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Kumar v The Queen

Kumar v The Queen

Case [2014] VSCA 102 27 May 2014

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2014 0015
VINOD JOHNNY KUMAR	Applicant
v
THE QUEEN	Respondent

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JUDGES:	NETTLE, REDLICH JJA and ALMOND AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	27 May 2014
DATE OF JUDGMENT:	27 May 2014
MEDIUM NEUTRAL CITATION:	[2014] VSCA 102
JUDGMENT APPEALED FROM:	DPP v Kumar (Unreported, County Court of Victoria, Judge Hampel, 20 November 2013)

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CRIMINAL LAW – Conviction – Multiple sexual offences on disabled persons within supported care accommodation – Whether conviction a miscarriage of justice – Delay – Renewal of application for extension of time to file Notice of Appeal – R v Darby (Unreported, Supreme Court of Victoria, 2 May 1975); R v O’Keefe [1979] VR 1; Bowling v R [2013] VSCA 87; Soteriou v R [2013] VSCA 328 referred to – Application dismissed.

CRIMINAL PROCEDURE – Plea – Whether judge erred in not accepting change to plea of guilty prior to sentencing – Whether guilty plea a true admission of guilt – Whether plea not true admission of guilt because entered in hope or with expectation of ‘technical advantage’ – Need for evidence to establish that guilty plea not true admission of guilt – Interlocutory appeal – Whether review of refusal to certify ‘an appeal’ for purposes of s 297(3) of Criminal Procedure Act 2009 – No error shown – Maxwell v The Queen (1996) 184 CLR 501; Meissner v The Queen (1994) 184 CLR 132, referred to – Criminal Procedure Act 2009 s 297(3).

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APPEARANCES:

Counsel

Solicitors

For the Applicant

Mr P S Kilduff

Robert Stary Lawyers

For the Crown

Dr N Rogers SC

Mr C Hyland,

Solicitor for Public Prosecutions

NETTLE JA

REDLICH JA
ALMOND AJA:

This is a renewal of an application for extension of time in which to apply for leave to appeal against conviction of eight charges of rape, one charge of sexual penetration by a worker at a facility of a person with a cognitive impairment, one charge of indecent act by a worker at a facility of a person with a cognitive impairment and one charge of indecent assault.

The applicant was charged with those offences on 21 March 2012 and has been in custody ever since. A contested committal hearing began on 4 March 2013 and ran for four days. At the conclusion of the hearing, he pleaded guilty to all charges. On 17 April 2013, he was arraigned before a judge of the County Court and pleaded guilty to all charges on the indictment.

Subsequently, during the course of conferences with his legal advisers, he began to have second thoughts about his plea and, consequently, on 9 May 2013, he appointed his present solicitors in place of his previous solicitors. On 15 July 2013, his present solicitors notified the County Court that he wished to withdraw his plea and plead not guilty to all charges.

A change of plea hearing was held before a judge of the County Court over four days beginning…

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 The Queen

Details

AGLC: Kumar v The Queen [2014] VSCA 102
Case: [2014] VSCA 102
Decision Date: 27 May 2014

CaseChat Overview and Summary

Kumar was charged with multiple sexual offences committed against disabled persons within supported care accommodation. The appeal was brought against his conviction and sentence. The primary judge dismissed Kumar’s application to appeal against his conviction and sentence, and Kumar sought leave to appeal to the Court of Appeal against the primary judge’s decision. Kumar sought an extension of time to file a Notice of Appeal, claiming that the delay in filing the Notice was not attributable to him and that there was a arguable appeal against conviction. The Court of Appeal considered Kumar’s application for an extension of time, and the legal issues were whether the delay was excusable and whether there was an arguable appeal against conviction.

The Court of Appeal held that Kumar’s application for an extension of time to file a Notice of Appeal was dismissed. The Court held that the delay in filing the Notice was not excusable, and that Kumar had not shown that there was an arguable appeal against conviction. The Court noted that Kumar had not provided a satisfactory explanation for the delay in filing the Notice of Appeal, and that the delay was significant. The Court also held that Kumar had not shown that there was an arguable appeal against conviction, as the primary judge had considered all the evidence and had made findings of fact that were open to him on the evidence.

The Court of Appeal held that the application for an extension of time to file a Notice of Appeal was dismissed, and that Kumar’s appeal against conviction and sentence was therefore precluded. The Court noted that the primary judge had considered all the evidence and had made findings of fact that were open to him on the evidence. The Court held that Kumar had not shown that there was an arguable appeal against conviction, and that the delay in filing the Notice of Appeal was not excusable. The Court held that the primary judge’s decision was correct, and that there was no error shown.

Orders