R v Kumar
[2012] NZHC 1912
•1 August 2012
NOTE: PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985.
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2011-092-011460 [2012] NZHC 1912
THE QUEEN
v
PRAVIN FIA HARI PRASAD KUMAR
Hearing: 30-31 July 2012, 1 August 2012
Appearances: A M McClintock for Crown
S Lance for Accused
Judgment: 1 August 2012
Reasons: 1 August 2012
VERDICTS & REASONS FOR VERDICTS OF VENNING J
Solicitors: Crown Solicitor, Auckland
Copy to: S Lance, Auckland
R V KUMAR HC AK CRI-2011-092-011460 [1 August 2012]
Introduction
[1] The accused Pravin Fia Hari Prasad Kumar faces two counts of wilfully attempting to pervert the course of justice. He has pleaded not guilty to both counts.
[2] At the request of the accused this Court made an order that he be tried without a jury on the grounds that it was in the interests of justice to do so.
[3] The Crown charges Mr Kumar:
Count 1
On or about 8 June 2011 at Auckland he wilfully attempted to pervert the course of justice. The particulars are contacting SL via a telephone call at
9.29 a.m.
Count 2
On or about 13 June 2011 at Auckland he wilfully attempted to pervert the course of justice. The particulars are that he contacted SL via telephone calls on three occasions, 9.12 a.m., 10.59 a.m. and 1.03 p.m.
[4] The following are admitted facts for the purposes of s 9(2) of the Evidence
Act 2006:
(a) On 13 October 2009 the accused was convicted of the following charges against SL:
(i) kidnapping;
(ii) indecent assault (by touching SL’s breasts); and
(iii) sexual violation by rape.
(b) The convictions followed a trial that proceeded in the accused’s
absence because he chose not to attend.
(c) On 19 March 2010 the accused was sentenced on the above charges. (d) On 29 March 2010 the accused appealed his conviction to the Court
of Appeal. That appeal is yet to be heard.
[5] The charges before the Court arise out of the accused’s contact with SL after trial and before his appeal against conviction has been heard.
Directions
[6] Although this is a Judge alone trial I remind myself that I must reach my decision uninfluenced by prejudice or sympathy for anyone associated with the case. I decide this case solely on the evidence and after considering counsels’ addresses.
[7] Again, although well understood, I remind myself that the onus of proving the charges against the accused lies on the Crown. The starting point is that the accused is entitled to the presumption of innocence on both counts. The Crown must prove the accused guilty on each of the counts beyond reasonable doubt. I accept that this is a very high standard of proof which the Crown will have met in this case, only if, at the end of my consideration I am sure the accused is guilty of the particular charge. It is not enough for the Crown to persuade me the accused is probably guilty or even that it is very likely he is guilty.
[8] I also remind myself that where, as here, there are two counts the evidence in relation to each count must be considered separately and it is by no means certain that the verdicts will be the same.
[9] Finally, I remind myself as to the effect of the accused’s election to give evidence. The accused has given evidence directed at providing an explanation for making the telephone calls to SL. The accused did not have to give evidence. The fact he has done so does not alter the burden on the Crown to prove the charges. The
question remains: “Has the Crown proved the accused guilty beyond reasonable doubt”?
[10] The accused gave evidence that by making the calls he intended to get the truth out of the case. He wanted to find out why SL had changed her story before trial. The evidence is particularly relevant to the accused’s state of mind at the relevant time. If I were to accept what the accused says about that it would be relevant to the defence advanced that it is not an offence to seek to have a witness tell the truth. If I were to accept that evidence then the Crown would have to negate the defence by proving that the accused used unlawful or improper means to do so.
[11] If the accused’s evidence was to leave me unsure on that point, then the result would be the same because I would have been left with a reasonable doubt on that issue.
[12] If, on the other hand I disbelieve the accused’s evidence in part or in whole then I remind myself that I should just put his evidence to one side. I accept that, even if I was to reject the accused’s evidence that does not mean he is guilty. I must assess the evidence that I do accept as reliable and consider whether that evidence satisfies me of the accused’s guilt to the required standard on each count.
