset. She cried frequently and tended to cower in the witness box, even though the accused was not of course present in Court.

[40] The second complainant, Ms L, also has personal difficulties. She is

20 years old. Unfortunately she suffers from schizophrenia, which is largely controlled by medication. Nevertheless, it will be readily appreciated that

her illness creates special problems for her in giving evidence and generally

in dealing with the consequences of this claimed offending. I have read a brief of evidence by a psychiatrist who will give evidence later in the trial

about Ms L’s medical condition.

[41] Again, [the prosecutor] submitted there was a real risk that Ms L might not be able to attend the trial on a later occasion. She had had the benefit of counselling in the period leading up to the trial, but there were doubts about whether she could be persuaded to give evidence on a later occasion if there was a significant delay.

[42] In my view, the interests of the complainants are primary considerations in the present case. The remaining factors are not of great significance, although there will, with the passing of time, be an inevitable tendency for memories to fade.

[33] Allan J accordingly concluded that this was one of those exceptional cases where, in the interests of justice, the case should not be adjourned indefinitely with all that entailed for the complainants.

Our assessment

[34] We address the central issue, that is, whether the Judge erred in proceeding with Mr Kumar’s trial in his absence, by discussing each of the relevant Jones factors in turn. That seems to us to be a useful way of assessing the correctness of the decision. This approach also has the benefit of reflecting the analysis adopted by Allan J. In addition, it anticipates the approach that will be taken in future cases of this kind under the Criminal Procedure Act.

[35] The parties essentially adopted the same analysis, although Mr Lithgow QC submits that the approach taken in South Australia is to be preferred.³⁰ For the Crown, Ms Preston says that a post-trial analysis in terms of the Jones factors supports the approach taken by Allan J. Ms Preston submits that Mr Kumar was

_{represented and that his defence was before the jury. In addition, she emphasises}

³⁰ R v Jones, above n 9. The differences in approach between the House of Lords decision in Jones

and that of the Supreme Court of South Australia in Jones are not critical in our view.

that broader public interests are particularly important in the present case given the possibility that adjournment may have meant the complainants would not be willing to attend and give evidence at a later date.

[36] We add that we received affidavits from the following people: the appellant; Mr Rajendra Prasad, the appellant’s brother; Mr Gary Gotlieb, who was the second counsel acting for Mr Kumar on this appeal; Mr Kaye; the officer in charge, Detective Michael James Mackie; and Mr Timothy Power from Environmental

Science and Research (ESR).³¹ Of these deponents, four were required for

cross-examination and we heard them questioned on the affidavits in this order: Mr Prasad; the appellant; Mr Kaye; and Detective Mackie.

The nature and circumstances of the appellant’s conduct: whether it was deliberate, voluntary and thereby amounted to a waiver

[37] Mr Kumar’s evidence was that he was concerned about the lack of preparation for his trial and wanted an adjournment. He says he “panicked at the last minute” and was “scared” he would get convicted of something he had not done by going to Court that morning.

[38] To put Mr Kumar’s concerns about the lack of preparation in context we need to note the history of his representation. He was initially represented by Mr Barry Hart. He was not happy with aspects of Mr Hart’s representation, particularly the fact that Mr Hart did not himself appear but, for example, for the depositions hearing sent along another barrister. Mr Kumar’s response was to apply to the Legal Services Agency to have Mr Kaye appointed as his lawyer. On 6 March

2009, the Agency declined that application.

[39] Subsequently, Mr Hart handed over the reins and Ms Louise Freyer became Mr Kumar’s lead counsel from 12 August 2009 until the end of that month. At a pre- trial hearing in the High Court, Ms Freyer sought an adjournment because she was

_{going to be away up until the day before the trial. Wylie J formally declined an}

³¹ Leave is granted to adduce this evidence.

adjournment although the trial date was deferred.³² At that point Mr Kumar said he again wanted Mr Kaye to appear for him. Mr Kaye took over on an informal basis about a month before the trial was due to start. He was confirmed as counsel by the Legal Services Agency on 23 September 2009.

[40] On the basis of the evidence before us, particularly the electronic bail records, we find that the appellant had a maximum of three meetings prior to trial with Mr Kaye.

