Police v Kumar - [2024] NSWLC 9

Local Court

New South Wales

Medium Neutral Citation: Police v Kumar [2024] NSWLC 9
Hearing dates: 12 December 2024
Date of orders: 13 December 2024
Decision date: 13 December 2024
Jurisdiction: Criminal
Before: Deputy Chief Magistrate Tsavdaridis
Decision:
(1) I extend the time within which the Prosecution may file a charge certificate to 17 December 2024.
(2) For the purposes of further case management, the matter is adjourned for reply and charge certification to 17 December 2024.
(3) Bail is to continue.
(4) The defendant is excused if legally represented.
See also Notation after paragraph 37

Catchwords:
CRIMINAL LAW - Charge certification - EAGP Scheme - Prosecution application to extend time within which to file charge certificate - Defence application to discharge defendant - ‘in the interests of justice’ - ‘exceptional circumstances’ - ‘special circumstances’

Legislation Cited:
Crimes Act 1900 (NSW), s 61I
Criminal Procedure Act 1986 (NSW), ss 8(2), 66(2)(a), 67, 67(2), 67(3), 67(3)(b), 67(4), 68, 68(2)(b)
Director of Public Prosecutions Act 1986 (NSW), s 7(2)(c)
Interpretation Act 1987 (NSW), s 34
Justice Legislation Amendment (Committals and Guilty Pleas) Act 2017 (NSW)

Cases Cited:
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41
Elwood v Director of Public Prosecutions [2023] NSWSC 772
Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503; [2012] HCA 55; 250 CLR 503
Harrison v Melhem (2008) 72 NSWLR 380; [2008] NSWCA 67
Herron v Attorney-General for New South Wales (1987) 8 NSWLR 601
Issa v The Queen [2017] NSWCCA 188
Kelly v Motor Accidents Authority (NSW) [2006] NSWSC 1444; (2006) 46 MVR 553
Zahed v Director of Public Prosecutions (NSW) [2023] NSWSC 368

Texts Cited:
New South Wales, Parliamentary Debates, Legislative Assembly, 11 October 2017

Category: Procedural rulings
Parties: NSW Police (Prosecution)
Kamal Kumar (Defendant)
Representation: Solicitors:
Ms C Chapman, Sgt (Police Prosecutor)
Mr Z Khatiz (Solicitor for Defendant)

File Number(s): 2024/214468 (Charge No: H81472149)

EX TEMPORE JUDGMENT - REVISED

Overview

In these proceedings, the Prosecution makes an application to extend the time within which to file a charge certificate pursuant to s 67(3) of the Criminal Procedure Act 1986 (NSW).
The application is opposed by the Defence.
The defendant is charged with one count of sexual intercourse without consent (a strictly indictable charge), contrary to s 61I of the Crimes Act 1900 (NSW).
The events the subject of these proceedings are said to have taken place on or about 12 June 2024. The charge was laid on 13 June 2024, and the mention on 12 December 2024 represents the 6-month mark since the laying of the Court Attendance Notice.
The matter has come before the Court on the following occasions: -

13 June 2024.

8 August 2024.

September 2024.

3 October 2024.

17 October 2024.

14 November 2024.

26 November 2024.

12 December 2024.

13 December 2024.

On each occasion, the matter was mentioned as part of the Early Appropriate Guilty Plea (EAGP) Scheme, with…

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 Police v Kumar

Details

AGLC: Police v Kumar [2024] NSWLC 9
Case: [2024] NSWLC 9
Decision Date: 13 December 2024

CaseChat Overview and Summary

The case of Police v Kumar involved a dispute regarding the certification of a charge under the EAGP Scheme. The defendant, Mr Kumar, was facing a criminal charge and the prosecution sought an extension of time to file a charge certificate. In response, the defence applied to discharge Mr Kumar, arguing it was in the interests of justice to do so. The matter was heard in a relevant Australian court, where the presiding judge was tasked with determining whether the prosecution's application to extend the time for filing the charge certificate should be granted, and whether the defence's application to discharge Mr Kumar should succeed.

The legal issues before the court centred on the interpretation and application of the relevant statutory provisions governing the EAGP Scheme and the principles underpinning the grant of an extension of time for filing a charge certificate. Additionally, the court had to consider the criteria for discharging a defendant, specifically whether exceptional or special circumstances existed that warranted such a discharge. The court also had to balance the rights of the defendant against the public interest in ensuring that criminal charges are properly pursued and managed.

In its reasoning, the court found that the prosecution had provided a satisfactory explanation for the need to extend the time for filing the charge certificate, and that there were no exceptional or special circumstances that justified discharging the defendant. The court acknowledged the importance of both the defendant's rights and the need to ensure that the criminal justice system operates efficiently and effectively. The judge concluded that the extension of time was warranted and that discharging the defendant would not be in the interests of justice. Consequently, the prosecution was granted an extension to file the charge certificate, and Mr Kumar's application to be discharged was dismissed.

The final orders of the court were to extend the time for the prosecution to file the charge certificate to 17 December 2024, to adjourn the matter for further case management and charge certification on that date, to continue Mr Kumar's bail, and to excuse him if legally represented.

Orders

Orders of the court

(1) I extend the time within which the Prosecution may file a charge certificate to 17 December 2024.

(2) For the purposes of further case management, the matter is adjourned for reply and charge certification to 17 December 2024.

(3) Bail is to continue.

(4) The defendant is excused if legally represented.

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Police v Kumar [2024] NSWLC 9
Hearing dates:	12 December 2024
Date of orders:	13 December 2024
Decision date:	13 December 2024
Jurisdiction:	Criminal
Before:	Deputy Chief Magistrate Tsavdaridis
Decision:	(1) I extend the time within which the Prosecution may file a charge certificate to 17 December 2024. (2) For the purposes of further case management, the matter is adjourned for reply and charge certification to 17 December 2024. (3) Bail is to continue. (4) The defendant is excused if legally represented. See also Notation after paragraph 37
Catchwords:	CRIMINAL LAW - Charge certification - EAGP Scheme - Prosecution application to extend time within which to file charge certificate - Defence application to discharge defendant - ‘in the interests of justice’ - ‘exceptional circumstances’ - ‘special circumstances’
Legislation Cited:	Crimes Act 1900 (NSW), s 61I Criminal Procedure Act 1986 (NSW), ss 8(2), 66(2)(a), 67, 67(2), 67(3), 67(3)(b), 67(4), 68, 68(2)(b) Director of Public Prosecutions Act 1986 (NSW), s 7(2)(c) Interpretation Act 1987 (NSW), s 34 Justice Legislation Amendment (Committals and Guilty Pleas) Act 2017 (NSW)
Cases Cited:	Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41 Elwood v Director of Public Prosecutions [2023] NSWSC 772 Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503; [2012] HCA 55; 250 CLR 503 Harrison v Melhem (2008) 72 NSWLR 380; [2008] NSWCA 67 Herron v Attorney-General for New South Wales (1987) 8 NSWLR 601 Issa v The Queen [2017] NSWCCA 188 Kelly v Motor Accidents Authority (NSW) [2006] NSWSC 1444; (2006) 46 MVR 553 Zahed v Director of Public Prosecutions (NSW) [2023] NSWSC 368
Texts Cited:	New South Wales, Parliamentary Debates, Legislative Assembly, 11 October 2017
Category:	Procedural rulings
Parties:	NSW Police (Prosecution) Kamal Kumar (Defendant)
Representation:	Solicitors: Ms C Chapman, Sgt (Police Prosecutor) Mr Z Khatiz (Solicitor for Defendant)
File Number(s):	2024/214468 (Charge No: H81472149)