The Crown case
[13] The Crown case is that the accused obtained a contact telephone number for SL by deceit, then from prison called her and spoke to her directly. The Crown says he did so in order to attempt to get her to say something contrary to the evidence she had given at trial with the intention of having her change or withdraw that evidence.
The defence case
[14] The defence case is that the accused was uneasy about the evidence SL had given at trial and wanted to find out why she had changed her story. SL had initially said there had not been penetration but prior to trial she had changed her account of the incident. Mr Lance submitted that, while the accused’s actions may have been
unfortunate, he had not acted unlawfully or improperly. He had not threatened or intimidated SL.
The elements of the offending
[15] Both charges are laid under s 117(e) of the Crimes Act 1961:
Every one is liable to imprisonment for a term not exceeding 7 years who—
...
(e) wilfully attempts in any other way to obstruct, prevent, pervert, or defeat the course of justice in New Zealand or the course of justice in an overseas jurisdiction.
[16] The Crown allege the accused wilfully attempted to pervert the course of justice. In Mitchell v R the Court of Appeal recently set out the requirements of the s 117(e) offence:1
... The phrase “in any other way” must be read with the preceding subsections, which speak inter alia of attempting to dissuade a witness by threats, bribes or other corrupt means.
[16] The essential requirements of the s 117(e) offence for present purposes are that the act had a tendency to pervert or obstruct the course of justice by dissuading the complainant from giving evidence at the pending trial and that the accused intended her act would have that effect. McMahon v R [2009] NZCA 472 at [87]].
[17] The question whether an act has the tendency to pervert the course of justice must be answered in all the circumstances of the case, including the nature of the proceeding, the method and timing of the interference, and the relationship between the witness and the person interfering: [R v Kellett [1976] QB 372].
The decision will depend on all the circumstances of the case, including not merely the method of interfering, but the time when it is done, the relationship between the person interfering and the witness and the nature of the proceedings in which the evidence is being given. Pressure which may be permissible at one stage of the particular proceedings may be improper at another. What may be proper for a friend or relation or a legal adviser may be oppressive and improper coming from a person in a position of influence or authority.
For these reasons the question is answered by the jury, although the Judge may be called upon to decide whether there is evidence on which a properly directed jury might convict.
[17] In the majority of cases of attempting to pervert the course of justice by interfering with a witness the actus reus will be accompanied by an unlawful means such as threats, bribery or other corrupt means so that the charge will be under s 117(a). However, where the alleged offending relates to interference with witnesses it is not necessary under s 117(e) that the accused’s actions involve threats, bribes or other corrupt means as those issues are provided for in s 117(a): R v Toney
& Ali (Tanveer)2 and Librizzi v State of Western Australia.3 Subject to the following
point, the use of unlawful means is not an essential ingredient in the offence under s 117(e).
[18] While it is not an offence to seek to persuade a witness, by reasoned argument, to tell the truth it is an offence to seek, by unlawful or improper means to have a witness give evidence different to that which they would have given if left to their own choice even if the accused believes the intended evidence to be false:
Librizzi v Western Australia;4 R v Taffs;5 R v Kellett;6 and R v Toney & Ali
(Tanveer).7
Section 117(e) elements
[19] Applying the authorities to the present case the Crown must prove beyond reasonable doubt:
(a) There is a relevant course of justice (in NZ).
(b) The accused spoke to SL on the dates in the counts (admitted).
(c) The accused must have spoken to SL with the intention of perverting the course of justice. To pervert is to adversely influence or interfere with the course of justice – that is to adversely influence or interfere
with the proper finalisation of Court proceedings. Justice must take
2 R v Toney & Ali (Tanveer) [1993] 1 WLR 364; [1993] 2 All ER 409 (CA).
3 Librizzi v State of Western Australia (2006) 167 A Crim R 26 (WA) (CA).
4 Above n 3.
5 R v Taffs [1991] 1 NZLR 69.
6 R v Kellett [1976] QB 372.
7 Above n 2.
its own course, and to attempt to influence or interfere with it can amount to perverting it.8 In this case the Crown must prove the accused spoke to SL with the intention of having SL change or withdraw her evidence either for the purpose of the appeal or any retrial other than of her own free will.
Note: The Crown must exclude the reasonable possibility that the accused intended no more than to have SL tell the truth in the course of the appeal or any retrial.