[41] We do not need to deal with the evidence about Mr Kumar’s motivation for absconding in any more detail because Mr Lithgow ultimately accepted that it was deliberate, with a view to forcing an adjournment. That said, we record that we do not accept Mr Kumar’s evidence that he absconded having panicked at the last minute. It is not credible. If Mr Kumar was concerned at a lack of preparation for trial he would have raised this with Mr Kaye at their final briefing session on the day before trial. He did not. Nor did he ask Mr Kaye to seek an adjournment.

[42] It is important to note here that Mr Kumar is not unfamiliar with the criminal justice system. He has over 50 previous convictions dating back to 1989. These include convictions for injuring and attempted abduction leading to a three year prison term in February 2004. There were also other charges against Mr Kumar arising out of allegations he had picked up a 15-year-old woman, taken her in his car, given her alcohol and some other substance before leaving her naked in a field. In relation to those charges, Mr Kumar was represented by Mr Kaye. Mr Kumar was discharged in relation to this matter when, on the day of the trial, the complainant would not testify.

[43] As Ms Preston submits, Mr Kumar earlier in this case was willing and able to press his case. For example, at depositions, he told the Justices of the Peace he did not want another barrister to appear for him, but wanted Mr Hart to appear. We add into the mix that in June 2011, from prison, he contacted the complainant Ms L

_{pretending to be a psychiatrist. That contact led to his conviction for attempting to}

³² R v Kumar HC Auckland, CRI 2008-092-18963, 27 August 2009. The trial date was able to be deferred because two weeks had been allocated for the trial but by this point it was clear a lesser period would suffice.

pervert the course of justice.³³ We note an appeal is outstanding in relation to that conviction. In addition, pretending to be the late Mr Brian Rowe, he sought information from the ESR about the presence or otherwise of the substance amylase in the DNA material on Ms L’s breast.³⁴ In evidence before us, he accepted he was aware that amylase was an indication of the presence of saliva.

[44] Nor is Mr Kumar’s evidence on his motives in absconding assisted by the evidence from his brother. In the affidavit filed in this Court, Mr Prasad did not mention any concern about preparation. That was mentioned for the first time in evidence before us. When Mr Prasad was cross-examined he said that in the telephone conversation he had with Mr Kumar the day after he absconded his brother was “mentioning like, he was very nervous to go to the court because ... his lawyer didn’t ... [do] his work very thoroughly”. He also said Mr Kumar told him “he didn’t have much time to talk to his lawyer and his case was not prepared properly”. When asked why he had not mentioned this discussion earlier he said it had just come into his mind in the last few days before the hearing.

[45] There is another factor which is highly relevant to the consideration of the nature and circumstances of the conduct in this case. That is Mr Kumar’s evidence that he asked Mr Kaye at their last meeting what would happen if he did not show up to court. Essentially, Mr Kaye accepts he may well have told Mr Kumar that this would lead to an adjournment. Mr Kaye was asked to confirm his evidence as follows:

And that was the gist of your advice when he did raise the matter with you prior to trial, what would happen if I didn’t turn up? The gist of your advice to him when he raised with you prior to trial what would happen if I didn’t turn up was what?

[46] Mr Kaye’s answer was:

I recall saying to him that I wasn’t going to enter into that discussion. He had to attend in accordance with his bail, but I may well have said that it could be adjourned or in some such form of words. I really don’t remember, but I could well have said that.

³³ _{R v Kumar [2012] NZHC 1912.}

34. Mr Rowe was a former police officer who, on retirement, undertook work as a private investigator.

[47] Mr Kaye was open in accepting that he did not realise that the trial could in fact proceed in Mr Kumar’s absence. That strongly suggests he did advise Mr Kumar to the effect that an adjournment would result.

[48] We deal with the appeal on the basis that Mr Kumar was under the impression that if he did not answer his bail then the trial would be adjourned. That of course puts us in a different position from that of Allan J who was not aware of Mr Kumar’s mistaken belief that an adjournment would be the response to his failure to attend.

[49] In these circumstances, at least if the approach of Lord Hoffman and Lord Rodger in Jones is adopted, Mr Kumar did not waive his right to be present at his trial. That is because he did not know that his trial could take place even although he was not there. However, we need not go further into the difficult question of waiver because, ultimately, the Crown did not advance its case on that

basis. As Lord Hoffman observed:³⁵

The question in my opinion is not whether the defendants waived the right to a fair trial but whether in all the circumstances they got one.

