R v Kumar CA183/06
[2006] NZCA 462
•20 October 2006
ORDER PROHIBITING PUBLICATION IN NEWS MEDIA OR ON INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.
IN THE COURT OF APPEAL OF NEW ZEALAND
CA183/06
THE QUEEN
v
VIJENDRA KUMAR
Hearing: 10 October 2006
Court: Robertson, Williams and Panckhurst JJ Counsel: M J Robb for Appellant
P K Feltham for Crown
Judgment: 10 October 2006
Reasons: 20 October 2006
JUDGMENT OF THE COURT
AThe appeal is allowed and a new trial is ordered. The appellant may apply for bail in the District Court at Hamilton.
BOrder prohibiting publication in news media or on internet or other publicly accessible database until final disposition of trial. Publication in
law digest or law report permitted.
R V KUMAR CA CA183/06 10 October 2006
REASONS OF THE COURT
(Given by Robertson J)
Introduction
[1] At the conclusion of the oral hearing of this appeal, we announced that the appeal would be allowed and a new trial ordered. The reasons for that judgment are now provided.
[2] Vijendra Kumar faced trial on an indictment containing three counts: assault with intent to sexually violate; and two separate charges of indecent assault, one of which was an alternative to the first count. The jury returned a verdict of not guilty on the first count, but Mr Kumar was found guilty on the two counts of indecent assault. He was subsequently sentenced to an effective term of two years and three months’ imprisonment.
[3] He appeals against both conviction and sentence. The principal ground of the appeal against conviction is that there had been a miscarriage of justice as a result of a combination of:
(a)a failure by trial counsel to put the appellant’s case to the complainant and to adduce evidence relevant to it; and
(b) inadmissible evidence having been admitted at trial. The sentence is challenged as being manifestly excessive.
The facts
[4] The complainant was a middle-aged female real estate agent who had been involved with the appellant in viewing properties. The offending was alleged to
have occurred at one particular address, which was being shown to Mr Kumar as a prospective purchaser, late in the afternoon of 23 May 2005. The complainant said that Mr Kumar had pushed her up against a wall, kissed her and put her hand on his exposed penis saying that he wanted to have sex with her. This incident founded alternative counts of assault with intent to commit sexual violation and indecent assault.
[5] Mr Kumar and the complainant then returned to the complainant’s office where some paper work was completed. Later in the day they were together in the complainant’s car when she said Mr Kumar grabbed her hand from the steering wheel and placed it on his erect penis and made rubbing motions until he ejaculated.
Inadmissible evidence
[6] The second appeal point can be dealt with briefly. There was an interview of the appellant by Detective Sergeant Neville Ross. Prior to trial there was some editing of his recording of the interview. It was clear by the time of the appeal hearing that the properly edited material was all that had been introduced at the trial and that basically this issue was dead. It does, however, have a consequence for the more substantive issue as adverted to later.
Instructions to counsel
[7] We received evidence from Mr Kumar and his trial counsel with regard to the conduct of the trial.
[8] Mr Kumar contends, and trial counsel confirms, that his instructions were always:
(a) there was no sexual incident in the house as alleged;
(b)the masturbation in the car had taken place, but was consensual and instigated by the complainant;
(c) subsequently the complainant performed oral sex on Mr Kumar of her own volition in the car;
(d)there was constant pressure being exerted on Mr Kumar by the complainant with regard to sale or purchase of real estate;
(e) that there were various telephone calls in which pressure was exerted;
and
(f) eventually the complainant made a claim for $50,000 in return for which she would withdraw her complaint to the police about his behaviour.
[9] Notwithstanding these instructions, this is not how the trial was conducted.
[10] The last three issues are dependent on further information being available from Telecom about phone calls allegedly made by the complainant to the appellant. The relevant information was not available at trial and the issues were not discussed at all in evidence. The information was still not available at the time of the appeal hearing and will not be available for some time. Because of the view we take of the first three grounds, we did not delay the appeal for these issues to be pursued. There are requests in place which will furnish the base information upon which these matters may or may not be capable of ventilation at a re-trial.
[11] The nub of the live issues on the appeal is that, although trial counsel cross- examined the complainant about there being no sexual incident at the house address and on the assertion that the masturbation was at the complainant’s request, he made no mention of Mr Kumar’s assertion that the complainant had subsequently performed oral sex on him of her own volition in the car.
[12] Although the Crown suggested that Mr Kumar might have raised this matter himself, or responded to an inquiry in the course of trial as to whether counsel had covered everything in cross-examination, the realistic position is fairly and properly set out by trial counsel in his affidavit before us:
I accept as counsel that whilst Mr Kumar did not raise some of these issues during the trial, it is my responsibility to ensure that my clients instructions are followed. Counsel does not wish to be seen to excuse such oversights by placing the responsibility with the client. The trial arena is foreign to most clients and it is my responsibility to ensure the defence case is properly put. It is for this reason I advised Mr Kumar after the trial that he should instruct new counsel with a view to reviewing the file to identify any possible grounds for appeal. In doing so I identified for him the grounds I felt would need considering which included the oversights particularly the failures to put the oral sex and the phone call of 31 May.
[13] When the omission first came to light during the evidence in chief of Mr Kumar, the trial Judge and the Crown were advised. It was agreed that trial counsel should speak to Mr Kumar about the problem. Crown counsel made clear that if Mr Kumar were to raise the issue of oral sexual connection in his evidence, the Crown would seek leave to recall the complainant so that she could be examined about it. It was trial counsel’s advice to Mr Kumar that this would be disastrous and would be most undesirable to have the complainant back in the witness box and Mr Kumar eventually acquiesced with the suggestion that he should keep away from the topic entirely.
[14] No-one makes any criticism of trial counsel’s judgment in that salvage situation. But in terms of R v Sungsuwan [2006] 1 NZLR 730 (SC) the crucial question is whether there had been some irregularity in the trial which prejudiced the accused’s chance of an acquittal. The effect of Sungsuwan is to focus on the safety of the verdict rather than on the nature of the error by counsel.
[15] Tipping J adverted to the point at [110] when he said:
Against that background I move on to discuss what the correct approach should be. Before an appellant can succeed in an appeal involving a complaint about counsel’s conduct, the appellant must demonstrate a miscarriage of justice. What then are the ingredients of a miscarriage of justice for this purpose? Ordinarily two things must be shown. First, something must have gone wrong with the trial or in some other relevant way. Secondly, what has gone wrong must have led to a real risk of an unsafe verdict. That real risk arises if there is a reasonable possibility that a not guilty (or a more favourable) verdict might have been delivered if nothing had gone wrong. It is, of course, trite law that an appellant does not have to establish a miscarriage in the sense that the verdict is unsafe. The presence of a real risk that this is so will suffice.
[16] In Sungsuwan, the majority in the Supreme Court having reviewed the approach to appeals advanced on the grounds of errors in competence or misconduct of defence counsel at trial both here and abroad concluded at [58]:
… The common principle is that prejudice to the outcome of the trial is the trigger for appellate intervention. In rare cases in which counsel incompetence is such that the defendant can be said to have had no effective representation, prejudice is presumed. In the more usual cases of alleged error or incompetence the conduct is measured against a reasonableness standard. But even when that standard is not met, material prejudice to the defence must be established.
And later the majority concluded at [70]:
In summary, while the ultimate question is whether justice has miscarried, consideration of whether there was in fact an error or irregularity on the part of counsel, and whether there is a real risk it affected the outcome, generally will be an appropriate approach. If the matter could not have affected the outcome any further scrutiny of counsel’s conduct will be unnecessary. But whatever approach is taken, it must remain open for an appellate Court to ensure justice where there is real concern for the safety of a verdict as a result of the conduct of counsel even though, in the circumstances at the time, that conduct may have met the objectively reasonable standard of competence.
[17] The present case is not one of counsel, with client approval or acquiescence, making an available judgment call about which an accused person who was convicted subsequently wants to complain. This is the unusual case in which trial counsel candidly accepts that he forgot to cross-examine on relevant points and then tried to do the best he could in the situation which he had created.
[18] An additional problem arises from the facts related to the second issue on appeal. Because of the editing of the statement which had been undertaken, Mr Kumar had been clearly instructed by trial counsel that there were certain matters which were not to be discussed. Detective Ross, in giving his evidence in chief, mentioned that there had been telephone calls from Mr Kumar to the complainant, but went on to say:
I am not sure I can say what some of those calls were about and it may be something that perhaps can be discussed separate …
To which the Judge noted:
Well I’ll leave it to counsel to see where they want to go with that.
[19] The tantalising nature of this comment was rather embroidered when trial counsel himself said:
We don’t want to tread where angels fear to go …
[20] Regrettably the subject was referred to further in re-examination by Crown counsel, although the Court endeavoured to retrieve the matter by saying:
I think we need to be careful here because cross-examination’s stopped and I think there’s a danger that the answer then – dealing with matters that weren’t raised in cross-examination? … Sir, perhaps if I can answer it which is very neutral, that there were things he said which, ah, I did look into, which took the matter no further one way or the other and they were almost aside from what we were investigating.
[21] It is reasonable to conclude that this added to Mr Kumar’s apprehension that there were things which had happened that he was not to talk about.
[22] His counsel now submits that all of this is likely to have conveyed to the jury an unfavourable impression about the appellant, leading them to think there were things happening behind the scenes which would have put the appellant in a poor light, but the jury was not going to know about them.
[23] Against that background, we have the situation of what to Mr Kumar was a central part of what had occurred being off-limits to him.
[24] Ms Feltham suggested that the absence of any discussion about the oral sex in the trial had probably assisted (rather than been a detriment to) Mr Kumar’s presentation. We are not satisfied that this is the case.
[25] The credibility of the complainant and the appellant were absolutely crucial in this case. We concluded that it was an inevitable consequence that, as a result of the trial counsel’s failure to raise a critical part of his client’s case in cross- examination of the complainant, when Mr Kumar came to give evidence he was under constraint and restriction. This meant he could not give the best account of
himself in a way which was to his benefit and to put the best possible light on the case which he was wishing to present.
[26] There are a number of instances in the trial transcript which demonstrate the controls upon him and the holding back which he was doing. We accept this could reasonably have affected his presentation and directly impacted on his credibility in the eyes of the jury.
[27] Accordingly we concluded that, as a result of the oversight by counsel including the effect of this in Mr Kumar’s ability to give evidence in a frank and open way, there was a risk that the verdict was unsafe.
Result
[28] For those reasons we concluded that the convictions must be quashed and a new trial ordered on the two counts of indecent assault. The issue of bail was left for consideration in the District Court.
Solicitors:
Crown Law Office, Wellington
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