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Kumar v Police

Kumar v Police

Case [2018] NZHC 3202 11 December 2018

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2018-404-187

[2018] NZHC 3202

BETWEEN
SUMIT KUMAR

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 13 November 2018

Counsel:

J A Kincade and A Shendi for Appellant

R M A McCoubrey and A C L Palmer for Respondent

Judgment:

11 December 2018

JUDGMENT OF BREWER J

This judgment was delivered by me on 11 December 2018 at 3:30 pm pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

Solicitors:
Meredith Connell (Auckland) for Respondent

KUMAR v POLICE [2018] NZHC 3202 [11 December 2018]

Introduction

[1] On 23 March 2018, following a Judge alone trial, Judge PA Cunningham convicted Mr Kumar on a charge of indecent assault.1

[2] Mr Kumar appeals his conviction. He contends justice miscarried because he was not told he had a right to trial by jury and because he was not given adequate advice on whether he should give evidence at his trial (he elected not to give evidence).

[3]My task is to decide whether a miscarriage of justice has occurred:2

… miscarriage of justice means any error, irregularity, or occurrence in or in relation to or affecting the trial that—

(a)has created a real risk that the outcome of the trial was affected; or

(b)has resulted in an unfair trial or a trial that was a nullity.

Background

[4] Mr Kumar and the complainant worked at a fast-food shop. On 2 June 2017, after the shop had closed, Mr Kumar and the complainant started to clean up and put food into refrigerators. The complainant said Mr Kumar at one point blocked her path and kissed her, putting his tongue inside her mouth and putting his hand inside her t- shirt, pushing it down the waistline of her pants to her buttock. The complainant said she tried to push Mr Kumar away but he persisted and groped her breast, unhooking her bra. The complainant threatened to make trouble for Mr Kumar if he persisted and he stopped what he was doing.

[5] When spoken to by the Police, Mr Kumar denied touching the complainant but said she had asked him for money and he had refused to give it to her.

The Appeal

[6] Mr Kumar’s appeal is not brought on the basis justice miscarried because the trial Judge either misunderstood the evidence or made decisions not properly founded

1 Police v Kumar [2018] NZDC 5829.
2 Criminal Procedure Act 2011, s 232(4).

by the evidence. An appeal on that basis could not succeed. The Judge heard evidence from the complainant, the restaurant owner (who was told of the incident and gave evidence of what both parties told him about it), the owner’s wife, and the police officer who spoke to Mr Kumar and arrested him. The Judge also had the benefit of propensity evidence about a very similar incident which occurred on 1 August 2016. Mr Kumar was charged with indecent assault in respect of that incident. The charge…

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 Police

Details

AGLC: Kumar v Police [2018] NZHC 3202
Case: [2018] NZHC 3202
Decision Date: 11 December 2018

CaseChat Overview and Summary

In Kumar v Police, the High Court of New Zealand was tasked with determining whether a miscarriage of justice had occurred in Mr Kumar's trial for indecent assault. Mr Kumar contended that his right to a jury trial was not properly communicated to him and that he was inadequately advised about the potential benefits and risks of giving evidence at trial. The court had to decide if these alleged errors led to a miscarriage of justice under the Criminal Procedure Act 2011. The court found that Mr Kumar's right to elect a jury trial was indeed not communicated to him, leading to an unfair trial and a miscarriage of justice. The court quashed Mr Kumar's conviction and ordered a retrial. However, the court concluded that the advice given to Mr Kumar about whether to give evidence was sufficient, and therefore no miscarriage of justice occurred on this point.

Orders