Ultimately, that was the question all five of the Law Lords in Jones addressed and answered. It is also the way we have framed the question raised by this appeal.

Whether an adjournment would be likely to result in the defendant being present, either voluntarily or following apprehension

[50] Mr Kumar was apprehended three weeks after the trial. He did not appear voluntarily. We had evidence from Detective Mackie of the steps taken to look for him on 7 October 2009. Ultimately there was no real issue as to the adequacy of

_{those steps.}

³⁵ R v Jones (Anthony), above n 8, at [20].

The likely length of an adjournment

[51] This is a trial that would have been given priority. It is difficult to say categorically but it seems to us likely that a trial could have proceeded in the first quarter of the following year, 2010.

Whether the defendant is represented or has waived the right to representation

[52] The appellant was represented. Mr Lithgow was critical of the state of preparedness, aspects of the defence and the level of interaction Mr Kaye had with Mr Kumar prior to trial. Because of the conclusion we reach on the correctness of the decision to proceed in Mr Kumar’s absence, we do not need to come to a final view on this aspect. Time before trial undoubtedly was tight but Mr Kaye is a very experienced counsel and no doubt had he had input from his client as the trial proceeded some of the issues raised about the conduct of the trial may well have been resolved.

[53] Mr Lithgow argued that it was not appropriate for Mr Kaye to have continued to represent Mr Kumar. In other words, he considers Mr Kaye was right to seek leave to withdraw and the Judge should have allowed him to do so. However, we agree with Lord Bingham who said in Jones that it is “generally desirable” that a

defendant be represented even if he or she has voluntarily absconded.³⁶ The

Criminal Procedure Act envisages that the defendant’s lawyer may continue to

represent him or her at a trial held in the defendant’s absence.³⁷

_{[54] We deal with the next two Jones factors together.}

³⁶ At [15]. Lord Rodger expressly associated himself with those comments, describing the trial Judge’s decision to proceed with the trial in the absence of the defendants and in the absence of legal representation for them as “exceptional”: at [58].

³⁷ Section 124(2)(a).

Whether the defendant’s counsel can receive instructions notwithstanding the defendant’s absence and the extent to which a defence can be presented without the defendant; and the extent of the disadvantage to the defendant in not being able to give his account of events, taking into account the evidence against him

[55] It seems to us that Mr Kumar’s defence was hindered in a number of key respects. First, there were some matters on which he had not given instructions. That was in part because of the brevity of preparation time but also simply because Mr Kumar was not there to give input as the trial progressed. Secondly, cross-examination was hindered. Finally, he was not able to give evidence.

[56] These matters are interrelated. Critically, the cross-examination Mr Kaye could undertake was hampered by the fact he had nothing from the appellant to back it up. Obviously, in this situation counsel are able to focus on objective criteria such as any inconsistencies in a complainant’s account. However, while Mr Kaye closed to the jury on the basis that the limit of Mr Kumar’s sexual activity with Ms L, for example, was consensual fondling of her breasts, the appellant’s alternative version could not be put.

[57] This difficulty, that is, the inability to put the alternative version, was recognised by Mr Kaye. He was asked in cross-examination before us if he could put the defence without Mr Kumar giving evidence. Mr Kaye said he felt at the time that he could not do so. He explained:

... I couldn’t. Because here were two women making these allegations against him. I could suggest you are lying, that’s not right, I would be given an answer no I am not. So what the women had said would stand. I felt that I needed him to give evidence. To as it were give the other side of the picture. It was almost a position where I had to [call Mr Kumar].

[58] Accordingly, Mr Kaye said he believed that this was a case in which he had to call Mr Kumar. It appears Ms Freyer had taken the same position and there is no dispute that the intention was to call Mr Kumar. Certainly, Mr Kaye accepted he thought at trial that in the absence of Mr Kumar he could not directly call Ms L a liar. He acknowledged in evidence before us that, on reflection, he might well have been able to take that course. The point is that he did feel constrained by the absence of Mr Kumar.

[59] That this was Mr Kaye’s position is apparent from the cross-examination of both of the complainants. It is fair to describe the cross-examination, particularly of Ms L, as perfunctory. We mean no criticism of Mr Kaye by this. He worked with what he had. One illustration from the cross-examination will suffice to illustrate our point.

[60] Mr Kaye asked Ms L about the fact she did not initially tell the police there was sexual intercourse with Mr Kumar although she had spoken to LH that day. The cross-examination proceeded as follows:

Q And you say that’s because you were embarrassed and upset?

