R v Kumar HC Auckland CRI 2008-092-18963 [2009] NZHC 2624 (7 October 2009)

Last Updated: 31 December 2010

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

_{CRI 2008-092-18963}

THE QUEEN

v

PRAVIN KUMAR

Appearances: A McClintock and M Gatland for Crown

P Kaye for accused

Judgment: 7 October 2009

Reasons: 13 October 2009

REASONS FOR RULING OF ALLAN J COMMENCEMENT OF TRIAL IN ABSENCE OF ACCUSED

Solicitors:

Crown Solicitor Auckland

_{P Kaye, Auckland}

R V KUMAR HC AK CRI 2008-092-18963 7 October 2009

[1] Mr Kumar faces a number of charges of serious sexual offending involving two unconnected complainants. His trial was scheduled to commence on Wednesday 7 October 2009 at 10 am. He failed to answer his bail that morning. Urgent police inquiries revealed he had absconded. Ms McClintock for the Crown submitted that, despite the absence of the accused, the trial should nevertheless proceed.

[2] At 2.15 pm I convened the Court in order to hear detailed argument from counsel as to the Court’s jurisdiction to continue in Mr Kumar’s absence, and as to the exercise of the Court’s discretion in the event that such jurisdiction existed. After hearing from counsel for more than an hour, I concluded that the Court had jurisdiction to proceed in Mr Kumar’s absence, and that in all the circumstances of this case the trial ought to proceed without him. I gave an oral ruling to that effect, and indicated that I would give my reasons in writing. These are those reasons.

Mr Kumar’s absence

[3] The accused was apprehended in October 2008, in consequence of two quite separate complaints of serious sexual offending. He was then remanded in custody and remained in custody until June 2009, when, over the opposition of the Crown, I ordered that he be released on bail on very strict conditions which included electronic monitoring (EM). In a subsequent judgment on 20 August 2009, Asher J declined an application to vary the bail address.

[4] The Crown’s opposition to bail was based not upon flight risk, but upon a concern that Mr Kumar might re-offend whilst on bail, given his earlier record. In fact the accused did not offend while on bail, nor did he otherwise breach his bail conditions. Indeed, he scrupulously adhered to the requirements of EM bail. Very recently, in the ordinary way, arrangements were made for him to see his counsel in order to prepare for his forthcoming trial. No difficulties were experienced in that respect.

[5] At about 8.15 on the morning of the trial, the Henderson police had received a truncated call on a telephone associated with the accused. During the brief call a person who called himself “Robert” confirmed that the accused would be attending Court that morning. The call was abruptly terminated by the caller.

[6] Against that background Mr Kumar was expected to present himself at Court prior to 9.30 am on the morning of his trial. He did not arrive. Urgent inquiries were made during the morning. In particular, the police visited his bail address and other addresses with which he had a prior connection. He could not be found. The bail address is occupied by a brother and sister-in-law of the accused. He occupied a caravan there.

[7] When the police visited the bail address they found that the EM bracelet had been cut and placed on top of the monitoring equipment. All of Mr Kumar’s personal effects had been removed from the property. Moreover, one or more motor cars upon which Mr Kumar had been working had likewise been removed.

[8] Mr Kumar’s brother was greatly surprised at what occurred. He had understood from the accused that he would be attending his trial. He had not seen the accused on the morning of the trial, but had noticed nothing untoward the previous evening. The accused had removed all of his personal effects and his motor cars from the bail address without his brother’s knowledge; presumably he had done so overnight.

[9] The logical inference is that the accused had deliberately absconded in furtherance of a premeditated scheme, aimed at bringing about the forced adjournment of the trial.

[10] Ms McClintock says that the Crown has concerns that the accused may endeavour to leave the country. He is of Fijian-Indian origin. Although he has surrendered his passport as a condition of his bail, it appears that over time he has assumed a number of aliases. Ms McClintock says that the police have taken the usual precautions at border stations to prevent Mr Kumar’s departure from the

country, but there can be no absolute certainty that he will remain within the jurisdiction.

[11] It may be that police fears that Mr Kumar intends to leave the country are unfounded. Although it is a matter of speculation, it seems unlikely that he would bother to remove all of his personal effects and motor vehicles from the bail address if his intention was to leave New Zealand.

[12] What is clearly apparent is that Mr Kumar has absconded with a view to disrupting his trial, and that his absence was premeditated. The trial has proceeded in his absence; the police have been unable to locate him in the days following 7

October.

The alleged offending

[13] The accused faces trial on an indictment containing nine counts involving two separate complainants. Counts 1-4 concern Ms R. She is a young woman with two children, who occasionally works as a prostitute in order to earn money with which to support her family. Late one evening in September 2008 she agreed to accompany the accused in his car to a park in South Auckland where she was prepared to have sexual intercourse with him for a fee of $100. Instead, Mr Kumar drove to another nearby secluded spot. There, an argument developed because the complainant demanded payment in advance and insisted also that the accused wear a condom. The Crown case is that Mr Kumar refused both requests, but nevertheless demanded that sexual intercourse take place. Ms R endeavoured to make her escape but was dragged back into the vehicle where she was forcibly raped. Thereafter she was able to escape on foot but the accused retained her wallet, which contained about $140 and at least one condom. (As matters transpired the accused did in fact wear a condom before having sex with Ms R). The complainant contacted the police and made a statement about what had occurred.

[14] Some 11 days later, in early October 2008, the second complainant, Ms L, was walking home at night in Manurewa. The accused pulled up in his car and offered to drive her home. She agreed. After stopping to buy liquor and to use the

toilet, the accused drove Ms L to a different secluded place where he indicated he would drive her home only if she agreed to comply with his sexual demands, which were accompanied by threats.

[15] Thereafter, on the Crown case, there followed various indecencies, culminating in sexual intercourse. Ms L’s evidence was that she co-operated with the accused by removing her clothing in order that he might have sexual intercourse with her, but she did so in the face of threats and the accused’s insistence that she comply before she was driven home. Ms L was able to make her escape from the car while the accused was engaged in retrieving an alcoholic drink from the front seat. She encountered two security guards who were patrolling the remote industrial area in which the car was parked, and indicated to them what had occurred. The security guards called the police and Ms L subsequently made a formal complaint.

[16] In respect of Ms R, the indictment contains four counts alleging abduction with intent to have sexual connection, rape, assault by a male on a female, and robbery.

[17] In respect of Ms L, there are five counts, namely abduction with intent to have sexual connection, indecent assault (two counts), violation by unlawful sexual connection, and rape.

The law

[18] I am grateful for the detailed legal argument advanced to the Court by both Ms McClintock and Mr Kaye as to the applicable legal principles, in consequence of which I was able to form a clear view and give an immediate ruling. The starting point is the right of every accused person to be present in Court during the whole of his or her trial. Section 376 of the Crimes Act 1961 (the Act) provides:

376 Presence of the accused

(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.

[19] There are similar provisions in s 170 of the Summary Proceedings Act 1957. A second key provision is s 25(e) of the New Zealand Bill of Rights Act 1990. Section 25 prescribes minimum standards of criminal procedure and in the subsection confirms the right of an accused “ ... to be present at the trial and to present a defence”.

[20] Section 24 confirms the right of an accused person to adequate time and facilities to prepare a defence.

[21] The leading case in England is R v Jones [2002] 2 All ER 113. There, the defendant was arraigned in January 1998 on a charge of conspiracy to rob and pleaded not guilty. He was bailed to appear for his trial on 1 June 1998, but did not attend. His legal representatives withdrew from the proceedings, which were adjourned. The trial was relisted to commence on 5 October 1998. By then the defendant had not been located. The case was adjourned to the following day when he had still not been arrested, and had not surrendered. The Judge took the view that the defendant had deliberately frustrated the attempt of the prosecuting authorities to have the case finally concluded, and ruled that the trial should begin in his absence. He was convicted and sentenced to imprisonment.