However this defence would not be available to the accused if he used unlawful or improper means to achieve that end.
(d)The accused’s actions must have had a tendency to achieve the end of perverting the course of justice.
The evidence and findings on the elements
Course of justice
[20] The course of justice is not limited to the lead up to and the initial trial of the accused. The course of justice extends beyond that to include the process of his appeal to the Court of Appeal (which itself encompasses the possibility of a retrial). While there are extant proceedings before the Court, which put in issue the accused’s liability for criminal offending or which have the potential to impact on his liability there is a course of justice because the process of the administration of justice is yet to be completed. The first element is made out.
Did the accused contact SL on 8 and 13 June?
[21] As noted, Mr Kumar admits that he contacted SL by telephone on 8 and 13
June 2011. He also admits that he rang his brother on 9 June 2011. The content of the calls the accused made to SL is not in issue either. They were recorded and
played to the Court. Although the accused accepted he called his brother on 9 June, the conversation was in Hindi. It has been translated by Mr Natali, a Hindi interpreter. At times during his evidence the accused suggested the transcript prepared by Mr Natali may not be accurate. I reject that. I accept that the transcript was an accurate transcription. Mr Natali was not called for cross-examination. His evidence was read by consent. He is an experienced interpreter and confirmed that he checked the transcript after it was prepared.
[22] Although Mr Kumar admits he made the relevant calls, it is relevant to set out the background to them to describe the lengths he went to in order to contact SL as that is relevant to the remaining issues in the case. It provides background to the circumstances of the case.
[23] As a serving prisoner the accused was entitled to make calls to authorised numbers. Mr Miller of the Corrections Department confirmed that the approved numbers included a number 0800 276638, which Mr Fleet of Telecom confirmed was connected under the name of Alvin Kumar at 49 Buckland Road, Papatoetoe. The 0800 number diverted to Mr Alvin Kumar’s number of 09 277-0605 at the address 49 Buckland Road, Papatoetoe.
[24] Detective Mackie’s evidence was that the accused was able to contact unauthorised numbers in one of two ways – first by initially calling the 0800 number. The recipient of that call, apparently his mother, was able to then transfer the accused to another number using a three-way phone. She was required to dial the other number. The second way was for the accused to call the 0800 number and then for his mother to call a calling card. The accused could then access the calling card directly by using the keypad on the prison phone to dial the telephone number of a third party. The accused could thus dial his own numbers rather than relying on his mother to place the call for him.
[25] On 7 June 2011 the accused obtained a contact telephone number for Patricia Robinson, who was the key social worker at the time for SL. After a number of calls he obtained Ms Robinson’s number from the telephonist at the Mental Health Services Unit. He then called ICT Counties Manukau Health and asked to speak to
Patricia Robinson. In the course of that telephone conversation with Ms Robinson the accused represented that he was Dr Pillai. Dr Pillai had been engaged by the Crown to examine SL to assess her mental condition and give evidence as to it at the first trial. Ms Robinson knew Dr Pillai was a well respected consultant psychiatrist working with the Mason Clinic and from the extent of the caller’s knowledge about SL she believed that she was speaking to a health professional. The accused asked Ms Robinson for up-to-date contacts for SL. As she believed she was speaking to Dr Pillai, Ms Robinson told the accused SL was living at Jansen House and gave him the telephone number for Jansen House.
[26] The next day, using the calling card, Mr Kumar rang Jansen House. Initially he spoke to Manoj Kumar, a community support worker. The accused identified himself to Mr Kumar as Dr Singh. Mr Manoj Kumar then gave the phone to SL.
[27] During the course of the call on 8 June the accused introduced himself to SL as “Dr Singh on behalf of Dr Pillai”. He asked her for her personal mobile number. She gave it to him. He then discussed her prescription medicine with her by name and referred to her previous community support worker, Rita Chant. He was able to discuss these matters in detail because he had access to the trial disclosure pack and the evidence Dr Pillai had given at trial. The accused asked SL for the address that she had been living at in Pakuranga before Jansen House. She gave it to him and also confirmed that she would be going back to that address when discharged from Jansen House. Later in the conversation he discussed other medicines she was taking with her.
[28] He then directly raised with her the incident that led to his conviction. I will refer to that in more detail shortly.