A Yeah and plus I didn’t think I’d be believed.

Q Was that because of [the police officer’s] manner or just because you thought that?

A Because I thought that.

Q Then I think you told us that you spoke to [LH], who’s one of your care workers, isn’t she?

A Yes.

Q And was that the same day that you spoke to the police officer ...?

A Yes.

Q But you didn’t tell the police then about sex, after you’d spoken to

[LH], did you?

A No.

Q And it wasn’t for a long time, in fact until May of the next year, so it was seven months or so, wasn’t it, before you told the police about the sex?

A Yeah.

Q Would that be about right. And that was actually a male police

officer wasn’t it?

A Yeah.

...

Q Can I ask you why it took so long for you to go and tell the police about this sex, that you say happened?

A Um.

Q Don’t worry, just explain, if you can?

A Um, just the whole thing of not being believed, being a bit paranoid. Q You see you didn’t have sexual intercourse with this man, did you? A Yes.

Q You tried to, but you didn’t have it, did you?

A No, we did.

[61] There was an additional complexity in this case because of the risk that a head on challenge to Ms L’s veracity based on a claim her complaint was a recent invention may have led to LH being called by the Crown to give evidence. LH, Ms L’s support person, had made a statement to the police that would form the basis of her evidence. This Court in an earlier decision relating to this appeal described that statement as follows:³⁸

[9] ... LH said that, after the police station on the first occasion, and prior to the medical examination, [Ms L] had disclosed to her that she had in fact been raped. LH says that she, LH, did not say anything about this at the medical examination when [Ms L] told a different story because she considered herself bound by confidence, and because until [Ms L] agreed to disclose there would be no point.

[62] LH was on the Crown witness list. The notation by her entry on the list indicated that she would be called if s 35 of the Evidence Act 2006 relating to previous consistent statements was triggered.

[63] The adverse impact on the scope of cross-examination and the fact Mr Kumar could not give evidence of his version of events is particularly critical in the context of a case which was not without some complexities for the Crown. The fact that Ms L had initially said there was no rape meant there was an absence of any forensic evidence in relation to the more serious charges relating to her. Similarly, Ms R said Mr Kumar had worn a condom but there was no medical examination of her because she was too upset at the time she made her complaint to undergo such an

_examination.

³⁸ Kumar v R [2012] NZCA 434.

[64] The Crown says that there is, nonetheless, nothing to suggest that the convictions were wrong because Mr Kumar has given conflicting accounts of events. This is a reference to differences between statements he made as recorded in notes made by counsel (initially and primarily generated by Ms Freyer’s discussions with Mr Kumar) and evidence given in cross-examination before us. Those differences would doubtless have been put to Mr Kumar in cross-examination. But it does not follow that the jury would have rejected his account, had they heard it.

The risk of the jury drawing improper adverse inferences from the defendant’s

absence

[65] At trial, the Judge in his opening remarks said this to the jury:

Now as you will have gathered, Mr Kumar himself is not in Court at present. That is an unusual situation as I am sure you will appreciate, but it is not unheard of. You do not need to concern yourselves about the reasons why he is not present in Court, don’t speculate about that, it is just simply a circumstance of this trial, your role in the case will be no different simply because he is not with us.

[66] In summing up Allan J stated:

Now no evidence was called for the defence. As I indicated to you at the outset of the trial, because the burden of proof rests with the Crown throughout there is no obligation on Mr Kumar to give evidence in his own defence or to call any other defence witnesses. You must not draw an inference adverse to Mr Kumar from the absence of defence evidence.

[67] Mr Lithgow was critical of this aspect of the trial. He submitted that the jury should have been informed of Mr Kumar’s explanation for his absence.

[68] However, Allan J’s approach is consistent with that discussed, for example, by Lord Rodger in the House of Lords in Jones. Lord Rodger noted that, in that case, the members of the jury were directed by the trial Judge that they had to reach their verdict on the evidence which they had heard and on nothing else. They were not to speculate. The trial Judge had stressed that where the defendants were unrepresented, it was particularly important for the jury not to speculate. They were

_{also told:}³⁹

³⁹ R v Jones (Anthony), above n 8, at [66].