[22] Subsequently, in December 1999, the defendant was arrested and later appealed against his conviction. In the House of Lords the appellant was held to have been rightly convicted. Lord Bingham of Cornhill said:

[11] Counsel for the appellant laid great stress on what he submitted was the inevitable unfairness to the defendant if a trial were to begin in his absence after he had absconded. His legal representatives would be likely to regard their retainer as terminated by his conduct in absconding, as happened in this case. Thus there would be no cross-examination of prosecution witnesses, no evidence from defence witnesses, and no speech to the jury on behalf of the defendant. The judge and prosecuting counsel, however well-intentioned, could not know all the points which might be open to the defendant. The trial would be no more than a paper exercise (as Judge Holloway at one point described it) almost inevitably leading to conviction. The answer to this contention is, in my opinion, that 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. If a defendant

rejects an offer of legal aid and insists on defending himself, he cannot impugn the fairness of his trial on the ground that he was defended with less skill than a professional lawyer would have shown. If, after full professional advice, he chooses not to exercise his right to give sworn evidence at the trial, he cannot impugn the fairness of his trial on the ground that the jury never heard his account of the facts. If he voluntarily chooses not to exercise his right to appear, he cannot impugn the fairness of the trial on the ground that it followed a course different from that which it would have followed had he been present and represented.

[12] Considerations of practical justice in my opinion support the existence of the discretion which the Court of Appeal held to exist. To appreciate this, it is only necessary to consider the hypothesis of a multi-defendant prosecution in which the return of a just verdict in relation to any and all defendants is dependent on their being jointly indicted and jointly tried. On the eve of the commencement of the trial, one defendant absconds. If the court has no discretion to begin the trial against that defendant in his absence, it faces an acute dilemma: either the whole trial must be delayed until the absent defendant is apprehended, an event which may cause real anguish to witnesses and victims; or the trial must be commenced against the defendants who appear and not the defendant who has absconded. This may confer a wholly unjustified advantage on that defendant. Happily, cases of this kind are very rare. But a system of criminal justice should not be open to manipulation in such a way.

[23] The principles outlined in Jones are equally applicable in this country: R v van Yzendoorn [2002] 3 NZLR 758 and R v Chatha [2008] NZCA 547.

[24] In the latter case, Glazebrook J, delivering the judgment of the Court of

Appeal said:

[66] Mr Ellis also referred to this Court’s decision in van Yzendoorn. In that case, this Court said, at [17], that the right to be present at trial is not an obligation on the Court or the accused to ensure he or she is present in all circumstances. An accused can waive his or her right to be present. The Court, however, referred with approval to a statement that the discretion to continue a trial in the absence of the accused must be exercised sparingly and said that it can never be exercised if an accused’s defence could be prejudiced by his or her absence. This case therefore is not authority for the proposition that there is an absolute right to absent oneself from trial or for the proposition that a Judge cannot require an accused to be present during his or her trial unless (exceptionally) he or she is excused or excluded by the Judge (for example for medical reasons or misbehaviour). It is merely authority to the same effect as Jones.

[67] The right of an accused to be present at his or her trial does not, in our view, encompass a right to absent him or herself from the trial. To the contrary, it carries an obligation to be present. Absenting oneself voluntarily runs the risk that a trial may be carried on in one’s absence but the discretion to do so is only exercised with caution and is subject to the absolute right to a trial that is as fair as circumstances permit and that would lead to a just

outcome (see at [14] of Jones). However, an accused who voluntarily chooses not to exercise the right to be present (and who cannot be located) cannot complain about the inevitable consequences of a trial held in his or her absence (see at [11] of Jones).

[25] As is emphasised in Jones and Chatha the discretion to conduct a trial in the absence of the accused is to be exercised only with caution, and is subject to the absolute right to a trial that is as fair as circumstances permit, and that would lead to a just outcome.

[26] From time to time the Courts have ruled that the rights of an accused person have not been infringed where the accused has been absent for a portion of the trial. Examples are: R v Hika (1986) 2 CRNZ 245, R v van Yzendoorn, and R v Chatha. In the present case the Crown seeks to try the accused in his absence from the outset. In R v Sthmer HC WN T1064/01 17 June 2003, Ellen France J concluded that the Court had jurisdiction to start a trial in the absence of an accused as well as to continue it in his absence. Heath J concurred with that conclusion in R v Williams (No.5) (2004) 21 CRNZ 704 at [44]. In Williams and in R v McFall (2005) 21

CRNZ 717, this Court directed that multi-accused trials ought to proceed against all accused, despite the fact that certain accused had absconded prior to trial (one accused was absent in Williams and four in McFall).

[27] There appears to have been no case in this country in which the Court has decided to commence a trial against a single accused in his or her absence, where the accused has absconded. In R v Sthmer Ellen France J refused an application by the Crown to have the accused tried in his absence. He had pleaded not guilty to a number of charges of supplying drugs and was remanded on bail. Subsequently he failed to report to police and then failed to appear in the High Court for trial. Eighteen months later he had not been arrested and had not voluntarily surrendered himself. The Crown nevertheless wished to proceed without him. Ellen France J declined to grant the application in the exercise of her discretion. She considered that although, as in all cases, fading witness memory was a relevant issue, the need to consider the position of victims did not arise. Assuming that a discretion arose under s 376, the Judge noted that the discretion will be exercised only rarely, and

that there was insufficient reason to single out that particular case for the exercise of the discretion.

[28] In Sthmer and indeed in the other recent New Zealand authorities to which I have referred, it was accepted that the Court, in exercising its discretion, ought to take into account factors of the type discussed by the Court of Appeal in Jones, reported in the Court of Appeal as R v Hayward [2001] 3 WLR 125. There, at [22(5)], Rose LJ, delivering the judgment of the Court, said that:

(5) In exercising that discretion, fairness to the defence is of prime importance but fairness to the prosecution must also be taken into account. The judge must have regard to all the circumstances of the case including, in particular: (i) the nature and circumstances of the defendant's behaviour in absenting himself from the trial or disrupting it, as the case may be and, in particular, whether his behaviour was deliberate, voluntary and such as plainly waived his right to appear; (ii) whether an adjournment might result in the defendant being caught or attending voluntarily and/or not disrupting the proceedings; (iii) the likely length of such an adjournment; (iv) whether the defendant, though absent, is, or wishes to be, legally represented at the trial or has, by his conduct, waived his right to representation; (v) whether an absent defendant's legal representatives are able to receive instructions from him during the trial and the extent to which they are able to present his defence; (vi) the extent of the disadvantage to the defendant in not being able to give his account of events, having regard to the nature of the evidence against him; (vii) the risk of the jury reaching an improper conclusion about the absence of the defendant; (viii) the seriousness of the offence, which affects defendant, victim and public; (ix) the general public interest and the particular interest of victims and witnesses that a trial should take place within a reasonable time of the events to which it relates; (x) the effect of delay on the memories of witnesses; (xi) where there is more than one defendant and not all have absconded, the undesirability of separate trials, and the prospects of a fair trial for the defendants who are present.

[29] In the present case, counsel accepted the applicability of the foregoing guidelines and addressed them in detail.

This case

[30] The first of the Jones criteria concerns the nature and circumstances of Mr Kumar’s behaviour in absenting himself from the trial. I have set those circumstances out earlier. I draw the inference that Mr Kumar’s absence is deliberate, was premeditated, and was aimed at subverting the trial process. That conclusion is inevitable, in my view, given that he had on all previous occasions

complied with his bail conditions, and has been confirmed post-ruling by the fact that there has been no communication from him since the trial began, almost a week ago.

[31] The second consideration is whether an adjournment might result in Mr Kumar being caught, or attending voluntarily. As to that, it is not possible to reach any firm conclusion, but it is relevant to note that Mr Kumar has adopted several aliases in the past, and has had a number of concurrent passports. There is a distinct possibility, in my view, that he will not be located for a very considerable time. So any adjournment, if granted, might well be very lengthy (the third consideration).

[32] The fourth factor is whether the accused, although absent, will be represented at his trial. As discussed below, Mr Kaye sought, once my ruling was given, leave to withdraw. I refused leave for the reasons set out below. Although Mr Kumar himself is absent, he will be represented throughout the trial by very experienced counsel.

[33] The next related factor is the extent to which counsel will be able to present the accused’s defence in his absence. That factor is connected to the next point, namely the extent of the disadvantage to the accused in not being able to give his account of events.

[34] There is no doubt that the accused will be significantly hampered in the conduct of his defence by reason of his absence. Identity is not in issue in this case. Rather, the defence is that the claimed offending did not occur. In the case of Ms R, it is said that the argument over money culminated in her walking away without hindrance. No sexual activity took place. In the case of Ms L, the accused accepts that he touched her breasts, but says that she consented to that. He denies however that sexual intercourse occurred between them, or that he offended against her in any other way.

[35] It 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.

That is a powerful consideration in the present case. Of necessity the Court must pause before ruling that the trial must nevertheless proceed. The fact that the accused did not intend to give evidence was a decisive factor in Hika, in the ultimate ruling that the trial should continue in the absence of the accused, who absconded at the conclusion of the Crown case.

[36] Then there is the risk that the jury might reach an improper conclusion about the absence of the accused from the trial. At the outset of the case, I told the jury that they would note that Mr Kumar was not present in the courtroom, that that was unusual, but was not unheard of. They should simply put his absence to one side and should not speculate upon the reasons for it. My impression, for what it is worth, is that the jury accepted that explanation, and that thereafter they embarked upon their duties in the ordinary way. Nothing has been said in the trial that might increase the risk of improper speculation on the part of the jury. I do not regard this factor as presenting a significant impediment to the Crown.

[37] The next point is the seriousness of the offending. These are very serious allegations. If convicted the accused is likely to face a lengthy term of imprisonment. In the light of that, the general public interest in the prompt trial of serious charges is engaged.

[38] Then there is the interest of victims and witnesses. Here, the Crown was able to mount a powerful argument that the trial should continue. 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 Ms McClintock 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. Ms McClintock 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 Ms McClintock had earlier told the Court. In the initial stages Ms R was 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, Ms McClintock 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.

[43] Mr Kumar has voluntarily absented himself from his trial. He thereby chose to run the risk that the trial may take place in his absence. The judicial discretion to proceed in these circumstances is to be exercised only with caution: Chatha at [67]. Such cases will necessarily be rare, and therefore exceptional: Sthmer at [33]; Williams (No.5) at [51]).

[44] After careful consideration I determined that this was an exceptional case, and that the discretion ought to be exercised in favour of the Crown. I therefore directed that the trial should proceed without Mr Kumar.

[45] The principal factor which led me to that conclusion concerns the interests of the complainants. As earlier indicated, each is a reluctant witness for whom the alleged offending was traumatic and the prospect of giving evidence distressing. It is not, in my view, in the interests of justice, that the case should be adjourned indefinitely with all that entails for the complainants.

[46] The case is quite different, for example, from the drug related offending before the Court in Sthmer, where there was no true victim. In some respects the case is akin to Jones where there were 35 witnesses, some of whom were civilians who had been subjected to a terrifying hold up by armed masked men at the time of the alleged robbery. Certain of the witnesses had indicated that they were unhappy about attending on a future occasion. The trial Judge, who decided to proceed in the absence of the accused, said (as recorded at [34] of the Court of Appeal judgment):

... On the other hand there is another competing interest which seems to me to take precedence over that particular one [the interests of the accused] and that is that there are 35 witnesses outside court who have come here for the second time today and who are anxiously awaiting the prospect of having to give evidence and in view of the defendants’ deliberate absenting of themselves the trauma that some of them have experienced during the course of this incident is unlikely to go away until such time as they actually have had this case finally dealt with ...

