Amit Kumar v The Queen - [2020] VSCA 103

SUPREME COURT OF VICTORIA
COURT OF APPEAL

S EAPCR 2020 0057

AMIT KUMAR	Applicant
v
THE QUEEN	Respondent

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JUDGES:	PRIEST and BEACH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	30 April 2020
DATE OF JUDGMENT:	30 April 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 103
JUDGMENT APPEALED FROM:	R v Kumar [2018] VSC 241 (Croucher J)

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CRIMINAL LAW – Appeal – Conviction – Application for extension of time to appeal – Applicant convicted of contravening a family violence safety notice, aggravated burglary and intentionally causing injury – Complaints about counsel’s conduct of the trial – Contention that the verdicts are unsafe and unsatisfactory – Lack of merit in proposed appeal – Application refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	In person
For the Respondent	‘Madam Prosecutor’	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
BEACH JA:

Introduction

Amit Kumar, who is unrepresented, applies for an extension of time within which to make an application for leave to appeal against conviction.

Since it is plain that the application for leave to appeal against conviction is hopeless, it would be futile to grant an extension of time. The application for extension of time must be refused. Our reasons follow.

Convictions and sentence

Upon arraignment in the Supreme Court on 11 April 2018, the applicant pleaded not guilty to contravention of a family violence safety notice intending to cause fear for safety[1] (charge 1); aggravated burglary[2] (charge 2); attempted murder (charge 3); alternatively, intentionally causing serious injury[3] (charge 4); and, alternatively, recklessly causing serious injury (charge 5).
[1]Family Violence Protection Act 2008, s 37A(2). The maximum penalty is five years’ imprisonment.
[2]Crimes Act 1958, s 77(1). The maximum penalty is 25 years’ imprisonment.
[3]Crimes Act 1958, s 16. The maximum penalty is 20 years’ imprisonment.

Following a trial, at which the applicant did not give evidence, a jury acquitted the applicant of attempted murder, but found him guilty of the family violence charge, aggravated burglary and intentionally causing injury (making it unnecessary to take a verdict on the charge of recklessly causing serious injury). The applicant subsequently pleaded guilty to the summary offence of committing an offence whilst on bail.[4]
[4]Bail Act 1977, s 30B. The maximum sentence is three months’ imprisonment.

On 18 May 2018, the trial judge imposed a total effective sentence of seven years’ imprisonment on the applicant,[5] with a non-parole period of four years.
[5]The judge sentenced the applicant to six months’ imprisonment on charge 1; four years’ imprisonment on charge 2; and six years’ imprisonment on charge 4. It was directed that one year of the sentence on charge 2 (aggravated burglary) be served cumulatively upon the sentence on charge 4 (intentionally causing serious injury), and that all other sentences be served concurrently. On the summary charge the applicant was convicted and discharged.

The applications in this Court

More than a year after he was sentenced, the applicant filed a notice of application for leave to appeal…

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 Amit Kumar v The Queen

Details

AGLC: Amit Kumar v The Queen [2020] VSCA 103
Case: [2020] VSCA 103
Decision Date: 30 April 2020

CaseChat Overview and Summary

Amit Kumar appealed his conviction and sentence, seeking an extension of time to appeal. Kumar had been found guilty of contravening a family violence safety notice, aggravated burglary, and intentionally causing injury. Kumar argued that the trial had been unfair due to perceived deficiencies in his legal representation. He contended that these issues rendered the verdicts unsafe and unsatisfactory, necessitating a new trial.

The court was required to determine the merits of Kumar’s complaints about his trial counsel and whether these complaints were substantial enough to warrant a new trial or appeal. The court also had to consider whether Kumar’s proposed grounds for appeal had any merit. Kumar’s arguments centred on alleged errors in the conduct of his defence counsel during the trial, which he claimed had prejudiced his right to a fair trial.

The court found that Kumar’s complaints about his trial counsel did not establish any significant errors that would undermine the fairness of the trial or the safety of the verdicts. The court noted that the trial was conducted in a manner consistent with legal standards, and there was no basis to conclude that the verdicts were unsafe or unsatisfactory. Furthermore, the court assessed the proposed grounds of appeal and found them to be without merit. As a result, the application for an extension of time to appeal was refused.

Orders