[29] The accused also rang SL on 13 June. Although the Crown relies on all three calls that day as a course of dealing, it is the first call on 13 June which is particularly relevant to the second count. The accused made the first call at
9.12 a.m. After calling the 0800 number from prison, the accused was put through to the Jansen House number, apparently by his mother. His call to Jansen House was taken by Ms Mata Lafu, who was also known as Brenda. Ms Lafu was a community
support worker at Jansen House at the time. Ms Lafu confirmed that, after taking the call she handed the telephone over to SL who was passing or near the office at the time. SL took the call in the office. She conducted the call with the accused in the presence of Ms Lafu. Ms Lafu said she was concerned at some of the responses SL was making and tried by hand signals to stop her mentioning the names of other patients and also to terminate the call.
[30] After talking to SL about movies and a number of other people that SL knew, and also about SL’s cat and her parents, (during the course of which he obtained SL’s mother’s telephone number), the accused then broached the issue of his offending. Again, I return to the detail of that call shortly.
[31] When the accused realised that SL was taking the call in the office and that
Brenda, a social worker was present, he terminated it.
[32] As noted, the accused contacted SL on two further occasions that day. He first tried to contact her by using the general number for Jansen House. His call was again answered by Mr Manoj Kumar. Although he again introduced himself as Dr Singh, Mr Manoj Kumar was, by this time, suspicious. The accused terminated that call. Then, using the calling card he rang SL’s cell phone direct at about 10 past 11 in the morning. She was not able to speak to him as she was in the car. Then later at
1.03 p.m. he rang SL’s cell phone number direct using the calling card again. She told him she was in a group activity. The call was terminated.
[33] In summary, the second element is established.
Were each of the calls made deliberately with the intention of wilfully attempting to pervert the course of justice?
[34] The third issue in this case and a major issue is whether, in contacting SL, the accused was wilfully attempting to pervert the course of justice. Was he acting with the intention of having her change or withdraw her evidence, either for the purpose of the appeal or any retrial (other than of her own free will), or, as the defence
argues, was he doing no more than seeking to clarify why SL had changed her story before trial or to have her tell the truth in the course of the appeal or retrial.
[35] The content of the telephone discussions with SL are relevant to this and the remaining issue the Crown must prove. The particularly relevant parts of the call on
8 June (count 1) are:
Accused: You know the flash backs, are they pretty much gone? SL: Um my flash backs are pretty much gone yeah.
Accused: The flash backs yeah cause that that’s it’s been a while since that um incident, isn’t it?
SL: Yeah. Accused: Yeah.
SL: It’s been like three years.
...
Accused: Yeah, is .. is the, so so everything the case which happened the incident it’s all closed aye? [T]he police has not been to see you or?
SL: Nuh.
Accused: Has Lisa said anything? SL: Nuh.
Accused: Yeah because that was a huge pressure from Lisa and the
police, isn’t it?
SL: Yeah.
Accused: Yeah because um the police were putting a lot of things across to you which never sorta happened, you know what I mean?
SL: Yeah.
Accused: So its hard to fabricate things and say it, isn’t it?
SL: Yip well he got 13 years. Accused: Pardon?
SL: He got 13 years.
Accused: Yeah yeah yeah. Do you think he deserves that?
Accused: Yeah okay yeah. So okay you look after yourself and god bless you, okay SL?
SL: Okay.
Accused: Bye bye SL, you have a nice day. SL: You too, bye.
[36] The particularly relevant parts of the first call on 13 June (count 2) are:
Accused: ... Can you still recall the incident clearly? SL: Yeah
Accused: What’s in your recall [S]?
SL: Everything even from when he picked me up.
Accused: Yeah, yeah, but initially he was quite friendly to you, isn’t
he?
SL: Yeah he was. Accused: Yeah
SL: Yeah he was really nice.
Accused: Yeah, but but he, I mean he didn’t know about your mental
condition did he?
SL: No he didn’t.
Accused: Yeah, but also like there was no um I mean, just as lucky you got away before ah he, ah nothing happened though eh?
SL: Yeah, well I tried to get away twice. Accused: Yeah
SL: He, he grabbed me by the scruff. Accused: Yeah
SL:And then he leaned forward, um, in the passenger seat to grab a beer and then I ran.
Accused: Yeah, that’s right, yeah.
SL: Yeah
Accused: But just as lucky there was no um intercourse or anything you know.
Accused: Yeah, he only just touched you there didn’t he?
SL: Nah, he, he properly raped me. Accused: Pardon?
SL: He properly raped me. Accused: He properly?
SL: Raped me, wasn’t just touching
Accused: Yeah, but this is um Lisa and the support workers that
Michael Mackie have been saying to you isn’t it?
SL: Yeah
Accused: Yeah, but it’s good you’re making progress isn’t it [S]? SL: Yeah I’m making progress.
[37] Then after discussion about Rainbows End the accused carried on to ask SL
about when she attended Greenlane Hospital following the incident:
Accused: But ah to that Doctor, you indicated that there was no intercourse eh?
SL: Yeah, and then I changed my story.
Accused: Yeah, because someone told you to change your story aye? SL: No-one, no-one told me to change my story. I just didn’t, I
felt um ashamed. Accused: Yeah
SL: So I never said anything
Accused: Yeah, yeah, but see [S] what happened was that in the car, remember, can you recall um when he touched you in the back seat
SL: Yeah
Accused: With, before the intercourse you got away didn’t you?
SL: No I didn’t.
Accused: Yes, you ran away and you went round the
SL: That was after it!
Accused: No, but you can’t, you cannot, it’s impossible to take the
clothes off while still seated in the car.
SL: I know what happened! Accused: Yeah
SL: I know what happened.
Accused: Yeah, but there was no intercourse. SL: (No answer).
Accused: Because um because it was just as lucky that you got away before anything happened.
SL: No, I know what happened.
...
Accused: Yeah, yeah, yeah. But see um because people have been
pressuring you to tell lies isn’t it?
SL: Am I telling lies?
Accused: No, the people have been encouraging you. SL: People are encouraging me to tell lies? Accused: Yeah
SL: No-one’s encouraging me to tell lies.
[38] In addition to the telephone discussions with SL the accused’s telephone call to his brother on 9 June is also relevant to this issue. During the course of that telephone call there was the following exchange:
Accused: This is the story. Okay there’s another story that I want to tell you quickly, the girl that I met she’s not stable. I spoke to her yesterday she lives in Papatoetoe, somewhere in mentally handicapped house like a boarding house, I found out that she lives there.
Brother: No use talking to them, this is the way they are.
Accused: She doesn’t understand. I told her that I’m a doctor and a psychologist and while talking to her I was told at the end that he got 13 years (unclear) then I say do you think he deserves it and she said yes, that’s what she said.
Brother: Is that right?
Accused: That’s what she said but I have found a contact but I will speak to her again but she has been advised yesterday (unclear) I said to her that the police and your support worker were forcing you to tell lies, that’s why you are getting flashbacks, yes that’s right but I’m okay now. Next week I’ll be moving into my flat in Pakuranga, she has a one bedroom flat, I have a flatmate there and they give me sleeping pills but I do not take those pills I throw them away. If I get a re-trial then I can do something. Do you understand?
Brother: Yes yes.
Accused: Then later on I can make some contacts. The police have spoken to the people in the last 10 months saying that I’m a bad person. If I can get a re-trial then I can tell these people that I’m not a bad person and the police are telling all the lies.
Brother: Yes yes.
Accused: I have to work systematically.
[39] That call is illuminating in a number of ways. First, it confirms that the accused was well aware of SL’s vulnerability. The accused knew she was not stable mentally. Next, when cross-examined, the accused was not able to provide a satisfactory or credible explanation for his comments to his brother. He flatly denied that he intended to keep contacting SL until she said something favourable to his case despite the fact that, during the course of the call to his brother he expressly referred to being able to do something if he got a retrial. That was immediately after confirming he had obtained SL’s address. Next, when asked for clarification from the Court as to what he meant by “I have to work systematically” the accused was unable to provide any satisfactory explanation.
[40] As to whether the accused’s actions went far enough, I note the Court of
Appeal, in R v Fawcett stated:9
... It is, we think, necessary to show that what was done was not mere preparation and too remote to constitute an attempt to obstruct, prevent, pervert, or defeat the course of justice. It must be immediately or proximately connected with the intended object, namely the obstruction etc of the course of justice.