... specifically, that they must not speculate as to the reason for the defendants’ absence and that they should not assume that the defendants’ failure to attend court in any way at all established that either or both of them were guilty. The jury should carefully assess the evidence as they would have done if the defendants had been present and had been represented by counsel. The judge also told the jury not to assume that the fact that the defendants had not been there to give evidence in any way at all helped the prosecution to prove their case. It was vitally important for the jury to remember that there was no burden placed on a defendant to prove that he was not guilty.

[69] We see no problem in the approach taken. In any event, we have rejected Mr Kumar’s explanation that he panicked because he was concerned at the lack of preparation.

The seriousness of the offending

[70] Undoubtedly, the offending was serious. It was predatory. In addition to the usual considerations, it is relevant to consider under this head the effect on the public and the victims. In that context it is vital that persons in Mr Kumar’s situation are not able to manipulate the criminal justice system in a way that means offending is not detected or goes unpunished. There is also a need to ensure matters are brought to trial within a reasonable period of time.

The interests of the victims

[71] Ultimately this is the factor that weighed most heavily with the Judge. Allan J gave his reasons after trial so by then he had the advantage of seeing the complainants give their evidence. Mr Lithgow however says there was no evidential basis for the Judge’s concern that the complainants may not testify. We do not accept that submission. We make two points.

[72] First, in terms of Ms L, there was evidence of her difficulties in the evidence called by the Crown in support of an application that she give evidence by alternative means. Yvonne McAneny, a psychologist, gave evidence in the pre-trial

_{hearing before Wylie J on this aspect.}⁴⁰ _{Wylie J agreed that it was appropriate that}

⁴⁰ R v Kumar, above n 32, at [33]–[37].

Ms L give her evidence by way of closed circuit television. Secondly, at trial, the evidence of each of the two complainants was propensity evidence in respect of the Crown case against the other. Accordingly, it was of importance to the Crown case that both gave evidence. We agree that the concern that the complainants may not give evidence if the trial was adjourned was very important.

[73] However, the Judge envisaged that any adjournment would be lengthy because he could foresee difficulties in locating Mr Kumar. We have the benefit of knowing that Mr Kumar was located within a few weeks. If there had been a relatively short adjournment, it is less clear what the impact of that might have been on the willingness of the complainants to give evidence. In addition, alternative means of giving evidence including the use of any evidence recorded on video may

be relevant to this issue.⁴¹ Finally, in a retrial, the possibility of using at least the

evidence-in-chief given by the complainants at the earlier trial could be explored. The latter possibility of course could not have been in contemplation at the time Allan J decided the matter.

Conclusion

[74] Our analysis leads us to the conclusion that Allan J was not correct to proceed to trial in Mr Kumar’s absence. The factors that were uppermost in his mind, particularly the impact on the complainants, were significant. However, with the benefit of hindsight, it is now apparent that the end result is that Mr Kumar has not had a fair trial. Mr Kaye did his best and we are satisfied that the Judge directed the jury appropriately in terms of how they were to deal with Mr Kumar’s absence. But Mr Kaye was hampered because of Mr Kumar’s inability to give instructions and because Mr Kumar was not able to give his account of events. Mr Kumar brought upon himself the matters of which he now complains although he was under a misapprehension as to what would happen or could happen if he did not appear for his trial. Unfortunately, however, the problems in the conduct of Mr Kumar’s defence of these very serious charges were such that we can now say that it was

_{wrong to proceed in his absence.}

⁴¹ See Evidence Act 2006, ss 103–106.

[75] In reaching that conclusion we have attached some significance to the fact that, unlike Jones, there had been no earlier adjournment or other delay in the prosecution of this case. The allegations were relatively recent. Indeed, the rape complaint made by Ms L had only been made some four months earlier. In all these circumstances, the decision to proceed was premature. The proper course would have been to allow an adjournment to enable the police to have the opportunity to locate Mr Kumar and to bring him before the Court.

Result

[76] For these reasons, the appeal is allowed. The convictions and sentence are quashed. A retrial is ordered. Given Mr Kumar’s actions to date, it might be thought most unlikely that he would receive bail. However, if he seeks bail, any application is to be dealt with in the High Court.

[77] As there is to be a retrial, we make an order prohibiting publication of the judgment in news media or on the internet or other publicly available database until final disposition of the retrial. Publication in a law report or law digest is permitted.

Solicitors:

Crown Law Office, Wellington for Respondent