NOTE: PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF
COMPLAINANT PROHIBITED BY S 139 OF THE CRIMINAL JUSTICE
ACT 1985.
IN THE COURT OF APPEAL OF NEW ZEALAND
CA575/2012
[2014] NZCA 116
BETWEEN
PRAVIN FIA HAVI PRASAD KUMAR
Appellant
AND
THE QUEEN
Respondent
Hearing:
10 March 2014
Court:
Wild, Goddard and Clifford JJ
Counsel:
R M Lithgow QC for Appellant
KAL Bicknell for Respondent
Judgment:
2 April 2014 at 12 pm
JUDGMENT OF THE COURT
A
The appeal against conviction is dismissed.
B
The appeal against sentence, having been abandoned, is also dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Wild J)
KUMAR V R CA575/2012 [2014] NZCA 116 [2 April 2014]
Introduction
[1]
Mr Kumar appeals against his conviction for wilfully attempting to pervert
the course of justice.1 He was convicted by Venning J following a judge alone trial
in the High Court at Auckland.2 Before us, Mr Kumar abandoned his appeal against
the sentence of three years imprisonment subsequently imposed on him.
[2]
Following a jury trial in October 2009 Mr Kumar was convicted of raping a
young woman we will call L. He was sentenced to preventive detention.
[3]
In June 2011, from prison, he made a number of telephone calls to L. The
conviction under appeal relates to the first of three telephone calls he made on
13 June.
[4]
Mr Kumar argues that this telephone call was an unobjectionable attempt by
him to have L reflect on whether the evidence she had given at Mr Kumar’s trial was
correct.
[5]
The facts have never been in dispute; Mr Kumar’s telephone calls were
recorded by the prison authorities. Nor is there disagreement about the law. This
appeal challenges Venning J’s finding that the telephone call was an attempt by
Mr Kumar to pervert the course of justice, and not an unobjectionable attempt to
have L reflect on her evidence.
What happened
[6]
L gave evidence at Mr Kumar’s trial. As Mr Kumar was not present at his
trial, he did not hear L’s evidence. On 29 March 2010 he appealed against his
conviction. When he made the 13 June 2011 phone call he had counsel and a private
investigator assisting him. He also had the record of the trial, in particular the
transcript of the evidence given by L and by Dr Pillai. Dr Pillai was a respected
1
2
The offence is under s 117(e) of the Crimes Act 1961:
117 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 .
R v Kumar [2012] NZHC 1912 [Verdicts and Reasons for Verdicts].
psychiatrist who had been engaged by the Crown to assess L’s mental condition and
had given evidence about it at Mr Kumar’s trial.
[7]
Mr Kumar had first managed to obtain the telephone number for
Ms Robinson, L’s key social worker. He then rang Ms Robinson who told him L was
living at a place providing sheltered accommodation for mentally unwell people and
provided the telephone number.
[8]
On 8 June 2011, posing as “Dr Singh on behalf of Dr Pillai” Mr Kumar
obtained L’s personal mobile number from a support worker at the sheltered
accommodation, and was able to telephone L directly, still posing as Dr Singh.
[9]
Mr Kumar made three successive phone calls to L on 13 June. Mr Kumar’s
conviction, and thus this appeal, is founded on the first telephone call. Mr Kumar
began this call with small talk about movies, other people L knew, L’s cat and her
parents. In his reasons for verdicts Venning J set out the relevant parts of the
remainder of this phone call:
[36]
are:
The particularly relevant parts of the first call on 13 June (count 2)
Accused:
… Can you still recall the incident clearly?
L:
Yeah.
Accused:
What’s in your recall [L]?
L:
Everything even from when he picked me up.
Accused:
Yeah, yeah, but initially he was quite friendly to you,
isn’t he?
L:
Yeah he was.
Accused:
Yeah.
L:
Yeah he was really nice.
Accused:
Yeah, but but he, I mean he didn’t know about your
mental condition did he?
L:
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?
L:
Yeah, well I tried to get away twice.
Accused:
Yeah.
L:
He, he grabbed me by the scruff.
Accused:
Yeah.
L:
And then he leaned forward, um, in the passenger
seat to grab a beer and then I ran.
Accused:
Yeah, that’s right, yeah.
L:
Yeah.
Accused:
But just as lucky there was no um intercourse or
anything you know.
L:
Yeah.
Accused:
Yeah, he only just touched you there didn’t he?
L:
Nah, he, he properly raped me.
Accused:
Pardon?
L:
He properly raped me.
Accused:
He properly?
L:
Raped me, wasn’t just touching.
Accused:
Yeah, but this is um … and the support workers that
Michael Mackie have been saying to you isn’t it?
L:
Yeah.