9 R v Fawcett (CA 113/01, 28 June 2001) at [19].
[41] The accused went to quite some lengths to obtain contact details for SL, including where she was living at the time, the telephone contact for that, the address of her previous flat, and where she was to go after leaving Jansen House, her personal cell phone number, and her mother’s contact number. I infer he did so to ensure that he was able to maintain contact with her during the course of the appeal (and, in the event of a retrial, before such retrial) so that he could continue to contact her and raise the issue of her evidence with her until she bowed to the pressure he intended to, and was, exerting on her regarding the incident. I am sure that he intended to maintain the contact and continue to pressure her. The only reason the accused was not able to continue to contact SL, was that her social workers became suspicious and the police became involved.
[42] I reject the accused’s explanation for his actions. The accused was not a credible or convincing witness. He was forced to accept the content of the telephone calls to SL but was unable to properly explain why, if indeed he was just seeking to clarify what he considered to be the truth, it was necessary for him to personally contact her. Nor could he explain why it was necessary to obtain all of the details about her that he did.
[43] At the time the accused was making these calls, he was represented by counsel for the purposes of the appeal and had available to him the services of a private investigator, Mr Rhodes. Initially counsel for his appeal was Mr Gotlieb, who was not the counsel he says did not represent him adequately in the Court below. Mr Rhodes confirmed that he continued to work for the accused and was still engaged by the accused to carry out inquiries on his behalf but he did not do so without first discussing matters with counsel. If, as on his version the accused wished to get to the truth of the matter, there were sources available for proper inquiries to be made.
[44] The accused also said that he did not have any pre-prepared questions and was surprised to be put through to SL. I reject that evidence. He had gone to quite some lengths to obtain the contact for her. When he was put through to her he obviously was prepared because he was able to speak to her in detail about her medication. He represented himself as a doctor assisting Dr Pillai to obtain her trust.
He accepted he discussed a number of minor “innocuous” issues to build up her trust. I find the accused embarked on a carefully planned exercise to affect the evidence SL had given.
[45] In this context it is also relevant that not only did the accused speak to SL directly but he also went to the extent of establishing a relationship with and contact with a friend of hers, [KS] in an obvious attempt to obtain further information about SL which he could use.
[46] I do not accept the submission made on behalf of the accused and reflected in his evidence that he was simply making inquiries to try and establish the truth by putting certain propositions to SL according to his own theories which he honestly believed. I note that at no stage did the accused ask the question which he says he was particularly interested in, namely why SL changed her story.
[47] I reject the defence case that the accused intended no more than have SL tell the truth or to clarify why she changed her account of the incident.
[48] I am satisfied beyond reasonable doubt that the accused made both calls on 8 and 13 June that I have referred to, to SL with the intention of ultimately having her change or withdraw her evidence either for the purposes of his appeal or any retrial if granted. While Mr Lance made the point SL had already given her evidence, if a retrial was granted, as the accused hoped it would be as a result of the appeal, SL would have had to give her evidence again. The accused clearly intended to influence her.
[49] Even if I was in any doubt, which I am not, about the accused’s intention on the issue and the accused was, on his case, trying to do no more than have SL tell the truth I am in any event satisfied the means he used in this case were entirely improper so that that defence is not available on the facts.
[50] The accused knew SL was unstable mentally, he misrepresented he was a doctor to gain her trust, and then engaged her in conversation to built up a rapport
before challenging the evidence she had given. In doing so he employed improper means.
[51] Mr Lance suggested it was relevant, that in this case, unlike in R v Taffs10 and Mitchell v R11 SL has not been called to give evidence of the effect of the calls on her. However, unlike those cases the calls in the present case have been recorded and the entire content is before the Court. The Court does not need to hear from SL.
The focus must be on the accused’s intention during the course of those calls. That is apparent from the surrounding circumstances of the calls and the content of the calls. I find the third element proved beyond reasonable doubt.
Did the accused’s actions have a tendency to achieve the end of perverting the
course of justice?
[52] The last element in relation to both counts is whether the calls relied on can be said to have had the tendency to achieve the end of perverting the course of justice. While it is not necessary that the conduct actually cause the witness to alter his or her testimony, it is necessary that it has a theoretical tendency to affect the course of justice. It is irrelevant that the person sought to be influenced is incorruptible or did not understand the accused’s communication.12
[53] Whether what was done or said to a witness has the tendency to pervert the course of justice is for the jury (or in this case, the Judge alone) to decide, and will depend on all the circumstances of the case, including “not merely the method of interfering but the time when it is done, the relationship between the person interfering and the witness and the nature of the proceedings in which the evidence is
being given”.13 Pressure which may be permissible at one stage of the particular
proceedings may be improper at another. What may be proper for a friend or relation or a legal adviser may be oppressive and improper coming from a person in a
position of influence or authority.14
10 R v Taffs above n 5.
11 Mitchell v R above n 8.
12 Adams on Criminal Law at [CA117.04(6)] citing R v Aydin (2005) 11 VR 544 (Vic) (CA) at [7].
13 R v Kellett [1976] QB 372 (CA) at 729.
14 At 730.
[54] In this case the issue is whether the accused’s calls to SL had the tendency to cause her to change or withdraw her evidence either for the purposes of the appeal or any retrial (other than of her own free will).
[55] In this context the content of the calls is particularly relevant. During the first call the accused put two propositions to SL that she was under huge pressure from her support worker Lisa and the police, and then the accused said that “it was hard to fabricate things and say it wasn’t it”. As I read the transcript SL accepted that there was pressure in relation to the process but did not accept the suggestion of fabrication. Indeed she went on to say “he got 13 years and that he deserved it”. The accused then terminated the call.
[56] After careful consideration, I do not consider the accused went sufficiently far in the call the subject of the first count to enable the Court to be satisfied beyond reasonable doubt that his actions during the course of that call had the tendency to achieve the end of perverting the course of justice. While the accused had the necessary intention, and his actions were undoubtedly improper I am not able to say that I am sure the content of that call was sufficient to have had a tendency to have SL change or withdraw her evidence for the purpose of the appeal or any later retrial.
[57] The position is, however, quite different in relation to the first call relating to the second count dealing with 13 June. In the course of that call the accused took SL through the incident from his point of view, tried to suggest to her that nothing had happened, that there had been no intercourse, and that he only just touched her. He forcefully put those propositions to SL three times in three different ways.
[58] When SL did not accept the accused’s propositions and said that he properly raped her he then said again that the police and her support worker had said these things to her. While the accused then moved off the topic briefly to discuss Rainbows End he then took SL back to her initial complaint again and effectively told her that she changed her story because someone had told her to do so. He then again returned to the issue of his view of what happened in the car, and tried to tell SL that she got away before any intercourse. When she rejected that he did not, as Mr Lance submitted, accept the rejection but rather he put it again to her that she had
run away before intercourse. He then effectively engaged in an argument with SL by saying that she couldn’t have had intercourse and further, that it was impossible to take her clothes off whilst seated in the car. It is quite apparent from the call that by this stage SL was quite upset by what was said – she reacted strongly but despite that he then put again to her that there had been no intercourse and that she got away before anything happened.
[59] The accused’s conduct during this call is much worse than the conduct of the accused in R v Toney.15 The accused sought to bully SL, a person he knew to be vulnerable. I have no doubt that although she apparently rejected his proposition, the pressure the accused exerted during the course of the call would have had a tendency to make SL doubt her evidence so that there was a substantial risk that she might change or withdraw it other than of her own free will, which the accused could then
have used for the purposes of his appeal and/or any retrial that might be granted. All that would have been required is for SL to have discussed such a matter with one of her support workers under pressure from the accused. I am satisfied the last element is made out beyond reasonable doubt in relation to the second count.
Result
[60] Mr Kumar please stand. On count 1 I have found you not guilty and you are discharged. On count 2 I have found you guilty. You are remanded for sentence in this Court on count 2.
[61] On the count to which I have found you guilty, count 2, you are convicted and remanded for sentence in this Court at 9.00 a.m. on 6 September 2012. I direct a
pre-sentence report be prepared and a victim impact report.
Venning J
15 R v Toney [1993] 2 All ER 409 at 414
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