[47] The ordeal of giving evidence in the present case will be at least as great for the complainants as it would have been for the various witnesses in Jones. I do not see why that ordeal ought to be prolonged simply because this accused has elected to abscond rather than exercise his right to attend his trial.

[48] The principal countervailing consideration is the undoubted difficulty in which the conduct of Mr Kumar’s defence is placed. In the ordinary course of events, as Mr Kaye indicates, Mr Kumar would have given evidence for the defence, in which he would have denied the occurrence of the events which underpin the charges in the indictment, save for one charge of indecent assault involving the touching of Ms L’s breasts, which Mr Kumar claims to have been consensual. Because Mr Kumar is absent he cannot give the intended defence evidence. His defence is thereby hampered.

[49] But the accused nevertheless remains represented by very experienced counsel who has deftly put to the complainants in cross-examination elements of the defence. It is true that he has been hindered somewhat in that exercise because he is unable to call evidence which would have supported a more robust cross- examination than was actually undertaken. Nevertheless, the substance of Mr Kumar’s defence will be put to the jury, despite his own absence.

[50] To that extent the case is different from Jones where the appellant had been unrepresented at trial, his counsel having been granted leave to withdraw.

[51] As I indicated to counsel when giving my oral ruling, my first instinct was to dismiss the Crown’s application to proceed in the absence of the accused, but having listened to the oral argument and considered the principal authorities, I reached a clear view that this was one of those exceptional cases in which the trial ought to proceed, despite the accused’s deliberate absence from it.

Consequential issues

[52] Having given an oral ruling to that effect, I considered and dismissed an application by Mr Kaye for leave to withdraw from the trial. It is necessary to say at once that Mr Kaye’s application was both responsible and proper. He has been placed in an invidious position by his client’s decision to abscond, and as a result has been prevented from putting Mr Kumar’s defence in the best possible light. However, he does have detailed instructions from his client, having seen him just a few days earlier.

[53] As was noted in Jones, it is in general desirable that an accused person be represented, even if he has voluntarily absconded. Legal representation represents a valuable safeguard against the possibility of error and oversight. That was the approach adopted, for example, by Priestley J in R v McFall where three counsel who represented absconding accused applied for leave to withdraw. His Honour ruled at [61] that the interests of justice and the specific interests of the three absconding accused in particular, would not be served by permitting counsel to withdraw. The Judge ruled that all three counsel should attend the trial and represent the interests of the absconding accused as best they were able, during the trial.

[54] Accordingly, I declined Mr Kaye’s application for leave to withdraw. He has subsequently attended the trial and undertaken his duties in the usual way.

[55] Mr Kumar entered pleas of not guilty to the five counts set out in an earlier indictment on 25 March 2009 at criminal callover. At the commencement of the

trial, Ms McClintock presented an amended indictment containing additional counts, leave to present the fresh indictment having been granted by Wylie J in a judgment given on 27 August 2009.

[56] In Mr Kumar’s absence, Mr Kaye indicated that he had instructions to enter pleas of not guilty to each of the counts in the fresh indictment, and such pleas were taken through counsel accordingly. In my view that was a sufficient compliance with the requirements of s 356 of the Act.

[57] Finally, it is appropriate to record Mr Kaye’s concern about the way in which he should address the accused’s election not to call evidence. Mr Kaye’s instructions are that Mr Kumar wishes to give evidence in his defence. But of course the accused has elected to abscond, so the evidence is not available. Mr Kaye does not wish to mislead the Court by indicating that Mr Kumar elects to call no evidence, because that would not be in accordance with his instructions. Neither is he able to say that his client elects to give evidence in his own defence, because he is unable in fact to call any evidence.

[58] The problem is perhaps minor, but it is nevertheless very real. Ultimately, I indicated to Mr Kaye that it would be proper for him to advise the Court that he was not in a position to call defence evidence, and therefore there would be no such evidence. Mr Kaye was content to follow that procedure, which avoids unnecessary disclosure to the jury of the reasons for Mr Kumar’s absence, while at the same time accurately conveying Mr Kaye’s position.

C J Allan J