Accused:
Yeah, but it’s good you’re making progress isn’t it
[L]?
L:
Yeah I’m making progress.
[37]
Then after discussion about Rainbows End the accused carried on to
ask [L] about when she attended Greenlane Hospital following the incident:
Accused:
But ah to that Doctor, you indicated that there was
no intercourse eh?
L:
Yeah, and then I changed my story.
Accused:
Yeah, because someone told you to change your
story aye?
L:
No-one, no-one told me to change my story. I just
didn’t, I felt um ashamed.
Accused:
Yeah.
L:
So I never said anything.
Accused:
Yeah, yeah, but see [L] what happened was that in
the car, remember, can you recall um when he
touched you in the back seat?
L:
Yeah.
Accused:
With, before the intercourse you got away didn’t
you?
L:
No I didn’t.
Accused:
Yes, you ran away and you went round the
L:
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.
L:
I know what happened!
Accused:
Yeah.
L:
I know what happened.
Accused:
Yeah, but there was no intercourse.
L:
(No answer.)
Accused:
Because um because it was just as lucky that you got
away before anything happened.
L:
No, I know what happened.
…
Accused:
Yeah, yeah, yeah. But see um because people have
been pressuring you to tell lies isn’t it?
L:
Am I telling lies?
Accused:
No, the people have been encouraging you.
L:
People are encouraging me to tell lies?
Accused:
Yeah.
L:
No-one’s encouraging me to tell lies.
[10]
Three matters of explanation or background require mention. First, phone
calls made from prison by a prisoner are preceded by the following advice:
You are about to receive a call from a prisoner. Press 0 to accept it and 1 to
reject it.
Mr Kumar circumvented this warning by ringing his mother who, by one means or
another, enabled Mr Kumar to make telephone calls, including those to L, not
preceded by the “prisoner calling” alert.
[11]
Second, when he spoke on the phone to L on 8 June, Mr Kumar had asked L
about her “flashbacks” to the incident resulting in his conviction for rape. So there
had been a prelude to Mr Kumar asking L on 13 June about her recall of the incident.
[12]
Third, Mr Kumar had telephoned his brother from prison on 9 June. He told
his brother about his contact the previous day with L and said “If I get a re-trial then
I can do something … I can make some contacts … I have to work systematically”.
The law
[13]
Mr Lithgow QC’s summation for us of the law in New Zealand is accurate,
and admirably succinct: “… you can attempt to persuade [a witness] provided you
do not attempt, by pressure, to bring forth or suppress evidence against the witness’s
honest and free position.”
[14]
The offence under s 117(e) of the Crimes Act 1961 aims to protect the
process and procedures of the court.3 It comprises an act which has the tendency to
pervert the course of justice coupled with an intention so to pervert.
[15]
Mr Lithgow rightly stressed to us that an action, apparently an attempt to
pervert the course of justice, may actually be legitimate. This was the point this
Court made in R v Meyrick.4 Observing that s 117(e) “is by no means unproblematic
3
4
McMahon v R [2009] NZCA 472 at [87].
R v Meyrick CA513/04, 14 June 2005.
and sometimes calls for broad evaluative judgments”,5 the Court cited the remarks of
McCarthy J in this Court in R v Coneybear:6
... Of course there are some acts whose effects may make the task of a
prosecution more difficult but which yet cannot fairly be said to obstruct,
prevent, pervert or defeat because they are merely the exercise of what the
law accepts as the legitimate right of an individual. … Each particular
action, therefore, must be viewed in its own surrounding circumstances.
[16]
The decision of the English Court of Appeal in R v Kellett,7 and that of this
Court in R v Taffs,8 explain the essence of the s 117(e) offence. In Taffs, this Court
described the ratio of Kellett in these terms:9
… there may be an intention to pervert or defeat the course of justice if, once
legal proceedings are in motion, they are not allowed to flow unobstructed
and undiverted: perjury should be exposed and truth ascertained only by
examination and cross-examination of witnesses in open Court, and justice
should be administered in the way which is ordinarily pursued: it is lawful
to try to dissuade a witness from committing perjury by reasoned arguments
supported by material facts and documents, but threats or other improper
pressure take the interference across the line and into criminality.
[17]
Mr Taffs was a barrister defending an accused charged with kidnapping and
robbing a schoolboy. Mr Taffs’ investigations persuaded him that the evidence the
schoolboy had given at the depositions hearing was false. The day before the trial,
Mr Taffs rang the schoolboy’s mother, who was also a barrister and solicitor.
Mr Taffs threatened the mother that, if the boy persisted in giving the same evidence,
he would “mince the boy up in court tomorrow”, “crucify him”, adding the boy
would be “publicly humiliated as a liar and a homosexual”.
