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Kumar v R

Kumar v R

Case [2013] NZCA 77 26 March 2013

Appeal

Jurisdiction

Legal Privilege

Admissibility of Evidence

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NOTE: PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BY S 139 OF THE CRIMINAL JUSTICE ACT 1985.

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

ANDTHE 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.
CPublication 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Kumar v R

Details

AGLC: Kumar v R [2013] NZCA 77
Case: [2013] NZCA 77
Decision Date: 26 March 2013

CaseChat Overview and Summary

Pravin Kumar was convicted by the High Court of charges of sexual offending involving two complainants. Kumar had absconded prior to the start of the trial and the trial proceeded in his absence. Kumar appealed against his conviction and sentence on the basis that the trial judge should not have proceeded to trial in his absence and that this resulted in a miscarriage of justice. Kumar argued that the trial judge should have granted an adjournment in order to locate him and that his absence led to a significant disadvantage in the presentation of his defence. The Court of Appeal allowed Kumar's appeal, quashed his conviction and sentence and ordered a retrial. The Court of Appeal found that the trial judge should have adjourned the trial to enable the police to locate Kumar. Kumar's absence led to significant difficulties for his defence counsel in presenting his defence. The Court of Appeal noted that Kumar's absence was not deliberate and that he had a mistaken belief that an adjournment would result from his non-appearance. The Court of Appeal found that the seriousness of the charges against Kumar and the impact on the complainants in a retrial were relevant factors but that an adjournment should have been granted.

Orders