[18]
In Taffs this Court adopted Kellett for New Zealand, stating:10
… threats or other improper pressure intended to lead a potential witness not
to give evidence or to alter his proposed evidence transgress s 117, no matter
whether or not the person uttering the threats or applying the other pressure
believes that the proposed evidence would be false. It will always be for the
jury or other tribunal of fact to determine whether what was said was meant
as a threat or other form of improper pressure. Marginal cases may arise and
are best left to the tribunal of fact …
5
6
7
8
9
10
At [40].
R v Coneybear [1966] NZLR 52 (CA) at 56.
R v Kellett [1976] QB 372 (CA).
R v Taffs [1991] 1 NZLR 69 (CA).
At 72.
At 73.
[19]
Also relevant is this Court’s decision in Mitchell v R.11 Posing as a person
conducting a survey about police treatment, the appellant telephoned the
complainant who had made to the police a complaint of indecent assault by the
appellant’s fiancé. The appellant told the complainant the alleged assaulter could
face seven years in prison if the complainant pursued her allegation. The appellant
also told the complainant she would face cross-examination if she gave evidence.
The complainant said in evidence that she considered the telephone call was an
attempt to scare her and put her off giving evidence in court. This Court upheld the
appellant’s conviction under s 117(e).
Our view of the submissions on appeal
[20]
Mr Lithgow submitted that Mr Kumar had good grounds for questioning the
evidence L had given at his trial, and in particular in seeking to ascertain why L had
changed her story.
Indeed, Mr Lithgow submitted Mr Kumar was justified in
seeking to understand why L had been interviewed by the police for a second time on
26 May 2009, some seven and a half months after she first complained to the police,
on the evening of the incident on 8 October 2008, that she had been indecently
assaulted. In that second interview L alleged for the first time Mr Kumar had raped
her.
[21]
We assume those were proper concerns.
As Venning J pointed out,
Mr Kumar was represented at the time he telephoned L in June 2011 by competent
counsel, and was also still engaging a private investigator who could have made
inquiries for him. We agree with the Judge “if, as on his version [Mr Kumar] wished
to get to the truth of the matter, there were sources available for proper inquiries to
be made”.12
[22]
Mr Lithgow submitted that Venning J had incorrectly conflated Mr Kumar’s
subterfuge of posing as Dr Singh with improper means. We do not accept this. We
see no error in the way Venning J dealt with this:
11
12
Mitchell v R [2011] NZCA 289.
Verdicts and Reasons for Verdict, above n 2, at [43].
[50]
The accused knew [L] was unstable mentally, he misrepresented he
was a doctor to gain her trust, and then engaged her in conversation to build
up a rapport before challenging the evidence she had given. In doing so he
employed improper means.
[23]
Further, we see no error in Venning J’s finding that Mr Kumar’s subterfuge
evidenced Mr Kumar’s intention in telephoning L. This was the Judge’s finding:
[48]
I am satisfied beyond reasonable doubt that the accused made both
calls on 8 and 13 June that I have referred to, to [L] 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 [L] had already given her evidence, if a retrial was granted, as the
accused hoped it would be as a result of the appeal, [L] would have had to
give her evidence again. The accused clearly intended to influence her.
[24]
We reject Mr Lithgow’s submission that Mr Kumar pretended to be a doctor
only to enable the conversation with L to take place, and not to get L to change her
story.
[25]
In [9] above we have quoted [36] and [37] of Venning J’s reasons for verdict.
Mr Lithgow accepted that those paragraphs record Mr Kumar putting forcefully to L
three times in different ways his suggestion that there had been no sexual
intercourse, that Mr Kumar had only “just touched (her)”. Mr Lithgow submitted
that Venning J had gone too far when he found these passages evidenced Mr Kumar
seeking “to bully L, a person he knew to be vulnerable”.13
[26]
Again, we cannot accept this. When Mr Kumar’s first telephone call of
13 June 2011 is placed in its context, there cannot have been reasonable doubt about
what he was up to. The point of his posing as a psychiatrist assisting Dr Pillai was
obvious:
it gave him considerable authority and thus added persuasive power
suggesting to L that her recollection was faulty, and that she had been indecently
touched but not raped. It gave him a much better chance of having L express to
support and health workers doubts about the evidence she had given, and ultimately
of changing or withdrawing it.
[27]
To summarise, we agree with Venning J that Mr Kumar used improper means
for the improper end of attempting to have L change or abandon the account she had
13
At [59].
given on oath in evidence in Mr Kumar’s trial, thereby wilfully attempting to pervert
the course of justice.
Result
[28]
The appeal against conviction is dismissed.
[29]
The appeal against sentence, having been abandoned, is also dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent